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Raynham, Massachusetts.  Incorporated 1731

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Planning Board minutes March 15, 2012
The Raynham Planning Board held a meeting on Thursday, March 15, 2012, at Raynham Veterans' Memorial Town Hall. The meeting was opened at 6:15 p.m. by Chairman Daniel Andrade.

Board members present: Daniel Andrade, Burke Fountain, Christopher Gallagher, Russell Driscoll, Henry Ellis

Staff present: Administrative Assistant Maureen McKenney

6:15 p.m. - Form A for Locust Street was tabled to later date.

6:16 p.m. – The Board briefly recessed to read correspondence, dated March 15, 2012, which was received from Attorney Paul Adams.
6:21 p.m. - Awais Farms public hearing was reconvened. Attorney P. J. Adams, Brockton, MA, was present on behalf of applicant along with Nyles Zager, P. E., Outback Engineering, Middleborough, MA. Mr. Andrade explained that the Board received a letter dated March 1, 2012 from Town Counsel Marc Antine regarding their questions on the easements, and the Board forwarded Attorney Antine’s letter to Attorney Adams, requesting that he respond to the March 1 letter by March 8, 2012, one week prior to the next hearing date. It was noted that Attorney Adams’ response was received just prior to the March 15th hearing and was not able to be forwarded to Attorney Antine to get his response for the hearing.

Mr. Ellis noted the Board needed to act tonight or get an extension from applicant.

Mr. Andrade noted the two concerns are the easements if the Town accepts the road and the on-site inspection for perc tests.  Mr. Gallagher discussed that in previous years, he had difficulty passing perc tests at the site, and the previous Awais Farms Certificate of Action (COA) addressed that issue as does the new plan. He noted the issue now is the easements and he believes Attorney Antine's letter puts that “onus” on Attorney Adams regarding that issue. Mr. Gallagher felt the trees in the easement can not be taken without cooperation from the property owners, noting the Board did not ask Attorney Antine previously about removing the trees.

Mr. Gallagher suggested continuing the hearing to April 5th so Attorney Antine could review Attorney Adams' letter, which Mr. Gallagher noted was received tonight, and give a definitive opinion.  Mr. Andrade said he was comfortable with continuing but noted the Planning Board must decide the matter. Mr. Fountain noted the case is complicated and would require much research by Town Counsel.

Attorney Adams suggested the Board ask Attorney Antine if the applicant could prevent the Town from accepting the road. He noted the applicant can reserve the fee in the road by deed or restrict deeding to the Town. Mr. Gallagher discussed past instances when rights to roads have been reserved and then overturned in court due to a Town Meeting vote to accept a road.

Mr. Andrade discussed his concern that if the road was accepted by the Town, the easements would be turned back to the owners. He questioned if there is a way to never have the road accepted. Mr. Fountain felt there was no way and noted the easements would need to be taken and paid for.  He suggested a note could be put on the plan.

Attorney Adams discussed that the property owners could someday petition the Town to take the road but would need to consider payment to the owners of Lots 15 and 16.

Mr. Fountain said he would like to hear briefly from the project engineer if there were issues other than the easement to consider. Mr. Gallagher noted the COA addressed the perc test issue and the waivers.

Mr. Andrade discussed that he could not vote for the plan on the basis of the easements and his concern the easements would be gone if the road was accepted, causing concern that the Town will not have access to the road if needed. Mr. Gallagher noted there was also the issue of the trees.

Wording for a condition for perc testing was discussed.  Mr. Fountain suggested Mr. Gallagher should be present at the testing.

Attorney Adams asked Mr. Andrade if his basis for denying would be due to a possible future Town Meeting warrant.  Mr. Andrade explained he was not concerned with Town Meeting but with the temporary construction easements going away if the Town were asked to accept the road and because of harm and nuisance to the neighbors due to the view, the loss of trees, the high road elevation, and the high water table and wet land.

Mr. Gallagher stated he does not feel the abutters' property can be permanently altered by the easements. Mr. Ellis noted the basis would be if the Board feels the easements are not adequate not because of a future Town Meeting vote.

During discussion, it was noted no new waivers are requested with the resubmitted plan.  Mr. Fountain asked if the three waivers for the closed drainage system and water supply were the only waivers now needed.  Mr. Adams noted the Board's engineer did not identify any others.

Board members discussed whether or not to send a letter to Town Counsel for further opinion. Mr. Fountain thanked Attorney Adams for his letter.  Attorney Adams suggested the Board give Attorney Antine the opportunity to respond to his letter.  He stated applicant will prevail if the matter goes to court because the easements are reserved for the purpose of a subdivision road.

Mr. Andrade disagreed with Attorney Adams, noting that in 1972 the high water table did not come into play.  Attorney Adams discussed fundamental principles of easement law.  Mr. Andrade disagreed, noting construction easements cannot be filled and are to be turned back to the abutters without a change in topography. Mr. Ellis stated because of the way the road is to be constructed, the easements are inadequate.

After discussion, Attorney Adams informed the Board he would say no to an extension of time-to-act and asked the Board to act.

Mr. Andrade asked if anyone had new information to present. Joseph Cardoso, 42 Bridge Street, spoke and stated he may have an option before the Board closes the hearing. The Board agreed they could only consider the plan as presented. The public hearing portion was closed (7:10 p.m.).

During discussion, it was agreed to add language to Note 2 on the COA regarding witnessing of the perc tests. Waivers were discussed. The height of the guardrails was discussed. It was noted the Board had concern with the aesthetics and safety. It was noted the new plan is in compliance with the cross-section per the regulations.

After discussion, Mr. Fountain moved to deny the subdivision known as Awais Farms as set forth on plan by Outback Engineering, Inc., dated November 24, 2010, last revised February 2, 2012, for the following reasons:  the raised roadway and accompanying guardrail do not adequately address safety and aesthetics as called for in the Board’s rules and regulations and the Town zoning laws; that Sec. 8.8a, does not obviate the need for fencing and screening and changes in the natural drainage pattern, and consistent vegetative cover; Sec. 8.9 p and 8.19, there is concern with the danger of additional flooding on abutting properties, the Board finds the easements as set forth in previous deeds and on previous plans are inadequate for proper slope and construction and protection of both the roadway itself and the abutting properties; if the decision of the Board should ever be overturned or if the applicant should resubmit, the  Board would require the roadway remain private and never be accepted as a public way.  The Board would also require a landscaping plan be presented showing the planting of Blue Spruce or similar trees on the abutting land, which would be disturbed in the construction; the Board further would require, due to the question of whether the soils are adequate, site soil analysis and percolation tests, in accordance with Title 5 of the State sanitary code, be performed to verify site soils are compatible with soil survey maps and infiltration rates used in the drainage analysis; the amount of tests and locations of the tests shall be determined by the Planning Board or its agent and witnessed by a member of the Planning Board or its agent. The three waiver requests, which were approved by the Planning Board from Sec. 8.2 c, closed drainage, waiver is granted to not provide catch basins in a cul-de-sac; Sec. 8.2 i, closed drainage system, to allow Class V pipe to be installed so the cover over the pipe can be less than 36 inches, and, Sec. 8.14 b, water supply, to allow dead end water line based on the findings of the North Raynham Water District that it is adequate; second by Mr. Ellis; motion to deny passed by unanimous (5) vote.

7:31 p.m. – South Street East proposed zoning amendment:  Peter Bumila, Twin Towers Realty Trust, Raynham, MA, appeared before the Board and presented proposed articles for Town Meeting to amend the zoning a parcel of land on South Street East from Residential A to Residential C and to amend a second parcel from Residential C to Residential A.

Mr. Ellis asked the reason for the amendments. Mr. Gallagher explained it was determined that Residential C property off South Street East cannot be accessed via a roadway through the Residential A property so the proposed rezoning will create a better situation. Mr. Bumila noted the access roadway is the only way for construction trucks to access the Residential C site without going through the mobile home park. The roadway will be blacktopped and gated. It was noted some park residents use the road when the gate is open.

Mr. Gallagher moved that the Planning Board sponsor the proposed zoning amendment with the condition that the article be written by Twin Towers; second by Mr. Ellis; motion passed by unanimous vote (5). Mr. Bumila submitted the proposed two articles. Public hearing was set for April 19th.

It was agreed the Board will notify Mr. Bumila if the article is approved by the Attorney General's office so he can provide the Board with an accurate copy of the plan.

7:42 p.m. - Performance Plus site plan: Attorney William Rounds, Taunton, MA, appeared before the Board to request a modification to the approved site plan. John DeSousa, P.E., Seacoast Consulting, was also present. Attorney Rounds submitted a list of proposed changes, noting he believed they are minor modifications.

Board members reviewed the requested modifications with Attorney Rounds. Mr. Gallagher asked if there were changes to the grades on site. Attorney Rounds stated no. Mr. Gallagher and Mr. DeSousa discussed the proposed changes.

After discussion, the Board agreed they had no issue with item No. 1, moving the original access/egress and adding second access/egress; no issue with No. 2, redesigning the parking area; item No. 3, the proposed concrete berm is acceptable if bollards replace the wheel stops; No. 4, lowering the foundation by three feet is okay; and, item No. 5, the walkway being reduced to five feet is okay.

After discussion, Board members agreed the proposed modifications to Performance Plus site plan were minor. Mr. Andrade moved to approve the minor modifications as presented with a revised plan to be submitted to the Board and applicant is to prepare a Certificate of Action; second by Mr. Gallagher; motion passed by unanimous vote. (Mr. Ellis left the meeting at 7:55 p.m.)

General Business: Mr. Fountain moved to approve to waive the reading and accept the minutes of March 1, 2012 as received; second by Mr. Gallagher; motion passed by unanimous vote (4).

The Board discussed a list of project review accounts that have funds to be released. Board members discussed whether or not applicants could donate the balance of their accounts to the Town, perhaps to the veterans' memorial account. Mrs. McKenney will look into the matter. Mr. Gallagher moved to release the project review funds; second by Mr. Driscoll; motion passed by unanimous vote.

There was no further business and the meeting adjourned at 8:00 p.m.

Respectfully submitted,

Christopher J. Gallagher, Clerk

Town of Raynham 558 South Main St., Raynham, MA 02767
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