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HomeMy WebLinkAboutPetition 1937 Minutes 05.12.83May 12, 1983 Pet. #1937 Johnstone Fitzgerald Members present: Donald Henderson, Thomas Kennedy, Augustine Murphy, Thomas George, Morris Johnson. The Chairman called the meeting to order and read the petition. All abutters were notified and the necessary correspondence was made in the Yarmouth Sun. Mr. Garnick, attorney, with Mr. Sweeney, attorney, representing petitioners: Mr. Garnick: I have submitted to the members of the Board, a copy of the plan, reduced size. I have the larger size. All we are looking for is approval to allow us to put a road through the property known as Oak Harbor subdivision. Mr. Henderson: The legal ad I read from said parcel 48, the ad as printed says lot 48... Mr. Garnick: We are dealing strictly with parcel 38. There is no lot 48 in the subdivision at all. We are here for 2 reasons - 1) the Planning Board suggested we come; 2) there is an outstanding special permit, and we should be here. We are here solely to obtain your approval for a road through lot 38. It was created out of the previously existing lots, to make a road. That is a result of an agreement between the Fitzgeralds, M. Reardon & Scott Jordon. They have no other access to their property, lot 4, unless this road is put in through the Oak Harbor subdivision. Mr. Sweeney, who represents them, will make a presentation. I want to stress, there is no intention now or in the future, to have this road to be connected to any other road in the subdivision. This is only from Nottingham Dr. for access to lot 4. Also in the memo, there are certain stipulations as to how many lots, etc. Mr. Sweeney, representing Lighthouse Assoc., present developers of Oak Harbor: The present developers are continuing to honor the previous agreement between his client and the previous developer, Because some members of the Board may not be familiar with the Oak Harbor project - that project is off Route 6A, made up of several subdivisoun lots. In red - lots where cluster condominiums will be created in the future. In blue - lots which are available for open space. In yellow, open space and also for swimming pools and tennis courts. The others are for service areas. The extension of Nottingham Drive will be at the top of the plan, to create access to the Fitzgerald property. The question you must ask yourselves is, what is the affect of this road on the density requirement with respect to the maximum number of units and the open space. To that end, I have a memo for you - it shows the original computations that were submitted at the prior hearing. It lists as headings, with numbers under, of: building lot numbers, number of units, total area required, square foot area available, square foot area needed from open lots, open space lots area available meeting 30% criteria, excess open space. In order to build those, it was necessary to have 6 million square feet available for the open space. We list that space. The total is 6 million, 370,459 square feet. We have 379,459 square feet more, or excess, than was required to build 750 units. That you can see, totals 8.5 acres. The next instrument is that portion of the portion that shows the calculation of the maximum number of units and open space. It was possible to build 844 units. The petitioner requested only 570 at that time, and left the remaining excess, open space, for additional open space, and for those purposes we are here for tonight. I have pointed out the affect on his requirement on open space. The road layout presented by Mr, Garnick, contains Pet. #1937 Page 2 37,782 square feet, 40,000 square feet rounded out. Subtract 40,000 from the open space area from the excess open space, 330,359, 7.59 acres left. It does diminish it, but leaves with over 71� acres of open space. Sec. 2 points out the new cal- culations based on the formula, subtracted out ... that means 840 units could still be built, Still only requesting 750. It does diminish the amount of units we could have requested, but we are not building that many. We have presently avail- able, excess open space. The last paragraph in the memo —the tenor of the agree- ment with the previous owners ... we have tried to honor, which indicates that if this approval is given, that it cannot affect the validity of our grant, etc., or the right to come back in the future for anything. If you do approve tonight, you include that language within your decision to approve. Mr. Henderson: We have a letter in the folder - Fire Dept., saying plans have been reviewed and there is nothing affecting the Fire Dept.; Board of Health letter says no subsurface sewage disposal system should be located under, nor within 10' of, the requested extension. Also, any road drainage, within this area, must be first approved by the Engineering Dept. and the Health Dept. to ensure that there will be no adverse effects on any subsurface sewage disposal systems within the area. The Conservation Comm. letter says Mr. John Newton will be talking for them at this hearing. The Planning Board recommends that if the petition is granted, the road be constructed according to the requirements of the rules and regulations of the Planning Board and it should be noted as a condition for approval of this petition that the frontage created by building the road in question not be used as the basis for an Approval Not Required plan creating lots in the open space traversed by the road, without further Board of Appeals approval. Mr. Kennedy: Your legal ad refers to lot 48 - you say this is for lot 38 - you are not concerned about that? Mr. Garnick: It is lot 38. No, I am not concerned with that. Mr. George: What use do the Fitzgeralds expect to make of the property? Mr. Garnick: They have plans to subdivide, a conventional grid. Other things have been discussed but the agreement says no more than 35 single family houses be allowed. They have already entered into an agreement with the project owners. That memo is on record. Mr. Johnson: One plan says "private road" and one says "town way". , Mr. Garnick: The old Nottingham Dr. is a town way, the new will be private until the town takes it. Mr. Henderson: What criteria should the Board apply - are you treating this as a special permit or what? Mr. Garnick: Just approval. No modification of the existing permit here. Just that the Board has no objection to where it will be placed ... we are not seeking any other approval from the Board but this. The Planning Board will not entertain anything with that property unless the easement is cleared up, and the approval of the placing of the road doesn't have any affect on the open space of Oak Harbor. We can't go back to them until that is done. Mr. George: So the Planning Board denied your plan. Pet. #1937 Page 3 Mr. Garnick: That was done 8 years ago that they denied. They didn't want to approve a plan where the Board of Appeals have the last say whether the road is approved. John Newton,representing Conservation Commission: We are not in favor or opposed. Just for clarification - the last paragraph on the first page of the letter from Burling to the Board of Appeals, dated August 6, 1982, there is a statement made - the release of these rights will be recorded... since the Fitzgeralds are the only owners beyond Hockanom Rd .... The Town of Yarmouth has 3 separate conservation par- cels - one is marshland, the one at the end of the straight section of Hockanom Rd., the other is just above Bray Farm Road. We don't want to lose any rights we have on the old Hockanom Road. It appears this might be a step to diminish those rights. It was diminished once. All we have left is an 8' wide traveled way. We don't want to see those rights diminish any more. Mr. Garnick: The reason for that letter was because when we first came here in- formally, he made some calculations —the purpose was not for that purpose only. We cannot give away any rights we don't have anyway. We only brought that letter... Mr. Newton: We don't have the benefit of that agreement... Mr. Garnick: I have plenty of copies of it, I will give you one. Mr. Newton: I would like a copy of it. I have a copy of the grant of easement. John Karras: I am not for or against right now. Mr. Fitzgerald sold land to Oak Harbor. At that time, he had a 33' right of way. He gave that up for an 8' ancient way. Now he is asking for a road to go over at another section of that property at a different angle. Oak Harbor had 840 units and they asked for a permit down to 750 units —they don't have all that open space any more. They lowered the units to 750, but they put other things in there. Mr. Carnick: I dont know what happened in land court. The agreement entered into by the Fitzgeralds in 1975 did indicate a road would be put straight across. I don't know why land court reduced the size of the road. It created a problem that was..... Mr. Sweeney: The calculations in front of you lists a whole series of lots and the calculations for the units indicated on those lots. What is not indicated on that list within the condominium or outside, and the various lots on the plan, is access, buildings. They do not affect the number of units, and the additional square footage available for those access.buildings. Mr. Karras: To get your permits, you had to reduce the number of units. Mr. Sweeney: That is not what my documentation stated. Mr. Henderson: We have all the old decisions with us and we will go over everything. Mr. Karras: When I made my development, I could have waived 100' frontage off that lot because they had a pit and baseball field. I could have stopped any develop- ment back there. Mr. Kennedy: Do I understand... it is your contention the road will diminish the Pet. #1937 Page 4 open space below the minimun? According to Mr. Sweeney, they have excess. Mr. Karras: Yes. They have excess for the 8' right of way, and only that. Mr. Sweeney: I have here, an unregistered plan of Oak Harbor Development before going into land court. It shows the location of Hockanom Rd.. That went to land court - it shows on that plan and it appears to me to be the same width. No road was ever reduced or taken away. The land court can't take anything away. The land court can only establish title. Mr. Smith: What is the legality of that agreement that says 35 house lots? Mr. Garnick: It is as binding as the parties will make it. There was only talk of having less lots, talk of never exceeding the limit. That is of record. Mr. Smith: Changing of ownership can change that. Mr. Henderson: A condition can be made with the grant if this is granted, no more than 35 lots. Mr. Garnick: We would have no objection to that. Abutter: How large is the Fitzgerald property? Mr. Garnick: 38 acres. Denise Murphy: The agreement between Oak Harbor and Fitzgerald.,. going across lot 38, what stops them from making a further agreement that they won't hook onto Oak Harbor? Mr. Garnick: Any change that takes place in Oak Harbor must come before this Board. Julie Kimball: They wont be able to just build, they have to have permits? Mr. Garnick: This is just for the road. They will have to come for permits to build. Mr. Karras: If they put that road through, what happens to the open space land across the road? Mr. Garnick: Nothing changes, It separates the open area but nothing else. We placed the road in a convenient spot. Mr. Karras: The permits were given for 750 units on that open area. Mr. Garnick: As a total package, yes. Mr. Karras: But this goes through that. Mr. Garnick: There is no conveyance over any lot. We are only getting an easement, nothing else. The ownership of the land still stays with Oak Harbor. Mr. Karras: Whose responsibility is it to put in the road? Mr. Garnick: Mr.Johnstone Fitzgerald. That is how it was set up. The ownership is Pet. #1937 Page 5 not being transferred. Mr. Newton: It is not the intent for Oak Harbor to close the old Hockanom Road? Mr. Sweeney: Absolutely not. Mr. Walls: My concern is the possibility of there ever being a connection from Bray Farm Road and Oak Harbor. Since there is excess open land, what is there to guarantee that they will not try to build a road over their land to do this? Mr. Henderson: I tried to address that before. I think it is right if they want to change the road system or anything, they would have to come back here for further permission to do so. You will be notified again. They can't just do that. Mr. Garnick: They can't. Mr. Henderson: The plans submitted before show the location of the roads and the proposed structures. Mr. Walls: Any additional roadway would have to come here again? Mr. Sweeney: That is right. We wish to honor this agreement. We did not originally make this agreement - we assumed it when we took title to the property. The developer of Oak Harbor will live up to this agreement. Oak Harbor has no intention of placing any other road in this development other than what is on the plan. Mr. Garnick: Economically, it is not feasible to do that. They have all the roads they need. Mr. Walls: There is only one road to this development, and that tells me they have a great deal of need to have more roads, I think they are in desparate need for more roads. Mr. Sweeney: We feel we do not need any more roads. People who purchase Oak Harbor condominiums won't want to see any more roads connected any where. Abutter: There was an article in the paper one time that the town planner thought there would be a need for more roads and suggested that and said if Oak Harbor didn't put one in, the town may have to. Mr. Sweeney: The road layout as exists, is appropriate for what exists or will exist. Mr. Bulby: I would also like to express concern to do the same thing, and in addition, since we live on the corner, additional traffic for this new subdivision - 35 houses - that is a lot of cars. We are opposed to that. Mr. Fitzgerald: I am the son. My father has paid taxes for 30 years on this property. He deserves some rights from this town. He doesn't intend to build 35 houses. He wants only access to his property. He doesn't have the moniky to build those houses. He wants that road in on principal. There will be no problem with traffic at all. He just wants to build a few houses, not 35. The people down there now were creating problems on Route bA at that time when their houses went in. They created more traffic, too. Mr. Henderson: Mr. Kennedy has a point here... Pet. #1937 Page 6 Mr. Kennedy: I think this discussion is becoming too broad. We have to make a find- ing as to whether or not the location and building of this proposed road will or will not diminish the open space requirement below the acceptable minimum. We have nothing to say how many houses will be built here or there. Our authority is what I just sta ted. The discussion should be limited to that. Mr. Henderson: I agree with him. We have. 5 other hearings to listen to after this. Mrs. Fitzgerald: As a taxpayer of the Town of Yarmouth, citizen of Mass. and an American citizen, we should not be denied decent access to property we have acquired over 30 years ago legally. Martha Smith: If the sole purpose is for the easment, why were we invited? Mr. Henderson: The statute says to whom the notices be sent to. Mrs. Smith: Then that means nothing. Mr. Henderson: The statute tells us what to do. Mr. Smith: I wish we hadn't wasted our time then. Abutter: How wide is the road? Mr. Garnick: 50' with the drainage. Citizen: I was talking with Mr. Garnick and he said they didn't know how many homes and they said only for the family. If that is so, why not just a smaller road? Mr. Garnick: We have agreed to a 50' right of way. What they decide to do with the property ultimatly,will be their decision. Mr. Sweeney: We have no interest in what Fitzgeralds do with the property. We would be delighted if he did build fewer than 35 homes. Mr. Garnick: We are here after 5 years of bickering back and forth. We are not here as the best of friends. There has been a serious adverse relationship between Oak Harbor and the Fitzgeralds. 3 different lawyers. We are making a joint presen- tation here, going back to 1975. The people don't talk to each other because this is the way it should be handled. They are not a front for Oak Harbor, nor is Oak Harbor a front for the Fitzgeralds. Mr. Smith: I have great difficulty accepting the fact we cannot talk of other aspects of this case. Mr. Henderson; I will ask the Board what they wish to do... Mr. Kennedy: I want these people to have their say, but if I think you are out of bounds, I am going to tell you that. We don't have anything to say how many houses he will build there. This man is entitled to access to his property. We are con- cerned with the diminishment of open space. Mr. Johnson: It would be my thoughts, unless someone has something new pertaining Het. #1938 Page 7 to the petition as printed,I would make a motion to take this under advisement. Mr. Murphy 2nded. Mr. Johnson: I think the motion pretty much says or speaks for itself. We are getting a little away from the petition as printed and from what is before us. Having sat here to 1:20 the other night and being a volunteer Board, I have personally enough information, unless someone has something new. Mr. George: There is something more I would like to know - this plan you submitted - dated 1981 - did you subdivide this lot into 36, 38, & 37? Mr. Garnick: Yes, This was all lot 22. Mr. George: So you created these lots. Mr. Garnick: In lot 38, we made the easement. Mr. George: You say easement instead of a fee. Mr. Garnick: That is right. If they gave a fee, they would break the open space. Mr. Sweeney: I dont think there is a requirement the open space be contiguous. In any case, we keep the fee in the road. Mr. Henderson: I will take a vote on the motion - All in favor. Hearing closed.