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MINUTES - Joint Public Hearing with Planning Board - 6/18/2007 186 CITY OF SALEM JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD A joint Public Hearing of the City Council and the Planning Board was held in the Council Chamber on Monday, June 18, 2007 at 7.00 P.M. for the purpose of discussing proposed Zoning and map amendment for certain parcels located on Clark Avenue from Industrial to R-1. Notice of this meeting was posted on June 15, 2007 at 11.52 A.M. and advertised in the Salem News by the City Clerk on May 29 & June 5, 2007. Councillors Furey, O'Leary, O'Keefe, Lovely and Corchado were recorded as absent. The City Planner Lynn Duncan and the following members of the Planning Board Gene Collins, Pamela J. Lombardini, John Moustakis, Walter Power III, Charles M. Puleo were recorded as present. Council President Matthew Veno presided. APPEARING IN FAVOR: Attorney Keilty who was representing Chapel Hill LLC — Barbara Driscoll, gave a presentation as to how this zoning has come about. Ms. Driscoll went before the Planning Board and found out her property was mostly in the Industrial Zone and also a development of several houses also were partially zoned in the industrial zone. Councillor Jean Pelletier— read a communication from the City Solicitor Elizabeth Rennard. The following questions were asked: 1. can an industrial use be used 2. are existing homes non-conforming 3. can city council change zones of the houses affected 4. Anything to gain Five of the affected property owners are in the chamber. Mr. Davis 22 Clark Avenue owns one of the homes affected and just found out about it. He stated he doesn't care what Chapel Hill is doing just wants the neighborhood to be fixed. (Lot 06-0004). CITY OF SALEM 187 JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD Mr. Robert Bozarjian 20 Clark Avenue stated his house is affected. This has caused much controversy. He and his neighbors are concerned about the neighborhood. They went through proper channels to build their houses. He has concerns about the new development. (Lot 06-0010) Wiro Surya 25 Clark Avenue stated the same concerns and wanted to correct the error on the residential properties. (Lot 06-0015). Resident of 5 Wyman Drive — concerned that people bought house on Clark Avenue in good faith. Now if there's a development it will increase traffic. If they want to build let them build 11 houses. Councillor Sargent asked the City Solicitor Rennard doesn't that land connect to industrial zone and swamp. Wouldn't they have to come in through the industrial zone? Mr. Colpits 18 Clark Avenue — gave a petition from the neighborhood to Council president Veno stating their opposition to the project. The present house should be R-1 that's what they are. The zoning issue created by Planning Swampscott Road Map 6 & 11 the blue area exceeds current zoning. It goes through the middle of Driscoll property and there are wet lands on both sides left and right. The developer's plans show where the buffer is. There's not much for open space. A Cluster development is out of character for Clark Avenue and Clark Street. It adds a negative impact to the neighborhood. The brooks in the area back up onto Highland Avenue during high rains. Knowing conservation issues most of it is unusable. I suggest it should be zoned RC to protect the area. Councillor Pelletier— stated that's not before us, we are changing properties from Industrial to Residential 1 (R-1). Mr. Colpits — stated that he is in opposition to more subdivisions by Chapel Hill. Resident of 6 Clark St. requested that Mr. Colpits be listened to. Councillor Veno — stated the only thing that is before this Council today is the Zoning for the Industrial Zone to R-1. The subdivision is before the Planning Board. 188 CITY OF SALEM JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD Resident 6 Clark St. — stated the homes are separate from the proposed Chapel Properties. Councillor Pelletier— stated it is the Council's purview to separate the residents from Chapel land. Councillor Sargent — stated if it's not separated we should have Mr. Colpits back. Lynn Duncan, City Planner— the Council could will vote and could vote to approve all parcels, or deny all, or approve for just the 6 house lots and deny the other 2 lots. Councillor Veno — asked can Council vote in favor of the 6 parcels? Ms. Duncan stated that the Council could table the whole thing. After taking action you could not take them up at a later date. Councillor Pelletier stated are you talking about leaving out two properties and that they can't come back for two years? Ellen — resident Clark Avenue — is in agreement if we are looking to approve the petition including the other two parcels that gives the developer the a green light. Attorney Kielty — stated we went on the assumption it was all residential area, we spent money and received preliminary approval. Now when the mistake was discovered we come forward to correct it. Robert Rich — 6 clark St. — question regarding access road. If they are zoned residential where would the access road be? He asked How would it affect the area? Attorney Kielty stated the map depicts the current. The cluster development would have had north and south access. Lynn Duncan — Planner— stated that we have a copy of plans from the Planning Board subdivision plan. There are 37 house lots proposed. CITY OF SALEM 189 JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD Resident — 6 Clark St. — asked would traffic dump out onto Jennifer Avenue and Clark Street. Clark Street is currently in need of repair. There are major issues with drainage and to put more traffic on an over burdened road is not a good situation. Councillor Pelletier stated that Clark Street is going to be paved in September. Councillor Sargent stated that there are two different maps. He asked how many properties? Attorney Kielty stated twenty-six (26) to thirty-eight (38). Councillor Sargent stated twenty-six buildable lots, where does it go to thirty-eight? A cluster is buildable lots. You still have twenty-six, 15,000 square foot lots. George Bellows — Developer— stated this was a two cluster subdivision, now that it's a problem we put 15,000 square foot lots there's twenty-six under the new plan became R-1 the plan was redesigned to 216 lots, if it can't use industrial 37 lots if all became R-1. Councillor Sargent asked does that take into account wetlands? I was understanding only 19 lots. Mr. Bellows — stated we originally wanted 37 lots. Councillor Sosnowski stated that Kathy Leahy did a presentation on cluster developments and find no relation to this. Robert Bozarjian — 20 Clark Avenue — stated that he would like to remind everyone that all controversy is on possible development not the current homes. Peter DeLuca — 10 Clark Avenue — asked who owns this land? Mr. Colpits — stated it's owned by Wyman Road it abutts Wyman Avenue. City is planning on sewer on Wyman Avenue which limits development. Once sewer is resolved the developer will be interested in the land owned by for future family members. Pat Elmquist owner— is holding for family and for the future. 190 CITY OF SALEM JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD The planners at the time knew it was undevelopable, it's wetlands. It should stay industrial for future development of Salem. The 5 or 6 houses should be made R-1. If you rezone the Industrial area you are limiting future of industry in Salem. Most of this land is wet lands or buffer zone. These are separate issues. Sandra Tran — 21 Clark Avenue (Lot #06-0019) the road for the new development is too close to my property, Mr. Colpits represents me and the neighborhood. Our lots have to be 15,000 square feet. I was told this was conservation land. Mr. Powers — Planning Board Member— the major issue is with industrial lots. If we rezone this whole area to Swampscott Road is open to save industrial zone. Mr. Puleo — Planning Board Member— stated he has looked at this plan twice, we really don't know where this is coming out. Access areas are in question. We were hoping the developer would come in with a better plan or overview map. Councillor Pelletier stated to Mr. Puleo and the Planning Board that he tried to G.I.S. to get a good map from GIS. Mr. Puleo stated they've had ample time. Councillor Pelletier asked can we not zone the two parcels? Lynn Duncan stated that if zoning doesn't go through they would come back with another plan. The peer review started, but put on hold due to questions. Councillor Pelletier asked if the developer doesn't get those two parcels they will go back to Planning with revised plan. Is that correct? Lynn Duncan stated the developer has paid for a peer review. Councillor Prevey asked the City Planner Ms. Duncan if the 6 parcels are not rezoned are the owners restricted? Lynn Duncan responded that she would defer the question to the City Solicitor. CITY OF SALEM 191 JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD Solicitor Rennard stated they were developed prior, it is in the best interest to have it rezoned for the 6 parcels. Councillor Sargent stated that if the petition is turned down they can't apply for two years. The owners have not come in. Can they come in if this petition doesn't pass? Lynn Duncan — stated there's no reason not to rezone the 6 parcels. The attorney came in with 8 parcels not just his 2, he took advantage to rezone the 6 homes. Councillor Sargent stated he doesn't want there to be a challenge if we rezone 6 and not the 8 parcels. Solicitor Rennard stated it is more of a disadvantage not to rezone the 6 parcels in the possibility that the developer appeals. Robert Ridge — 6 Clark Street— asked the Solicitor in the appeal process the residents could get caught up in appeals, can they put in their own petition? Solicitor Rennard stated that she would like to do more research. Ms. Duncan stated that in Wilmington we did numerous rezoning and never saw an appeal if a developer was turned down in 13 years. Solicitor Rennard stated to file an appeal in land court has to be done within 30 days. Ms. Ducan stated there have been appeals on zoning more for the reason of was it advertised. Councillor Sargent asked if it was illegal for someone to bring in a petition on land they don't own? Mr. Colpits responded you have to have a legal interest, the developer has a contract with the owner. 192 CITY OF SALEM JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD The six owners have a right to petition. They shouldn't be linked to the developer with a lawsuit. There should be a way to separate out the six owners of the parcels. Councillor Blair asked do these people have a right to withdraw? Ms. Duncan stated you can table the matter and take no action, and then the six owners of the other parcels could come back. Peter Deluca — 10 Clark Avenue — asked how did the land become R-1 from industrial zone. How did this happen in the first place? Solicitor Rennard stated there was an error back in the 1980's by the Zoning Officer. Map was not checked before the building permits were issued. Peter Deluca — 10 Clark Avenue — stated Mr. Colpits was the original petitioner to develop the land. Mr. Colpits — stated that this is a misuse of the land density. Don't believe the plan of the developer. He's holding these six owners hostage to get what he wants. You need a separate petition for the six home owners. George Bellows — responded we are not holding anyone hostage. They have bigger problems, we paid the legal bills and did this because it's the right thing to do. We are not trying to take advantage. Clark Street resident— stated there are a lot of problems with water and sewer, who will pay to improve this? Mr. Bellows — stated he will sit down with the City Engineer regarding road improvements and pumping station and donate money for pumping station. Robert Bozarjian - 20 Clark Avenue — asked is there a way that I can work with other home owners to get it rezoned? Solicitor Rennard — stated it's doable. Councillor Pelletier— asked do we need to have another petition? Lynn Duncan City Planner— stated Council can vote to rezone these 6 parcels and not the others. I suggest that the hearing be closed and refer the matter to the Planning Board. CITY OF SALEM 193 JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD Councillor Pelletier stated Mr. Bellows had to include these lots. He moved to approve the motion to refer the matter back to the Planning Board. He stated that the Solicitor researched all day and don't make the owners come back. Mr. Puleo — member planning Board — commented that when this originally came to the Planning Board the parcels were missed by the Building Inspector. Mr. Colpits stated that from 1988 — 1995 there were two separate developments. Councillor Pelleter stated years ago we didn't have G.I.S. Mr. Colpits stated the first time it was 8 lots the second time it was for 5-6 lots. He said the banks missed this as well. Councillor Pelletier asked for relief for the 6 parcels. Councillor Veno asked for clarification of the process. Lynn Duncan — Planner— stated you need to close the public hearing or recess it. Then send to the Planning Board for their recommendation and they must make their recommendation within 21 days. Councillor Sosnowski moved to close the public hearing without a recommendation. Mr. Moustakis Planning Board member— stated it's no longer a public hearing once it's been closed. Councillor Sargent stated but people will be able to speak at the Planning Board. Lynn Duncan stated no this is the public hearing. Councillor Pelletier asked if the affected parties want it to be kept open or not. Mr. Colpits stated this is our public chance. Once it is closed you won't be heard. Councillor Veno stated it is not a closed session. 194 CITY OF SALEM JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD Mr. Colpits stated you can secure the 6 house lots and letting go on sub- division. Pamela Lombardini Planning Board Member — stated the vote will be taken by the Planning Board and they have 21 days to make a recommendation to the City Council. Councillor Pelletier— told Mr. Tran that he was sorry he missed him and would sit with to clarify things. Mr. Moustakis Planning Board Member— stated there will not be any input from the public at the planning board meeting. Mr. Kielty- filling in for his brother stated that he thought they were giving the neighbors relief. There were no secret deals. He suggested to keep the meeting open and let Attorney Jack Kielty give is expertise on things. Robert Bozarjian — stated the controversy is about the development not the 6 houses. The 6 should be rezoned, it should be passed tonight. Councillor Veno stated by law it has to be referred to the planning board. Rick Davis stated he appreciated the petition that was submitted but wants the houses to be rezoned. Mr. Colpits stated he appreciated Attorney Kielty expertise but that we have an updated Council and don't need to wait for Attorney Kielty. Solicitor Rennard stated there are time constraints the Council has 90 days to act. Councillor Pelletier stated that 5 out of the 6 home owners are in favor one does not have enough information. Mr. Colpits stated they didn't know they had a problem before now. On the motion by Councillor Sosnowski to close the public hearing. It was so voted. CITY OF SALEM 195 JUNE 18, 2007 JOINT PUBLIC HEARING OF THE CITY COUNCIL AND PLANNING BOARD Councillor Sargent asked if Attorney Kielty told the 6 property owners before or after the petition was submitted? Councillor Pelletier stated that they were not notified before hand. Councillor Pelletier moved to refer the matter to the Planning Board for their recommendation. It was so voted. On the motion of Councillor Pelletier the meeting was adjourned at 9.10 P.M. ATTEST: CHERYL A. LAPOINTE CITY CLERK