TOWN OF LINCOLN
PLANNING BOARD MINUTES
May 10, 2006
PRESENT: K.Hurd (Chairman), E.Flint, B.Wolf, R.Domnitz, J.Snell
STAFF: M.Whitehead, C.Perry
7:30PM: BUSINESS:
Omnipoint, 30 Lewis Street
The Board signed the special permit for co-location of a wireless communication facility.
Administrative Amendment: KRIS ESTES/ STEPHEN BINDER, 36 Beaver Pond Road (Map 86/ Lot 2 and Map 73/ Lot 9). Request to move previously approved accessory building approximately fifteen feet from approved site plan location.
The site plan was approved in April, 2005 and subsequently an amendment to the design and use of the accessory building was approved. The applicants now stated that when the accessory building was marked out on the land, it seemed more appropriate to place it further from the house. The setback from the lot line would be the same. The building would be rotated slightly but its design would not be changed.
Mr. Whitehead provided a plan showing surrounding lots and houses. The applicants reported that they had spoken to several neighbors and they had not raised any objections. The Board checked on the status of some undersized lots shown on the plan; these were reported to have been merged into neighboring larger ones.
The applicants said that they may wish to add an extra light as a result of the changed layout. The Board considered that one more light of the type approved would be acceptable.
A MOTION was proposed by Mr. Domnitz and seconded by Mr. Flint, to approve the change to the position of the accessory building, with up to one more outdoor light, as an administrative amendment, subject to the provision of a revised ‘as built’ landscape plan prior to occupancy. Passed 5-0.
8:00PM: DISCUSSION WITH TOWN COUNSEL, JOEL BARD
The major areas for discussion were identified as: exempt uses under the Dover amendment; site plan reviews; and separation and merger of lots/ status of vacant lots.
Exempt uses
The Board mentioned that two recent proposals for exempt uses, the Corwin-Russell School and the Korean Church, had been withdrawn, but it would be useful to have advice in dealing with future cases.
Q: If a Dover-protected institutional use is proposed on a non-conforming lot in a residential area, and is not set back 75ft, can it be refused?
A: References are the Tufts case and Campbell v. Lynn. The question for the court is whether dimensional control is reasonably applied in the situation. It may be possible to distinguish on the basis of facts. In the Tufts case, Medford prevailed on parking and loading but not on setbacks. The court will look at the reasonableness of the dimensional requirement in relation to the proposed use in the proposed setting.
In the case of the Mormon church in Belmont, the trial court judge questioned the need for a high steeple in relation to the religion but this was overturned as not a matter for the courts to delve into, so it is not advisable to be too critical of the exempt user’s stated needs.
Q: How does the Board apply reasonable regulation in a case where a new building is proposed initially for residential use but may be intended to be changed to an exempt use?
A: There could possibly be an issue of fraudulent misrepresentation. Future intentions are not really a zoning matter but a record of statements might be useful in case of future litigation. In writing its decision, the Board could include a factual finding that the proposal met the setbacks for residential development but not for institutional development, and state in a condition that the approval does not allow change to institutional use.
Q: Can the Board ask questions of the applicant?
A: They are entitled to ask about land ownership and non-profit status.
Q: Could the Board ask an applicant to create a deed restriction similar to the mechanism used by the Board of Health to limit numbers of bedrooms for septic system regulation?
A: The BoH restriction is not strictly in the deed; it is attached so that subsequent purchasers receive notice, and it is not self-enforcing. Since the Planning Board’s site plan approvals are recorded at the Registry, a decision such as described above would also be part of the record for anyone who searched the title.
Q: Is a parsonage an exempt use?
A: It would depend on the facts.
Q: Does ‘corporations’ include LLCs?
A: Will check.
Q: We have a bylaw, that has been approved by the Attorney General, which requires greater setbacks for non-residential principal structures in the R-1 zone. Can we create other regulations for non-residential uses, for example a greater setback for uses needing a certain amount of parking?
A: Some towns’ zoning regulations have a table of uses (irrespective of whether exempt uses), and dimensions. They would apply unless challenged by an applicant who showed that they were not reasonably applied to them.
Q: The Town Planner has suggested a zoning change to require site plan review for changes to non-residential uses in the R-1 zone. Massachusetts Planners have circulated advice saying that site plan approval can be applied to Dover amendment uses. Any comments?
A: There are some who think it cannot be applied but most support it given that the power of site plan reviews is limited. The zoning change could list relevant issues, similarly to other sections. In Section 6.1 (g), referring to exempt uses, wording could be added to make it clear that these would be subject to the limitations of the General Laws. In terms of timing, submitting an application for site plan review does not protect an applicant from a zoning change (unlike a subdivision application).
Q: How should traffic be handled in Dover amendment cases?
A: It is not really a site plan review matter.
Q: Does Lincoln’s general bylaw governing curb cuts give a basis for considering traffic?
A: Up to a point. It may be a tool for optimizing the position of a curb cut but may not be grounds for refusal; the town would have to look at control measures such as lowering the speed limit first.
Q: Is it valid to refuse on the basis of pointing to better locations?
A: Not really. This was discussed in the Lynn case but only favored by the dissenters. Identifying better locations in a Master Plan may help to steer uses in future but not necessarily help in defending non-preferred sites.
Site plan reviews
Q: The zoning bylaw on site plans states that buildings should relate harmoniously to the neighborhood. Will that support a refusal?
A: There are no legal cases that support a denial and many that have reversed it. The conclusion is that the purpose of site plan review is not to refuse or severely restrict uses. However, denial might be upheld on sufficiently persuasive facts.
Q: what happens if an applicant does not wish to compromise?
A: Conditions are an option. However, they cannot constructively deny the use. In the Castle Hill v. Holyoke case, the proposal was for a multi-unit housing development, described as barrack-like. Conditions were imposed, substituting a multi-level access arrangement that effectively cut the size of the development in half. This was not upheld.
Q: Conditions can not always ensure good detailing. Is there any solution to this?
A: The Board could require submission of details to the Building Inspector.
Q: What is the appeal route?
A: The applicants could appeal a decision of the Building Inspector to the Zoning Board of Appeals, then appeal the ZBA’s upholding of the Planning Board’s conditions. There is no direct appeal of site plan review because it has no basis in the Zoning Act.
A judge is not obliged to give deference to the Board’s decision but the Board has discretion to impose reasonable conditions. In theory a site plan approval can be denied if no conditions could be devised to regulate the development impacts adequately, but there are no cases where a denial has been upheld.
Q: Could visual arguments ever support a denial?
A: It seems unlikely that visual issues could carry the weight for a denial. In the Castle Hill case, visual arguments were used and were not considered strong, but it may have been felt that the real aim was to reduce the size of the development. The visual arguments might have carried more weight if they had been better supported in the findings of the decision of the local board.
Separation and merging of lots/ status of vacant lots
Q: If there are two adjacent lots that are non-conforming and they come into the same ownership, can the Town require them to be merged?
A: Lincoln’s bylaw is more generous on this issue than State law, as it removes the separate ownership criterion for established non-conforming lots to be considered buildable. In this instance the State law allows towns to be more generous. The issue was considered on the Shea site three years ago (a letter to the Building Inspector was circulated).
Q: On the subject of protected non-conforming lots, how would a court interpret the term ‘without alteration’ in Section 4.5 of Lincoln’s zoning bylaw? There is some ambiguity as to whether it means that the lot has not been built on, or that the lot lines have not been changed.
A: A court would be likely to support a reasonable interpretation by the Town.
Bryce Wolf recalled that lots used to be considered protected even if built on, but that at some point this changed and now owners have to apply to the ZBA for changes to buildings on non-conforming lots. This was probably prompted by the Goldhirsh v. Mc Neir (?) case in which it was stated that non-conforming structures had to be submitted to a ZBA. A more recent case, Bransford v. Edgartown, suggests in footnotes that this is not necessarily so. Statute does not say who makes the determination as to whether a proposed change to a structure makes the lot more non-conforming.
Q: What rules apply if someone proposes to build on a non-conforming lot where a building has been demolished? It would be a vacant lot in the terms of Section 6.01 (b) of Lincoln’s zoning bylaw, rather than an undeveloped lot.
A: There is provision in the Zoning Act for reconstruction of a previous residential building within a certain time. After that, the lot could lose all buildable rights; it would be a ZBA decision.
Q: What is the meaning of ‘reconstruction’, and should the Board consider defining it? Sometimes the constraint of fitting in with it leads to poor design, for example a building closer to the road than would be desirable.
A: It would be risky to allow alternatives, as it could create legal undersized lots.
Neighborhood Conservation Districts
Q: How would a NCD impact a Dover amendment exempt use?
A: Lincoln’s proposed NCD bylaw is a general bylaw, not zoning, so the Dover amendment is irrelevant to it. A letter has been sent to the Attorney General by McDowell objecting to the bylaw on the grounds that it should be a zoning bylaw, but I disagree.
Q: What restrictions could be applied in a NCD?
A: It could not prevent institutional uses but could limit design. It cannot be used to achieve zoning objectives, so there is a need to be careful about controlling sizes. Dimensions, setbacks and parking requirements should not be included, but style could be addressed.
Zoning bylaws
Q: Are zoning bylaws ever overturned as irrational or unconstitutional?
A: Occasionally they are rejected by the Attorney General. In the Hadley case, the court rejected a phasing provision as not being based on any legitimate public objective, but this is widely considered to be a poor decision.
In some states, Master Plans and zoning have to be linked. This tends to prevent new zoning rules being created in response to specific development proposals. It needs to be borne in mind that Massachusetts ‘grandfathering’ provisions give generous protection from changes. It can be helpful to have plans in place to support zoning. Acton had the benefit of a Master Plan when it rezoned some land from commercial to residential. Conversely, in Boston, an attempt at rezoning was rejected as being inconsistent with a series of plans.
Mr. Whitehead commented that the proposed Land Use Reform Act will link zoning to Master plans in Massachusetts but it is being opposed by developers as they want to retain the ‘grandfathering’ rules that would be eliminated. Changes to the Dover amendment have been removed from the Bill to try to ease its passage but there is still uncertainty.
The Board thanked Mr. Bard for a useful discussion.
OTHER BUSINESS:
Town Planner’s Report:
Crowley, Silver Hill Road
Mr. Whitehead reported that Mr. Crowley inquired about the procedure for requesting an amendment to the road design for the cluster subdivision. He circulated a copy of his reply.
Cadogan, 185 Weston Road
The Board signed the decision on the administrative amendment.
Morrissey site
Mr. Whitehead said that David Segal, a neighbor, had reported that Mr. Morrissey had been cutting trees near the cell tower on his property. He will ask the Conservation Officer to check the facts.
Old Town Hall, Lincoln Road
Ken Hurd reported on an issue from the Historic District Commission concerning a proposal to change the paving in front of the Old Town Hall. The proposal is to create a raised island to control traffic movements, and to remove the slightly raised brick area in front of the building, mark parking spaces and extend the granite step to run the full width of the building. Some people have expressed concern about the cars being able to park very close to the building, in terms of pedestrian access and safety, and potential damage to the building. The Board considered that these were valid concerns, and also pointed out that painting lines could trigger a need to allocate spaces for handicapped users. They supported writing a letter on the matter.
Post Office/ Mall Renewal – Rural Land Foundation
It was reported that RLF has decided to submit its proposal through the South Lincoln Planned Development District process rather than seek a variance from the Zoning Board of Appeals. RLF has dropped the housing element that was proposed as a second phase, but is eager to make progress in meeting the Post Office’s request for larger and better premises.
Minutes
Deferred.
The meeting was adjourned at 11:10pm.
Submitted by Catherine Perry
Approved as amended August 9, 2006
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