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Home My WebLink About2012-06-12 Planning Board Supplemental Materials (41) Enright, Jean From: John L Simons <JSimons @jhancock.com> Sent: Monday, June 11, 2012 11:18 PM To: Tymon, Judy Subject: Fw: Article 38 -- Proposed Zoning Change to Allow Drive-Thru Restaurants Attachments: GIS Locus With Distances (STM) (00020277).PDF; NAZB CDD ZONING BYLAW (SECTION 17) (00047952).PDF; 2012 Amendment Final (00047949-2).DOC; Compare Original to Amendment (2) (00047953).DOC; Assessors Map (STM) (00020276).PDF Judy, FYI - I am not happy about this form a procedural perspective; and the way they implemented this is inconsistent by district. But, if the moderator ends up allowing this, I want to be best prepared for this. What do you think? John Simons Director, Market Data Management (617) 572-5908 jsimons @jhancock.com -----Forwarded by John L Simons/JHancock/Manulife on 06/11/2012 11:16 PM----- From: John Smolak<JSmolak @smolakvaughan.com> I"o: 'John Simons'<johnlsimons @gmail.com>,'John L Simons'<JSimons @jhancock.com> ::)ate: 06/10/2012 01:18 PM S ulNect; Article 38--Proposed Zoning Change to Allow Drive-Thru Restaurants Hi John: Thank you for taking the time to discuss proposed amendments to Article 38 this morning. As a follow-up to the Board's June 5 hearing and our discussion today, Al McGregor and his son-in-law, Joseph Pelich, had proposed a text amendment to Article 38 which would extend drive-up restaurant use to Mr. McGregor's property located in the CDD2 District roughly across the street from Mr. Hajjar's, Mr. Pancorbo's and Mr. Kmiec's (Countryside Real Estate) property. As you recall, Mr. McGregor's property was re-zoned in 2010 to provide for a drive-up bank use on his parcel, which as you know, includes an upland area located adjacent to Route 114, but is surrounded by wetlands to the rear and side of his property, providing a significant buffer between any commercial use on the McGregor property and any residential use within the CDD2 District. I understand the Board of Selectmen is the sponsor of the subject warrant article, and that I understand from Mr. pelich that the Board of Selectmen is in support of the proposed McGregor amendment. As we discussed, you had raised both substantive and procedural matters related to this McGregor proposal. As to the substantive matters, you expressed the need to ensure that with regard to the McGregor parcel: (1) there would be no way for a drive-up restaurant to be located in close proximity to a residential structure; (2) there would be a need to determine that such proposed use would be compatible with the area and would be of a design which is consistent with the preferred design standards for the CDD District. 1 As to these matters, I am attaching copies of the following: (1) Plan including all the assessors parcels within the CDD2 District shaded, with the McGregor Parcels cross-hatched therein; (2) GIS Map depicting the approximate distances of residential uses to the McGregor Property; (3) the current Corridor Development District Zoning Bylaw; (4) proposed text of Article 38 (as proposed to be amended) ; and, (5) a compare version of the original warrant article as proposed to be amended by Mr. McGregor. Both of the slides above were presented at the 2010 Special Town Meeting at which Town Meeting voted to approve the zoning amendment for a bank drive-through in the CDD2 District. In connection with these plans, you will note: 1. The nearest residential structure is located approximately 440 feet from the proposed building envelope, thereby situating any drive-up restaurant use well away from any residences, and in fact, would be situated a greater distance away from residences than Mr. Hajjar's currently proposed article. We can propose the distance to be 250 feet (to be uniform with the Hajjar article) , or we are comfortable with going to 400 feet as suggested in the attached draft; 2. Section 16.6 of the Zoning Bylaw (CDD Design Standards) already set out design and other standards which Mr. Hajjar had promised to comply with under his proposal, and Mr. McGregor would also agree to do the same, and both proposals would be subject to other performance standards established under the CDD District requirements of the Zoning Bylaw, including landscaping, lighting and hours of operation and be subject ti a site plan review special permit. Mr. Pelich had a site plan depicting his proposed uses at the last Board meeting, and he can be present with the plan at the June 12 Planning Board meeting. With these undertakings, we feel that from a substantive standpoint, the use is one which would achieve the objectives of the CDD (minimize curb cuts, combine parcels, consistent design, etc. ) while at the same time protecting against deleterious impacts to the surrounding neighborhood. As to the procedural matters, we understand your concern over the lateness with which these amendments were proposed. In fact, I understand that Mr. Hajjar's proposal was not submitted before the closing of the warrant, but instead, the Selectmen voted to reopen the warrant because of their desire to encourage economic growth in this particular area of Route 114 in a manner which would not be disruptive to the neighborhood. Moreover, the proposed zoning amendment deals with property located within close proximity to, and in fact, is across the street from the Hajjar/Pancorbo parcels. I have also had occasion to examine caselaw concerning these procedural matters and suggest the following: * While we understand the Planning Board's obligations for making recommendations and reports on zoning articles at Town Meeting, I respectfully note that it is the statutory duty of the Town Moderator to make the determination of whether a warrant article amendment is within the scope of the proposed article under Section 15 of M.G.L. c. 39. In fact, Massachusetts caselaw indicates that the range of matters considered within the scope of Town Meeting article amendment is quite broad. * For example, a zoning bylaw amendment was upheld even though Town Meeting including a different section of the approved zoning bylaw. Donald M. Johnson v. Town of Framingham & others, 354 Mass. 750; (1968) . * Additionally, in Doliner v. Town Clerk of Millis, 343 Mass. 10 (1961) , the court found that "the object of the public hearing is to give the planning board an opportunity to consider the proposal and to suggest amendments thereto, it is clear that the zoning amendment as finally acted upon by the town meeting or city council may vary from the text presented to the public hearing held by the planning board. In the Doliner case, cited above, the planning board recommended to the town meeting thirteen changes from the proposal as originally presented to it. These changes affected about 339 acres of the town's total of 7,788 acres. * Moreover, in the case of Town of Burlington v. Herbert O. Dunn & another, 318 Mass. 216 (1945) , the court upheld a zoning bylaw valid where after a public hearing on the proposed zoning bylaw warrant article, the planning board acted to amend 2 the original article and submitted a recommendation to town meeting. The court held that "there is nothing in the statute requiring another hearing whenever, after one hearing, the board decides to amend what had previously been proposed." In Dunn, the court upheld a zoning bylaw amendment as valid when, before the town meeting, however, the planning board held two more meetings of which no public notice was given and as a result of which the board decided to change the map inserted in the warrant by zoning for business purposes five additional small parcels of land in scattered locations." 1. In sum, the actions of the Planning Board to make a recommendation to amend a zoning article at a meeting following the close of the hearing on that article has been upheld under Massachusetts caselaw, so the Planning Board has the legal authority to make those recommendations. However, since it is the Board of Selectmen which is sponsoring the warrant article, then the Board's role is simply to make a recommendation on the substance of the article and the Planning Board obviously does not have control over what is ultimately voted on at Town Meeting. 2. In fact, the Attorney General's Office is charged with reviewing approved Town Meeting warrant articles so she will act as the screening mechanism and will reject an amendment if it's felt that the amendment is a fundamental change in scope. 3. Lastly, the courts are loath to overturn the decision of a legislative body (Town Meeting) , so any party challenging an amendment will have a heavy burden to overcome the presumption in favor of the validity of an amendment. We look forward to discussing these matters at the Board's June 12 meeting at 6:30 pm. In the interim, I can be reached at 978-973-9640 if you have any questions. Regards, John STATEMENT OF CONFIDENTIALITY The information contained in this email message and any attachments may be confidential and legally privileged and is intended for the use of the addressee(s) only. If you are not an intended recipient, please: (1) notify me immediately by replying to this message; (2) do not use, disseminate, distribute or reproduce any part of the message or any attachment; and (3) destroy all copies of this message and any attachments. IcaeC 110l0 dho IVlascachusclla Scarclary of Talc e offiac has dcicrr°r7iiicd dhal i,rios ciriaile to acrd froi,ri r°riuirlclpal office acrd officials arc public rccoris 1'or irIorc iiifoi,i,rialloii luloaso rcfe,r Co °if°Ipl/www soc so alc,rr7a,us/lure,/Icre,ldx 1°h,�1, Icaoa coiisldar dho cirvlroirir1011�Iccfora Icr111E11rq dhio 01'r7011, 3