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Friday, November 21, 2014

Proposed Walgreens on Storey Avenue - ZBA Meeting Minutes

2014 052
Address: 29-35 Storey Avenue

Appeal
The Trust seeks to annul Condition #1 in the decision of the Planning Director dated 7/9/14,
which conditionally approved the Trust’s application dated 6/9/14 seeking to modify the site
plan approval previously granted to the Trust on 7/8/07. The Trust also seeks an order vacating
the corresponding decision of the building inspector dated 7/16/14 denying the Trust’s
application for a building permit dated 7/11/14. ZBA Minutes 10‐28‐14

This application was continued from the September 26, 2014 meeting. Attorney Lisa Mead of
Blatman, Bobrowski & Mead, 30 Green Street presented on behalf of Richard and David Kaplan,
Trustees of Plaza Realty Development. Her colleague Martin Fantozzi of Goulston & Storrs,
Boston, MA was also present.

At the last meeting, the board requested that counsel provide an opinion on the board’s authority
to act on the application two weeks in advance. The opinion was received Thursday afternoon.
Documents requested from the planning director and Mayor led to concerns. Ms. Mead
suggested the board was misled at the last meeting. The city solicitor not present at the meeting
due to a last minute conflict. Ms. Mead informed the board the that the planning director, Andy
Port knew one month prior to the meeting that the city solicitor could not make it and was
reminded two weeks prior. Mr. Port never notified the board or applicants.
Ms. Mead provided the board with new materials to read through and asked that they take a few
moments to review.

Mr. Fantozzi explained that this is an appeal of the planning director’s rights. The members of
the ZBA must act as a quasi-judicial body and are held as a judge in a case tonight.
A main concern was that the board was mislead at the last meeting in that the planning director
was aware of the city solicitor not being able to make the 9/26 meeting. A public records request
was sent to the City. After reviewing, Mr. Fantozzi claimed that emails and conversations took
place between various parties that were not appropriate. They suggested Chair Ramsdell recuse
himself from the hearing.

Ms. Mead clarified the modifications proposed. This project proposed four de minimis changes
to the 2007 site plan approval;
-The size of the structure. An area of 13,580 square feet is currently proposed. In the 2007
proposal, an area of 13,440 square feet was proposed. This is only a 1% increase.
-The building was shifted 20 feet to the East
-The drive through was moved to the rear of the building, taking it out of view from Storey
Avenue
-MA DOT approval modified the access and egress

Ms. Mead noted that the applicants incorporated suggestions from the planning board after a
private meeting where they were not allowed to participate. Some of the suggestions included
removing an ATM, adding more landscaping, more pedestrian access marking, more screening
and moving the compactor area.

Ms. Mead again cited Holyoke and Tewksbury cases from the last meeting. The bottom line is
that the planning director wants the building to be different.

Chair Ramsdell opened the hearing to public comment.

In Favor:
None

In Opposition:
Jim McCarthy, Chairman, Newburyport Planning Board
Mr. McCarthy brought up that these changes to the site plan might be de minimis to an attorney,
but to site plan review, these plans are very different. He strongly supported Mr. Port’s decision.
Administering site plan review is difficult and the board has a difficult task in front of them
tonight.

Mayor Donna Holaday
Mayor Holaday appeared not in opposition or in support. She made mention that some time has
passed since initial approvals. She encouraged developers to meet with her since and after one
such meeting the applicants became irate. Three weeks later they barged into her office
screaming and threatening to the point where she was concerned for her safety and a third party
had to step in.

Patricia Cantor of Kopelman and Paige, City Solicitor.
Ms. Cantor confirmed that she advised the planning director in early phases. She now appeared
before the board to assist – this is common practice and not inappropriate as the applicant’s
attorney suggested. She brought up the quasi-judicial body terminology and suggested that the
board listen to evidence and come to independent conclusions.

Questions from the Board regarding Public Hearing #2:

Ciampitti brought up the notion of de novo.

Ms. Cantor remarked that the 2004 subdivision approval controls the scope of the planning
director, site plan review and this boards review. The 2007 site plan is moot, unless they went
back and used that approval. It is no longer relevant because it was not built and they have come
in with different plans.

Mr. Ramsdell asked for clarification on whether plans presented were the most up to date.
All plans are current, but did not depict the MA DOT change. Mr. Ramsdell also asked whether
these plans were different to the ones that had been presented to Mr. Port as part of the
application that he had ruled on. Ms. Mead confirmed that the current plans were different and
not those presented to Mr. Port.

Mr. Pennington asked Mr. McCarthy what the normal practice of the planning board would be
with this degree of change. Mr. McCarthy brought up the term de minimis being used – a legal
term. Minor and major are terms the planning board would use. De minimis to them is from the
public eye and what they would think. He would say that the public would say that the project is
completely different.

Mr. Pennington asked for clarification on elevations proposed in 2007 vs. 2014.
Mr. Ciampitti questioned whether what they need to consider is if it’s minor modifications? And
how do they judge that as a ZBA? Is there a standard? There are four specific departures from
the 2007 approval as presented by Ms. Mead.

Ms. Cantor cited section 15C in the Ordinance, which distinguishes between major and minor.
She believes this is major. The appellant argues the building is only 1% larger building, but the
ordinance specifies from current conditions, not from approved plans. The 2004 approval said
going forward that the new version of the ordinance would apply. It said not to apply
dimensional or use requirements except for section 15. Section 15 triggers the major/minor
change.

Ms. Mead commented that we have lost site of the big picture. The appeal is that the planning
director is imposing arbitrary decisions/conditions. Mr. Port did not want to approve this site
plan.

Mr. Port defended the process and his actions.

Deliberations:

Mr. Ciampitti suggested that this would be better placed in front of a real court. He was
struggling with the language in the approvals.

Mr. Ramsdell commented that what they are looking at is complex. He brought up the suggestion
of referring the appeal back to the planning director and applicant to work out.

Mr. Pennington found foothold in that the 2004 conditions govern, but the 2007 plans have
changed. Mr. Port followed procedure as he saw fit. He did not understand why adhering to
conditions was so onerous. The board have not been presented with why this is a big deal. If
stepping in de novo, they need to know that.

Mr. Ciampitti agreed with the analysis. De novo – imagine doing this from beginning. Is it
forward moving of the board to ask questions of why the conditions are a big deal?

Mr. Ramsdell questioned whether chewing through this de novo was preferable to putting the
appellant back with the planning director to work out.

Mr. Goulet agreed with Mr. Ramsdell’s position. They ought to give professionals the
opportunity to make headway.

Ms. Mead commented that the applicant would rather have a denial than turn those wheels again.

Mr. Fantozzi spoke of the dysfunctional relationship that exists.
The attorneys point moved Mr. Ciampitti. He felt the board owed them a decision.
Motion to approve appeal application 2014-052 to annul Condition #1 in the decision of the
Planning Director dated 7/9/14, which conditionally approved the Trust’s application dated
6/9/14 seeking to modify the site plan approval previously granted to the Trust on 7/8/07.
The Trust also seeks an order vacating the corresponding decision of the building inspector
dated 7/16/14 denying the Trust’s application for a building permit dated 7/11/14 - made by
Mr. Ciampitti, seconded by Mr. Pennington.

The motion failed.
Votes Cast:
Ed Ramsdell– no
Robert Ciampitti – no
Duncan LaBay – no
Jamie Pennington – no
Howard Snyder– absent
Richard Goulet – no
Libby McGee – absent

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