Above: The ZBA has closed the hearings on the development project proposed to be built where the white balloon was floated a few months ago. (photo by Beth Melo)
Last week, the Zoning Board of Appeals was forced to close the public hearing on the proposed 60 unit 40B project at 120 Turnpike Road. They are scheduled to deliberate on the decision in three weeks.
Before they vote, the board may opt to allow the public to comment and make recommendations on the 5 story apartment building that would abut Breakneck Hill Conservation Land — as long as they stick to previously submitted/discussed facts.
At the ZBA’s meeting last Wednesday, two residents pushed for extending the public hearing. But the representatives for Ferris Development refused to grant an extension and Town Counsel confirmed that the board was powerless without the applicant’s approval.
The ZBA is likely to vote to approve the project with specified conditions at their December 11th meeting. But, they will have time to schedule a follow up meeting to finalize language if needed. By law, they have until December 23rd to issue their written decision.
Town Counsel Jay Talerman said the risk from closing hearings at this stage is more to the developer than the board, but it does make the board’s job more difficult “because we’re making conditions around unknowns and unresolved issues”. Ferris’ Attorney, Louis Levine acknowledged the risk, following that they won’t be able to get a building permit without meeting whatever conditions the board decides to set.
Upon questioning, Talerman gave advice about the next step that surprised the ZBA Chair. The board can take comments and recommendations on the 11th, just not any “new facts”. The only example Talerman gave involved discussion between the board and the applicant on what conditions the developer might agree to. Talerman did note that boards usually choose not to take public comments. The ZBA didn’t discuss whether or how they would entertain public comments when they deliberate.
The biggest controversies around the project have stemmed from its proximity to the Breakneck Hill Conservation Land. The prior property owner had agreed to gift the Town an adjacent 6.2 parcel of undeveloped land to be added to the conservation land as a buffer. After Ferris purchased the property, the developer had planned to build on that land. Town Counsel claimed that the developer was obligated to give the land to the Town.
Ferris “compromised” and came up with a project that entailed moving the building and gifting the 6.2 acres.
Now, one of the groups that advocated for demanding the land is raising concerns about whether it should be accepted.
The project plans include creating a drainage swale on the parcel. According to Freddie Gillespie of the Open Space Preservation Commission, the developer will ruin 10% of the parcel by clearcutting it and not planting replacement trees. Ferris’ Asst. General Counsel, George Bahnan, confirmed that only grass would be planted on the specified slope.
Gillespie said the change would change the vista on Breakneck Hill to now look out at the 5 story building and Route 9. Gillespie told the ZBA that the developer should be forced to replace the trees with “massive amounts of trees and shrubs” of appropriate native species. But she was concerned that from what she was told, that may not be possible.
Gillespie repeatedly referred to the original intent that the donated parcel be “undisturbed natural open space”. Levine rebutted that the language in the permit condition requiring the donation of the 6.2 acres didn’t include that phrase. Talerman said it was complicated, but that it was the context in the hearing discussions that the condition came out of.
Gillespie also worried that accepting land with a swale on (to be maintained by the 120 Turnpike Road owners) will end up causing a liability for the Town.
She pointed to the costly water problems on Kallander Field caused by an uphill swale purportedly not being appropriately maintained on Carraige Hill.** (Later, Kristen Lavault, a member of the Recreation Commission who was involved in the expensive project to rehab the damaged field, said she shared Gillespie’s concerns.) And Gillespie worried that people walking dogs towards Breakneck Hill and kids coming/going from the land would walk on the swale.
Based on those concerns, Gillespie said that the Open Space Preservation Commission, which had advocated for the 6.2 acre parcel, now believed the swale area should be carved out and replaced with other land from the property. (Though, she couldn’t see what that would be.)
Without going into any specifics, Talerman later said that he wasn’t concerned about liabilities. He advised that the Town should follow through on taking the 6.2 acres as a condition.
At the November 13th meeting, Gillespie objected to the lack of notice for the public to go through the many documents that were submitted this month, including revised plans and waivers the day before the meeting and revised landscaping and lighting plans the same day. And Lavault said she just discovered that night’s meeting when checking the website for information on meetings for committees that she serves on. She believed there were many members of the public interested in the project that weren’t aware.*
But ZBA members defended that the department had created a dedicated web page to keep people informed of the hearings. And they also argued that the project had been discussed in hearings (available via video) for several months. During that time, they said the applicant had worked with them to make improvements, including moving the building, reducing it from 6 stories to 5, and agreeing to donate the land. And the Town is short of its “safe harbor” and needs to approve 40B projects.
The board told commenters, including Chairs of the Planning Board and Stewardship Committee, that they were listening carefully and would be taking the concerns into account when making the project conditions. They also discussed with their Peer Review consultants how to incorporate conditions to ensure that Conservation Commission concerns will be addressed.
One significant change to the project came out in last week’s discussion. It will no longer include a dog park and playground.
At the ZBA’s prior meeting, the board discussed the height of the 5 story building, taller than any that has been approved in the past. Some residents and officials have publicly worried about that opening the door for other tall projects. The board claimed that allowing the project doesn’t set a precedent. Some members would have liked to see fewer floors, but were willing to accept it.
The December 11th meeting will take place at 7:00 pm. The location has yet to be posted. For all of the project materials (and to check for updates) click here.
*Lavault stated dismay that the November 13th hearing wasn’t publicized on this blog. She is right that while I had included it in my weekly post on Town meetings and even highlighted that the ZBA was holding hearings in the subhead, I didn’t call out this specific project in the subhead. (I didn’t know that it would be the last hearing on the project. That’s hard to track since developers continually grant extensions along the way.)
I had previously highlighted the ZBA’s prior meeting on October 29th would focus on the 120 Turnpike Rd building height. That didn’t appear to result in public attention in the meeting.
Plus, as the ZBA noted, they have a dedicated website on the topic. What they didn’t mention is that they also promoted the opportunity for interested residents interested to sign up for the related flash briefings and to receive notice of all of the ZBA’s agendas.
Updated (11/20/24 7:30 am): I replaced the word “condo” with apartment in in the second line. The project is for rental units.
**Updated (11/21/24 8:53 pm): A comment objected to my describing that Carriage Hill purportedly didn’t properly maintain their swales. Looking back at the exact wording in the meeting, Gillespie hadn’t made that specific allegation. She more vaguely blamed the swales for the problems at Kallander Field despite there having been conditioned orders for their maintenance by Carriage Hill.
At the time that the Kallander Field project proposals were in front of Town Meetings, public claims were made about Carriage Hill’s purported failure to maintain the swale. But there were also rebuttals defending the proper maintenance by Carriage Hill and pointing to other issues. In a comment below, the Chair of the Carriage Hill Condominium Trust asserts that they have “consistently fulfilled all of its obligations regarding the maintenance of the draining ditches”.
The article reports an assertion by a member of the public that “costly water problems” at Kallander Field were “purportedly” caused by a failure of Carriage Hill to “appropriately maintain” an uphill swale. This assertion is completely false. Carriage Hill has consistently fulfilled all of its obligations regarding the maintenance of the draining ditches installed at the time that the Community was built. The drainage issues at the field, whether the result of an inadequate original design of the drainage system or otherwise, were not caused by any failure by Carriage Hill to do what it agreed to do.
Barry Rubenstein
Chair, Board of Trustees
Carriage Hill Condominium Trust
I should (and will) make an edit to the wording I used. At the time that the Kallander Field project proposals were in front of Town Meetings, public claims and rebuttals were made about Carriage Hill’s purported failure to maintain the swale. In the recent ZBA meeting, the situation was referred to more vaguely with the statement that the field was described as having been destroyed due to issues with the swale, despite conditions having been in place for maintenance.