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HomeMy WebLinkAboutPublic Comment from J Temple Response to Applicant Letter 2-6-26Response to Singer Letter of 2/6/26 to ZBA By Jeff Temple 67 Brezner Lane, Centerville comments in « red » Andrew L. Singer Marian S. Rose Myer R. Singer (1938-2020) Law Office of Singer & Singer, LLC 26 Upper County Road P. 0. Box 67 Dennisport, Massachusetts 02639 Tel: (508) 398-2221 Fax: (508) 398-1568 www.singer-law.com EMAIL MEMORANDUM To: From: Date Re: Barnstable Board of Appeals Andrew Singer, Attorney February 6, 2026 Great Marsh Development LLC Comprehensive Permit No. 2025-025 This Memorandum is a supplemental submission in response to questions and comments received at the first session with the Board on the above housing proposal. The Applicant's goal within is to clarify and answer as many questions as possible at this time to assist the hearing process as it moves forward. We anticipate that there will be additional questions and requests for consideration after our next session with the Board. Below is a discussion of the following topics (which aggregates questions raised by both Board members and comments from the public): 1) Environmental (wastewater and stormwater); 2) Transportation (vehicular and pedestrian); 3) Site Design and Screening; 4) Comprehensive Permit Law; and 5) Miscellaneous. Discussion Environmental (Wastewater and Stormwater) The Property is located in the RPOD Zoning Overlay District as well as a Saltwater Estuary Overlay District. The development will reduce the amount of nitrogen being discharged into the ground, compared to both existing conditions and that which could be generated with a traditional, non-affordable subdivision, and will result in a net benefit to the environment in a nitrogen sensitive area. Specifically, at present there are seven (7) existing bedrooms on four lots. These are each serviced by a respective Title V septic system. The combined nitrogen load is 3.11 ppm. With the proposal (56 units) being located on Town sewer, the combined nitrogen load will be reduced to 1.61 ppm, reflecting a 50% reduction over existing conditions. When the Town negotiated with the Applicant for an easement to locate piping for the new Town sewer station adjacent to the Property on the Applicant's land, the effluent from the Centerville Cove http://www.singe 2 development was factored into the calculations. Adding the new subdivision into the sewer will thus not delay or block any other properties from being attached to the sewer in the ordinary course. In addition, the Town installed a sewer stub onto the Property as part of the sewer extension. The Applicant will be responsible for installing the sewer infrastructure, both cost and construction, in the new subdivision, not the Town. A betterment assessment and sewer connection permit will each be applicable to the twenty-one proposed lots in the new subdivision. Because of the foregoing, future sewer connections of surrounding residential neighborhoods to the Property will not be delayed or negatively impacted as a result of the development. In response to a question about the Commonwealth Builder Program, which the Applicants hopes will be the subsidy program for the development, the Town's installation of the sewer stub will serve as the Town's required contribution towards the project. Stormwater management (SWM) will be provided for the development following both MassDEP Stormwater Management Policy and the Barnstable SWM requirements. The SWM design will be fully reviewed by the Barnstable DPW (BDPW), and the Applicant will address any comments they have. The waiver request from the BDPW SWM Permit is only for a waiver from the "papering" process of the permit. The process of the permit creates additional costs, and the Applicant is attempting to keep costs down which ultimately benefits the costs of the units. - If not formalizing the design work and DPW concerns, comments and requirements through conditions in permitting, then how is DPW/Stormwater Plan oversight binding? Transportation (Vehicular and Pedestrian) The Traffic Impact and Analysis Study (TIAS) prepared by VHB studied six different intersections and collected peak hour data during the summer. It investigated crash history, public transportation availability, as well as present day and future road conditions. VHB is a well-respected engineering firm that has completed many hundreds of studies on Cape Cod and elsewhere for applicants and also maintains on-call design contracts with several Cape Cod Towns. The TIAS determined that no Level of Service (LOS) changes will be created with the project. - VHB is a highly regarded firm, and I work with them consistently. - It should be noted that the applicant approves the scope of work that they want VHB to perform. - There is significantly more VHB could have and can do with their extensive expertise to analyze this project on both its internal design as well as impacts to adjoing roads and neighborhoods as requested by Town originally. The proposed residential development will result in a total of 344 new vehicle trips per day. Of these, there will be a total of 28 new trips (7 entering/21 exiting) during the weekday morning peak hour, and 33 trips (20 entering/13 exiting) during the weekday evening peak hour. At peak hours (the busiest times), this is the equivalent of less than one new car per minute (0.46 and 0.55), exiting or entering at Great Marsh Road. - First of all, the “less than one new car per minute” is math semantics. Residents as described have common work schedules, school start times and end. One car per minute is not based on any reality, it is a calculation for a reference point. - The Consultant, VHB, provided a standard Traffic and Access Study, TIAS, I reviewed the 300+ pages of the study - Study was to be based on “local knowledge”. (Pg4 of study) I cannot determine who that was, who was interviewed? 3 - Study data came from one-day traffic count in August for the basis of this “comprehensive” study and assessment of impacts. - VHB states they provided a “standard study” - Where are the assessments of impacts of area roads? There is capacity information, but where is Richardson and Juniper impacts to neighborhoods depending on options. - One day of data capture, dated Tuesday in August - VHB summary states in summary it was done in September? - They use an Institute of Traffic Engineers Land Use Code 221 and 210 models of neighborhoods with detached homes and development with high-rises. What local options and variables have been applied regarding this location? - A lot of assumptions are made with this average model without local overlay of local impacts. - While August represents the Cape Cod tourist peak, weekday conditions in September better represent the local operational and safety peak for neighborhood streets due to; School in session, work commuting, organized activities After school sports, practices and parents making short errand trips. - September is much more concentrated in the morning and night peak hours. - An August weekday understates risk, September is riskier for neighborhood streets. times. The TIAS concludes that "Capacity analyses were conducted for each of the study area intersections and roadway segments under 2025 Existing conditions, 2032 No-Build conditions (without the proposed development), and 2032 Build conditions (with the proposed development). The analysis results show only minor changes at study area intersections because of this Project." - Based on early weekday in August and average national model without local variables. The proposal will result in the net elimination of three existing or proposed driveways with residents backing out onto Great Marsh Road. There will be only the new roadway with a curb cut on Great Marsh Road. The Applicant proposes to install stop signs and stops bars within the new subdivision and at this curb cut. The Applicant is also willing to install the same on Juniper Road at its intersection with Great Marsh Road. - I believe the applicant was asked by DPW to install stop signs and stop bars at the curb cut in DPW comments and concerns. The proposed location of the subdivision curb cut on Great Marsh Road lines up with the layout of the old paper road running through the land. The Applicant reviewed the possibilities of proposing a four-way stop at the new subdivision or shifting the new roadway to off-set from Juniper Road. From a transportation engineering perspective, neither of these is warranted nor desirable. The former would lead to further traffic delay closer to the Phinney's Lane intersection. The latter would interject new conflict points along the road and potentially lead to headlights shining into houses across the street. - [Ex 1] The layout and for the most part non-existent plan called the “paper road” is an old plan in the town records submitted on behalf of the memory care facility at one point in time. - It should be noted that the proposed entrance sightlines fall short of desirable distances by 65’ looking east and 50’ looking towards the curve travelling West on Great Marsh from VHB study, p27. - Applicant has added landscaping on plan C3.2 at this entrance which may make the sightlines worse. VHB recommends removal of landscaping. - According to C3.2 Applicant does not own enough land to the West to mitigate the sight line on Great Marsh towards the blind curve. 4 - Study showed a 38mph average speed in a 30mph zone in project entrance area. - The relocation of the curb cut eliminates the adverse impact to the older neighborhood to the north, enhances the ISD, Intersection Sight Distance which at its present location is not “desirable” per the traffic study and can be sited between the opposing homes on Great Marsh. Headlight sweep is the same and will be significant now at either location with vehicles turning right and left. In discussion with the Town DPW and COMM during informal site plan review and thereafter, an emergency access drive out to Phinney's Lane was requested. This ground-vegetated drive is shown on the plans with a permanent gate and a knox box providing keyed access as needed to public safety personnel only. - [Ex 2] Did Comm request access to the Level of Service F route 28 intersection? - Vehicles continually stacked in 2 lanes heading south on Phinney’s intersection interface. -Although lights and sirens may be used, this will cause significant confusion and safety issues for both Comm and public. - How is this kept clear of snow with access in the intersection. (46 accidents in recent 5 years) As requested by the Town, there will also be pedestrian access in this location out to Phinney's Lane. The Applicant has agreed to install a sidewalk along Phinney's Lane to connect to the existing Route 28 sidewalk and crosswalk. A question was raised as to whether this pedestrian path could be shifted onto the Town's adjacent, sewer pump station property. If the Town is willing to grant the Applicant an easement to do so, this is a potential option. - The current proposed sidewalk on Phinney’s in reality is in the Route 28 intersection interface. This short route takes public to cross walk to the sidewalk on south of 28. No access to main outlets on North side of 28. (A small sidewalk that is not maintained by Town is on north side where main food outlets are located. - Who will maintain this sidewalk in front of DPW Wastewater building? The proposed subdivision will not result in any thru-traffic to adjacent subdivisions. The exiting traffic from the proposed development is intended to travel either left or right onto Great Marsh Road. The internal speed limit will be signed for 20 mph. In such a situation and as generally followed throughout Barnstable in residential subdivisions, internal sidewalks are not common and one is not proposed for this subdivision. - [Ex 3] Yes, Juniper is not “intended” to be a shortcut, but when view to Phinney’s / Great Marsh to the east is stacking as it can daily, route of least resistance and perceived convenience will be straight forward on cut through to Phinney’s lane. Cut through was used by Town for sewer project. - Applicants Legal representative speaking at the October 8th hearing that they could have Richardson Road as an access point legally. - Testimony by the applicant in the October 8th hearing stated approximately that they considered Richardson Road as an egress/access, but he did not want to live in a subdivision that had a cut through it was bad public policy. (October 8th testimony) - How is project curb cut across from old Juniper neighborhood different? - No sidewalk for bus travelers from housing to bus stop on busy 20’ entrance, especially in winter?? Where will bus shelter be located and how maintained. - Lets not repeat mistakes made in 1960’s neighborhood designs. School buses will stop on Great Marsh Road as they do at present. The Applicant is willing to install a bus shelter in the entrance area. 5 - Again, how is bus shelter accessed by children and elderly? Site Design and Screening The Centerville Cove housing is intended to serve an unmet need in the community. Owners of the lots and renters in the apartment building will be teachers, nurses, public safety personnel, and young people, among others. The Applicant is proposing a mix of three- and four-bedroom homes. Elevations and floor plans for the four-bedroom option are included with this supplemental submission. Elevations and floor plans for the two three-bedroom options have previously been submitted. Each house lot will have a private, two-car driveway. There will be building envelopes and landscaping, and individual lot development and utility plans will be provided when seeking building permits. - Is driveway parking linear or side by side? Linear will create street parking causing issues with emergency access. - Landscaping plans are not required now at least for perimeter of project for ZBA review now? All permitted later by building department? Regarding the apartment building lot, the Barnstable Zoning Ordinance requires 9 x 20 parking spaces, though there is also a graphic included in the Ordinance that allows for 9 x 19 parking spaces. Ten-foot wide spaces are not part of the Zoning Ordinance. The Applicant is proposing 9 x 19 parking spaces in accordance with customary design. The requested waiver for building height is to be only six inches above and for a half-story beyond what the Zoning Ordinance allows. If the top floor was limited to half the size of the floor below, then it would be considered a 2.5 story building. This, however, is not feasible as part of the affordable housing proposal. The proposed apartment building is suitable for this transition zone between the commercial shopping plazas and larger development to the west and the residentially used districts. The building, at its closest point to the traveled ways, respectively, will be located approximately 390 ft. from Great Marsh Road, approximately 300 ft. from Phinney's Lane, and approximately 260 ft. from Route 28. The building will also be screened by existing and proposed vegetation and buildings. The roof of the building may be visible from off site in the distance. There will be bike racks at the apartment building. No exterior storage is proposed at the apartment building. Solar is not an option with the apartment building because mechanicals will be located on the roof to hide them from view. The individual homes will be solar-ready for the future. There will be a ten-foot landscape buffer along Great Marsh Road. The Applicant will maintain the existing vegetation in this buffer to the extent practical and is also willing to plant additional trees in this buffer to enhance the buffer. There will be additional trees and vegetation planted as well where existing driveways are being closed on Great Marsh Road. - Current landscape design C3.1 does not show any buffers and minimal landscaping. DPW has requested “coordinated planting and tree removal plan” Is that available now so ZBA can review and make decisions. - What does “extent practical” mean regarding maintaining existing vegetation in 6 the 10’ buffer. Who decides and how is this coordinated with DPW as requested. There will be no fence around the playground, but there may be as required around the stormwater management area. The playground will be open to all residents of the subdivision. The Applicant can provide a rendering from Great Marsh Road later. Lighting will be dark-sky compliant with no glare off site. Comprehensive Permit Law As set forth in the Barnstable Comprehensive Permit Regulations and in accordance with State law, an Applicant submits preliminary plans - site development, utilities, architectural, and subdivision, for review. This anticipates that final plans will be prepared after the Comprehensive Permit has issued. Conditions are appropriate to ensure, e.g., that the ultimate connections to the Town sewer, the final stormwater management system, and the layout of the improvements to be built on the for-sale lots are prepared and submitted before obtaining local permits to install and build. In this case, the Board of Appeals is serving as the Planning Board for purposes of the proposed subdivision. In accordance with MA law, a Town reviewing a project involving affordable housing looks at the proposal the same way that it would in reviewing projects not involving affordable housing. For example, when looking at Site Design and Screening for Centerville Cove, the location of the land in a transition zone between larger, more intense commercially-zoned land and more traditionally-developed, residentially-zoned land is part of the analysis. In addition, screening vegetation is meant to soften the property and make it more attractive, not to block buildings from visibility. The legal standard and vote required in review of Chapter 40B proposals is different than the legal standard under traditional zoning in Chapter 40A. For Chapter 40B, the Board votes by majority, not super- majority vote, and the standard ofreview is whether the proposed development is "consistent with local needs." This is a defined term and is more than simply whether there is neighborhood support or opposition. There is a rebuttable presumption in MA law that an affordable housing project under Chapter 40B is consistent with local needs if a local community's restricted affordable housing is less than ten percent of its year-round housing stock: A. 'There exists a rebuttable presumption that the regional affordable housing need outweighs local concerns where the town's stock oflow and moderate income housing is less than ten percent." (see Zoning Board of Appeals of Holliston v. Housing Appeals Committee, 80 Mass. App. Ct. 406, 414 (2011) and Zoning Board of Appeals of Hingham & another v. Housing Appeals Committee & another, 24-P-828, 2025, Appeals Court of Massachusetts); and B. In Zoning Board of Appeals of Canton vs. Housing Appeals Committee & another (451 Mass. 158, 2008), the MA Supreme Judicial Court in a footnote wrote that "Pursuant to G. L. c. 40B, §§ 20-23, if a municipality has devoted ten per cent of its total housing units to low or moderate income housing, it may deny a comprehensive permit application, and that denial is conclusively presumed to be consistent with local needs. A denial in these circumstances is not appealable to the Housing Appeals Committee (HAC)." There are certain matters that are within a Board's jurisdiction to request and review in affordable housing projects and others which are reserved for the State. The MA Housing Partnership's Chapter 40B Handbook for ZBA's (2017), notes: A. "The Chapter 40B Regulations specifically prohibit reviewing 'a proforma in order to see whether a Project would still be economic if the number of dwelling units were reduced, unless such reduction is justified by a valid health, safety, environmental, design, open space, 7 planning, or other local concern that directly results from the size of a project on a particular site' (760 CMR 56.05(6)(a)(4)). Reducing the density of a comprehensive permit development should be based on valid planning considerations, design deficiencies, or environmental impacts." B. "Recent case law and changes to the Chapter 40B Regulations have helped to distinguish aspects of comprehensive permits that belong with the ZBA and those reserved for Subsidizing Agencies. As with any other type of development, local jurisdiction includes the physical and operational aspects of a project and its impact on public health and safety and environmental design. In general, conditions of approval that involve these interests are appropriate for a comprehensive permit, assuming they are based on local requirements, customarily apply to other types of housing development in the community, and do not make the proposed project uneconomic." The Board is charged with reviewing a proposal under the above standard and may include conditions that do not render a project uneconomic. The Board balances the need for affordable housing with zoning, environmental, health, safety, site design, open space, and planning impacts of the proposed development. The goal is to create quality housing that is affordable for qualified individuals and families and a source of pride to its residents, the Town, and the project proponent, while at the same time appropriately protecting public health, safety and welfare. Miscellaneous Waivers. The Applicant will subsequently provide more specificity to each requested waiver. ADU's. The question of ADU's on lots within an affordable housing subdivision has not been answered by the State at this time. If the Applicant learns of an answer during the public hearing process, we will so inform the Board. HOA. There will ultimately be an HOA for the subdivision, but this is not a traditional part of regulatory review. This notwithstanding, if there are specific concerns for which a particular restriction might be potentially relevant, the Applicant is willing to discuss the same with the Board. Plans. If there are certain matters that the Board would like to see on the plans which can be reasonably added at this stage, the Applicant welcomes discussion with the Board on such requests. Thank you. I am respectfully requesting the following as part of the review process by the ZBA: 1. An enhanced Comprehensive Traffic Plan and Impact Study. The current study is standard and the scope for local impacts needs to be expanded. This can be done by VHB and built on previous work to save costs. 2. A review by VHB or Applicants engineers. a. [Ex 4] To relocate the project entrance on Great Marsh for many reasons stated. i. This is not a hardship ii. Eliminates Juniper neighborhood adverse impacts iii. More “desirable “Intersection Sight Lines”, bus stop view issues. iv. Same headlight sweeps right and left as proposed location v. Agrees with Applicants testimony of not creating direct cut through. b. [Ex 5] Add Richardson Road as mainly an egress to the project. i. Richardson Road is “commercially” wide where applicants’ property abuts it. ii. Only commercial business from this point to Route 28. 8 iii. Offers an efficient vehicle distribution option for residents travelling west on Route 28. iv. Offers “safer” and more “efficient” passage for residents on the north side of 28 where most businesses are located. v. Legally viable per testimony from applicants legal representative.