The Town House meeting room was packed for the Marion Planning Board meeting on October 7 with residents opposed to a plan for a two-lot subdivision at 213 Converse Road off Beach Street, with some insisting the engineer’s stormwater management design will result in flooding that would impact public safety.
When it was their turn, some residents spoke for over 20 minutes reading prewritten statements and listing the various ways they say the plan and a number of waivers, if granted, would violate subdivision bylaws.
At the core of the controversy is a proposed detention pond that one resident put into perspective as being “the size of four tennis courts”. The detention pond’s purpose is to capture the excess stormwater created by an increase in the impervious surface of the driveway, fast-flowing roof runoff of the new house constructions, and the disturbance of about an acre of vegetated earth. However, abutters and at least one Planning Board member, Eileen Marum, questioned the owners’ ability to fulfill the long-term stormwater basin maintenance requirement that, if not done, they say would lead to system failure and severe flooding.
Sure, the Planning Board could place a condition for regular on-going maintenance of the stormwater system in order for it to function as designed, but the matter of who, or which town entity, would be tasked with enforcing the condition was not determined.
Lawrence DiCara, attorney for applicant Shelly and John Keith, asserted that this latest updated plan is a “far better proposal” than the prior plans. DiCara said he also submitted an updated draft of a homeowners’ association agreement to Marion Town Counsel Jon Whitten in August, but hadn’t yet heard back from him.
This updated plan, DiCara stated, came as a result of the “extensive” peer review conducted by JC Engineering on behalf of the Planning Board. The Keith’s engineer, David Davignon, stated that the only significant change was the relocation of the detention pond from downhill to uphill, with some minor technical changes in grading, pipes, and inverts.
JC Engineering’s Brian Wallace stressed the importance of maintenance of the basin, which Marum quickly supported.
“If that fails, then you could put at risk the health, safety, and welfare of the abutters,” Marum said. “Excess water would probably flow onto abutters’ property,” property that abutters say is already prone to excessive flooding under the current topographical conditions on their street. She was also concerned about the two feet of separation between the basin and the groundwater and how it relates to climate change and increasing major storm events.
Planning Board Chairman Will Saltonstall quoted a letter he received from Whitten that stressed the need for basin maintenance, perhaps through a third party contract or an escrow account that a third party could draw from to perform regular maintenance to keep the system clear of debris and silt – and snow, added Planning Board Andrew Daniel.
“You have to keep it clean,” said Daniel. “It’s on you because you’re responsible for that water coming down that road,” which, he added, is a private road therefore not under the management of the Department of Public Works.
Marum took issue with the board’s consensus that a 12-foot “grass paver” for access around the detention pond would be better than a gravel access way, which Marum said should be gravel as per the language in the town’s bylaw. Her fellow board members seemed to support the grass paver because, like gravel, it is pervious.
“We either go by what’s in our bylaws, or we don’t,” said Marum, who then pushed for a back-up plan should the system fail.
“If constructed properly, it’s not going to fail,” asserted Davignon.
Marum doubled down, further citing the Master Plan and how some its points pertaining to climate change readiness and resiliency relate to this project.
Planning Board member Norm Hills, who is also a selectman, pointed out that a master plan is not a bylaw and does not impose written requirements.
“I don’t think it needs to be written,” said Marum, calling it common sense to require the project to take the impact of climate change into consideration and include stormwater system redundancy in the design.
“Common sense, you know, these designs [and] the process they’ve been through to do this design,” said Hills trailing off. What Marum is suggesting, he said, goes “over and above what we really require in our bylaws.”
Hills later said the system, as designed, would reduce the flooding that is already happening at the site.
That is, of course, if clogging was avoided through regular maintenance, said Marum.
Davignon was certain that his design meets the standard without adding redundancy as Marum suggested.
“Well, you’re certainly not overextending yourself to try and think about the health, safety, and welfare of these abutters,” said Marum.
“I disagree,” said Daniel, pointing to the engineer’s inclusion of inlets on both sides of the basin. “I think the system would work fine,” he said, as long as maintenance is performed, something that still concerns him.
“They haven’t considered climate change and the amount of water that will be continuing to fall, and it should’ve been a wake-up call for everyone on July 3 when we had two and a half inches of rain falling an hour,” said Marum.
Saltonstall suggested that if anyone felt Marion should change its stormwater standards to consider climate change, the board could discuss that. “But, to me, we’ve got professional engineers looking at this subjectively… and we have to place weight in that.” He later added, “I feel like we have to place some trust in them at some level.”
But residents argued that the request for 11 waivers was excessive, and the series of plans that have unfolded are “riddled with design errors and outright violations,” as one man put it.
“Unfortunately, the latest plans and supporting analysis continue to include fundamental mistakes which clearly do not meet design guidance… and indicate that the proposed stormwater controls will not operate as suggested,” said Beach Street resident Gary Holmes.
With the estimated stormwater calculations provided by Davignon, Holmes asked, how could ground infiltration occur when the basin is sitting in groundwater?
“The plan’s been modified four times” to correct what Holmes said “should have been obvious mistakes,” and the plan “still contains erroneous data,” he added.
Cove Street resident Shay Assad said that if this project is approved, “[It would result in] a nightmare being placed upon these abutters to be in constant litigation with [a homeowners’ association] with no financial aspects – two owners…” He said that, in situations like this with a homeowners’ association with no assets, it is a common practice to demand a performance letter of credit from a bank so abutters can draw on it at-will, should the association fail to comply with the maintenance conditions.
Assad acknowledged the board’s intent to act in the best interest of the abutters, “But it should be disturbing to you that this plan has been subjected to numerous changes,” he said. “If
you decide to move forward… these abutters have to be part of this association. They have to have the ability to immediately draw down on these funds…”
Assad spoke at length and questioned how an additional house could be built on the same lot as the detention pond when the subdivision regulations require a separate lot for detention ponds. He said the building inspector told him only one home could be built if it was joined to a property that already had a house on it. “But creating this fourth home is just puzzling to me,” he said.
Hills said it was because, before, there was only one access road in the plan. Now, there are two access roads.
Before continuing the roughly 90-minute hearing to allow the applicants’ representatives to respond to all the raised points, Saltonstall quoted Whitten in an email he sent him about the approval of waivers. First, waivers may be granted if they are “in the public interest” and “not inconsistent with the intent and the purpose of the subdivision control law.”
Waivers should, he continued, “improve, ameliorate, or otherwise make better a preexisting problem or concern related to the locus or surrounding the locus such that the waiver… is offset by related improvements.” Therefore, said Saltonstall, the board should consider the waivers using this framework when the time comes.
The hearing was continued until November 4.
Also during the meeting, the board held the public hearing for the 12 Special Town Meeting warrant articles proposing various bylaw codification changes, voting to recommend all 12 of them.
In other business, the board issued a Special Permit for Use as a Restaurant for Kate Ross, 146 Front Street.
The next meeting of the Marion Planning Board is scheduled for October 21 at 5:00 pm at the Marion Town House.
Marion Planning Board
By Jean Perry