madam chair members of the board mark donahue on behalf of smith legacy partners the current owner of the property with regard to our request for extension of the special permit granted back in two thousand and thirteen and which was a subject matter of my letter to this board of november  th i am sure your question is the same as many others which is what's going on and why is the extension necessary so let me if i can rather than go way back in history to two thousand and thirteen because this matter was before the board in weekly deed of the parking lot of placing that as for the second which document called it lee and development agreement which govern the manner in which the property is going to be used in the land development agreement was originally appended to the government basically jump to the next step and move forward hard with the lenders who have issued terms she's intimately by that time they actually moved toward clothes and we started to do that and came to realize that the lenders had was originally approved and has been integral to the negotiations has agreed to join us this morning and i can like to call on mr blake daddy to give us his perspective of the board's perspectives on this we also have george on counsel here with us this morning and i will then came to him asking for particular guidance on the question to what extent or in homes conditions and what is the force in effect we obviously have a lawyer on the board who a year from now will be a fully qualified real estate lawyer  you know i have been very tied to this project both from the role of having been on the planning board and now as a selectman and involved in the  say you know as attorney donohue has said it is truly a complex process ok the financing with two lenders with international law firms and it is certainly not a simple process i think my feeling has been is that the developer has been proceeding in good faith but i must also admit i'm a little bit shocked i'm shocked at the request for a one year extension of the special permit what started out as three months became six months at my suggestion and then the night before the hearing we hear it's a year that's a little shocking to me  i'm shocked that the closing has to take place by december eleventh and there's a holiday coming but all along with has been represented to us as we were ready to close last friday ok so you know planning board this is a moving target this project either this projects going to proceed or it's not going to proceed but that don't needs direction i hear from the businesses residents are frustrated they don't know when how to plan how to proceed so planning board while i understand it's been a complex process it's a project i want to see go forward you know i feel very vested and i've been very supportive of this project but at the same time it's been a moving target and that's been disappointing i'm shocked by the one year extension ok last minute you know i'm it's the law on the lapse of special permits is we more gray than anybody would like and i think this is an attempt to bring br line tests to what constitutes an exercise or a lapse of a special permit where they're not provided in the general laws and i think it's a reasonable way to try to handle the full lack of specificity in in chapter forty a about what constitutes the exercise of a special permit to avoid lapse so that what this document attempts to do is to let is to have the planning board define that things have to happen on a certain schedule or lapse has occurred and i don't view that so much as imposing conditions additional conditions as finding good cause based on the representation that the project will me they certainly certain schedule in the end and what the board is being essentially asked to do is to find that as long as you do as you've represented you will do in this document continue to move the project along on this schedule with the planning board find that there has been good cause for the failure to meet the two year deadline for substantial construct or the commencement structure because there are no cases so we were operating in a little bit of a you know try to manage this using common sense in our reading of the statute and i think this is a responsible and defensible have as mr baghdadi said we have a number of documents and some of them contain deadlines of their own one of my concerns just looking at these deadlines is whether they are compare and none of us have had time to review this whether they are compatible with the document that if this moves forward the board of selectmen will be signing since the  having to town documents with incompatible deadline inconsistent deadlines seems an invitation to make this area even more gray joerg the land development right but i the land development agreement is a contract that's in forcible between the town and the developer with its own remedies all right and this is the whatever deadlines are imposed by the board of t permit don't affect or supersede that so you could have a situation in which they might be in breach of the land development agreement and over the town liquidated damages but still a lot of they had their special permit laps so those two don't have to line up both the plot by their own terms and the and the consequences of failure to meet one are different than the cuts one says of the failure to meet the other but they they both independently apply and we don't have to line them up i can say that under the agreement they have i believe ninety days to commence construction after the deed is recorded so and that question if you will that's being built in and whether if i recognize there's no case law on this but if we impose these conditions or this sort of this road map to what we believe is good driven by lenders counsel and i think it's based on a degree of paranoia about what somebody might conceivably argue is required to avoid a lapse so they want they want to be able to get as far into the project as possible to to defend themselves against possible claim that there's been a lapse by having it i'm not indorsing this but this is what what the lenders have asked for and have asked mr starr and his team to ask for just just to make sure that even even if we meet this schedule somebody isn't going to claim that you know placing much earlier deadlines in here for specific actions and putting in the remit the that this deadline is met the special permit has lapsed from my standpoint the document still requires what i would consider to be exercise well within six months of of today's date yes the joy if you go through the list of work to be completed according to the time pouring a foundation you've commenced construction and i i think that's even a fairly conservative way of interpreting the statute so i really if they start pouring the foundation by this date  they would have avoided the lapps argument the reason they're asking for it for the for the board to to say one year is because they're not comfortable betting the amount they're landing on that being what i wonder if either if it council could comment on whether the conditions about commencing only one foundation and starting only one building is consistent  land development agreement because i have not looked at the land of elm in agreement for years and i'm concerned to me starting on one building does not look like it's a real commitment to the project well  land development agreement has a deadline for commencement of construction and then has a deadline for completion substantial and i don't believe and i'm sorry i don't have the land development agreement in front of me but i don't believe  agreement requires that they commence more than one building by that ninety day deadline but it does require completion of the project was within the longer timeframe so  only one building is that there is a sequencing for construction and contractors here if you want to get into the detail essentially but it deals with working around the existing tenant be availability of the empty parking lot the sequencing of how that all falls the other in order as opposed to simply doing it as if it's just one big project and that works also because of the great going out to the commerce stream my question was really simpler than that what is the time from the start of construction to the completion of the entire by keep the construction going or give them away some fashion it's a long time in my mind but the benchmarks achieved is what we're telling you is what you would have considered substantial use because we're working and i was on the idea of simply getting more general discussion i guess i have another question i guess that i imagine actually neighbors or citizens may raise that my understanding is that the completion of the trip polo road heaving is on hold until you will do your utility work and so as as i think about the impact on the businesses encroaching square the residents of cushing square anyone who drives through cushing square  utility work as not one of the conditions of this special permit and i'm wondering if one of you could speak to the timeline for that so that you know we minimize the impact on the town of belmont  comment when i came in prepared to think about the the six month as attorney donahue is trying to impress upon our board and the people here this morning about demonstrating good of the twelve months flew in the face of that and to my mind and i understand the lenders position and some of the qualifiers to give you a cushion as you said something to hold this up suspenders or some type of other apparatus home i'm wondering if there is some opportunity for you to discuss whether or not you can close within a shorter timeframe to help demonstrate the good faith if you can work towards closing on this project within the ten or fifteen day period i don't know what happens next week or reviving the follow me how long it takes people when people stop working or when they start back up i've loved to say december fourth but i have a of hauritz to making promises that nobody else is committed to just because i want it to happen so i think the eleventh is conservative i'm hopeful attorney paul i've sent him over as far as structure and i'm hopefully going to close a water i would love to close with but what i don't want to do what i don't want to do is come here and say i'm just the devil i don't want to do this so i'm hopeful we're going to close a lot earlier or start earlier so that gnostic can mobilize on site and we're not trying to start in january but we're starting in december the sooner we start the sooner we finish the sooner we finish the sort of cash flow stuff so it's all there is just trying to be conservative so i don't come back here and have to beg you to come and show you the understanding but i don't want to try to tell you it's and mr downhill i would i would have to say that were we to grant this extension and you were to return to ask for any additional extension i would because the the the consequence of failing to meet any of these deadlines is the death penalty for the project i think you can assume that some cushion has been built in for all of these states and that nobody is going to try to to  push any of these deadlines to the to the last day if possible i guess one question i have is whether is whether we would proceed with a six month extension and reconsider in six months i feel like we have reconsiders so many times and we have been you're right it would be unconscionable but that's why i ask you to focus on the benchmark six months from now will be talking and think to some extent academic terms six months from now to be a foundation going in place it will be asking to extend  special permit for us to start work people be saying you've already started working for the foundation it's simply to meet the lack of clarity in the choose the law that we look for the ear if we are building on a we're not on that but the additional time from the april fifteenth day to go to the full year is truly simply to make sure that the lenders are comfortable particularly in out of state lender it comfortable that there's no argument that somehow the money that they have invested to that time could be at jeopardy because somebody asserts under some theory you have to have started the actual construction of them but for the neighborhood the key is what your buy and begging us to do is to be on that site s the devil demolishing bill two months from now that's the start and i think all of us would think of that as the start of construction so i understand the difficulty and if i was simply asking for a period of time to kick it down the road to be fair but i ask you to focus on the benchmarks as our commitment irrevocable commitment to get the project underway  that so under the land development agreement if the the demolition begins in january then thirty months from now thirty months from this coming january the project be complete logic of this if the planning board were can give a six month extension and indicate they're assuming the deadlines are met in which case you come back to the planning board and we see it say we're happy to see you if you feel you need another six month extension we'll give you another six month extension just because it's something you want unlikely as it would be necessary  ssurance of a warm reception for another six month extension deal with years of lenders needs i think actually trying to think of the chair as i stand here and actually make work against us because to some extent is suggest that the five bullet points that we have as benchmarks are not sufficient that they have to be something else to constitute substantial use because otherwise you otherwise why would we a why would you be saying come back and b why would we be here if we all agree we started you this i think if ideally if they meet the benchmarks and the issue doesn't come up but it certainly i wouldn't expect that it would come up between the town and and the developer i think with the lenders are concerned about is the potential that some other party with withstanding would would raise the question as to whether the special permit had been properly exercised and then so again i see that as being this being with the benchmarks in place practically speaking a five months extension by with it with an additional seven months tacked on as you know insurance  against arguments that may come from other directions and i i think it's an abundance of caution but as you just heard there's somewhat something on the order of sixty five million dollars being lent this project so  and and it's it's merely a financial penalty if they're late meeting the deadlines and in this extension the consequences the last project i think what's hard about all of this even for members of the board and it would much be much harder for the neighborhood is and the businesses is without seeing without having this next to the land development agreement nope nope i can't i couldn't answer a question from anyone in the neighborhood about what this all means in terms of timing and why it makes a difference that we that we go to a year instead of six months the basic problem i see and in my work is you give people a year they take a year and that's what i'm concerned about but if the can if the construction is not the late because we're only talking about the the financial paperwork behind the work we ought to be able to see something that would convince us of that and we have not had time as i have not had time as a board member to review those kind of i would just say for purposes of predictability th consequences in this decision are more consequential in the cut that for the reasons i just mention the consequences in the land of elevating its thirty three thousand three hundred thirty three dollars a month to be late to meet the deadlines in the land development agreement the you know a significant amount of money and certainly a penalty that i'm we expect the developer will want to avoid this is a big project and you know it's pot and a to the developer has purchased some some protection against that by by contracting with the contractor to meet those deadlines and the contractor may wind up eating the cost of the ways of if the project is  but there are financial consequences what you're putting in this document are if they don't meet these deadlines they've lost their permits so if you in terms of being able to make assur residence what this document says is far more important than what the land development of your freeman says i can't couldn't tell the residents just because of the deadlines in the land development remit that something will actually take place if i can say they'll either so i appreciate that you went ahead and drafted the special permit with conditions to recognize that it's hard to swallow the concept of one year as opposed to six months however i think you know listening to counsel and mr donahue and reading through this draft special permit i think that this is a this technically one year extension with these very specific conditions in it is much more protection for the town than a bare six month extension where nothing might happen until you know five months and twenty nine days so  i think that this does represent a good faith effort on the developers part i do think that it's more protection than we would otherwise have with a bare six month permit and and and i recognize also that lawyers are conservative there's a lot of money at stake here and that question really is built into place that the extra six months at the end so that there isn't a party who comes along and challenges the project at that point in time when there's a bunch of money already sunk into the project and then suddenly everything comes to a screeching halt while the court system figures out exactly what substantial use means which could take many many years hold up the developer hold up the residents of cushing square and leave us with a hole in the ground for who knows how long so i think ultimately we need to really carefully consider this significant layers of protection for the the first years that there is a series of drop dead events and if these deadlines are not met we're not going to have a discussion of whether the special permit still holds the special permit does not hold the second is because they are well defined date if we vote to extend we will certainly add this as a calendar to the website and i think we may rely on quite a number of people many of them here too and we will look to them because we are in cushing square frequently but not every day many of the people here are including some where every day and we will look through them from the planning board if these steps are not meant  in terms of  as to whether we close whether the closing house can take place on the eleventh of december or the fourth of december while genuinely and knowing does not seem to me consequential any other if not i will ask for a motion it will add list there yes and page two of this draft special permit has a mechanism by which we will ensure that each benchmark is met so it's not we're not just looking to the residents to police this and asked to come in and provide a written certification that they've met each benchmark  and if we disagree with that we have thirty days to to object and have a conversation about whether or not each of these conditions has been fully met at the time and excellent point barbara and thank you for calling it to everyone's attention i do know i do not know what the time lapse would be in presenting said documentation to the board i am pretty sure there will be zero time lapse whatever that phrase is definitive plans and such to the board for your review and approval to ensure that indeed what you approved in modified recently also is what then is being the building i think your reasoning and barbara's reasoning are completely on point to make a motion that the planning board grant an extension for a special permit with design and site plan review and waivers as set forth in the the this is a very narrow question of whether to extend the permit it is not an occasion to discuss the specifics of the project all of which have been settled the problem in the community in general is that after all this time people really do not believe that however hard you all of you have worked anything will ever happen and if there is going to be this kind of delay there real need for some outreach to get the word out so that people might think that their government is doing something so that we are no longer staring at empty buildings which we've been doing for quite a while and see if we can schedule a planning board meeting for the seventeenth of january which would be an occasion for discussion one way or the  i am certainly well we could certainly discuss there should be a written certification of friends and we could we could review it thank you for the suggestion and now we have emotions with a motion motion to extend the special permit with a design and site plan review and waivers pursuant to section eight of the town of belmont zoning by law as set forth in the draft extension we have before us you very much that is good and we will see you of course in mid to late january all right i'm going to ask we have a number of other items on the agenda i am going to ask people who move out quickly take dante ave waverly street the preparation for the zoning forum which is happening this evening election of officers  because i have never been a believer in last man standing democracy we will adjourn the meeting no later than ten if whatever is still wherever we are at that point we will adjourn and we will pick that up at our next meeting which is on the third of december geoffrey not the first is the first tuesday i thought we had a discussion of this last time you may remember  all right we now move along to one twenty two waverly street where the lands of the revised plan for one twenty two waverl for viewing by the community so that life together for others to consider is that we ask the applicant to since we are all here it is fine for the applicant to walk us through the plans but we should not will these plans in till our next meeting simply be not regardless of the quality of the plans we regret that we're glad you're here the plans we're glad you got the plan still valid and you can certainly speed the plow but this means you will not be able to spend thanksgiving with your special permit with there are good reasons for delay in the plans being received but we still need time to look at them so with that if i may ask people on board to turn to their plans to begin with their land a plan the confusion arises because the landscape plan was submitted as part of the original package so that there has been ample time to review it and i believe it is posted on the  but i think it's not it's not possible for me to go through this in a couple of minutes i think i think i don't know i don't know what to do about it because i mean it's not possible for me to review this live now even if it was part of the original submission by any other board members  think i think the glaring thing is on this side some variety of trees gone that that that's going to definitely be an issue the other thing is that down quite frankly it was stated at the last me that we were actually waiting for those comments  he's comfortable with it's good and we're not going to be voting today on your on your home's dime i think that gives colorful time to review this and therefore making the board more comfortable probably making you more comfortable as well knowing that you'll have a definite direction to go when you get the houses approved or assuming you get thousands of good at the next meeting we can make it conditional on the landscaping if there  some disagreement and what we're asking what you want to provide that's i'm fine with that but we move forward to the house there are only several issues on the houses that were passed and most of those things were so mostly typographical and we did make those changes one of the house was playing good review the other two were special permit i think we did have a good consensus of  most everybody like the houses so just that he'd call it call it a day today without having any kind of plans regarding the houses so that if i have to make any change coming forward to the next meeting it doesn't get the l oh thank you i was eagerly anticipating looking at these documents on friday or certainly getting a head start and you know last night my family came in around five thirty or so and said there's a packet in front of your door and that's a tall order to be able to come in a cogent way present in a discussion with my colleagues understand what may be the concerns of the residents and certainly meet some of your needs without as was pointed out earlier about a process i think that that puts certainly puts me on more use my junior member of the planning board and certainly maybe some of my other colleagues at a disadvantage not having suitable time to look at it and i would be very strongly oppose meeting to the extent possible we should review the plans promptly and provide our comments to geoffrey who can then serve as a point of contact in addition as joe de stefano has suggested since we have had the landscape plants if we vote east especially if we vote affirmatively we should and again carl if you could get comments to geoffrey this would be good we could make it subject to any landscaping conditions that need to be met so that we would be able to complete the process next time is that planted in that town and forage trees i don't see a concrete going up right now especially on the street trees what with the town is concerned if i could done with the town is concern and they're planting trees you're right they are planting trees at a much smaller caliber but when projects come before this planning board and it's been done a good haven't you to give you an example of where it's been done the board has worked with the developer to to go with a larger size to to to basically scale the trees in a more appropriate way to the development so with the town as we placing existing trees their hands are kind of tied to a certain budget they're working place well maybe we could consider something like a three three and a half inch tree i understand robots quite well and see exactly what you say but if you tell the nursery what you're up against i think that th suggesting before i ask for a motion to continue if there is anyone if there is any paper here any resident who would not be able to come on december first and december or december third comment i want to ask invite their operative if i want to give them an opportunity to speak now i look forward to seeing all of you at the next meeting of the planning board in that case and may i have a motion to continue motion to continue case never mind  humor is not my strong i was going to set the computer but i think the light in here isn't good for it but i have printouts so this is  for the zoning changes we intend to bring forward to town meeting jeffrey joel and i and a great many opportunities to review this power point presentation but i'm going to others on the board have not seen it i believe so we're going to take a library moment if you will as people review it at one point i would make is that i was able to do a six month review of the building permits and you'll notice on the last page the last bullet about the building permits a review in the past six months from me first to november first that actually was a deliberate time period chosen because that is the busiest time in the office and the reason why that was done is to see if indeed basically non grandfathering was basically for lack of better way of saying it wiped off a wiped away whatever erased what would that impact mean in the town you'll see that during that time period six point eight percent or thirty three of the four hundred eighty three residential building permits issued would have required some sort of special permit so it gives you sort of an estimate about if you did indeed beginning of the process we'll be outlining the schedule going forward we are what we are presenting is something that we reviewed with the citizens group we think it gets the job done but we are there you hear what others think of it we have tried running hearings in one of two ways one is where we come and say this is entirely open what are your thoughts the other is where we say this is our draft what do you think of it and in general we've found that we get better comments and residents find their time has been better spent by responding to a draft that we present as opposed to that popular asa approach but it is a draft and we we are very joined i will be doing the presentation tonight with of course jeffrey's invaluable assistance and we very much look forward to people's ideas and comments and of course their comments on how whatever we're presenting might be better present any if i agree as well in particular of the slide that really set up the height restriction differences you know the many people including myself struggle with the bridge midpoint distinctions  think i mean there's been an addition since our last b s and i just wanted to go over but i'm happy why don't you go over it briefly and then we'll take that comment along with whatever we get tonight and bring it back for the first assume that comes out of the conversation that was had at the last meeting where the gas tank from multiple propane tanks you know sitting in a yard you know arise and so storage is really sort of propane storage is that what this is intended to capture yes yes it's also recognizing that that terminology needs to be worked on it was and try to at least placeholder at least capture the idea going forward recognizing that the language needs to as you said a placeholder just to remember going forward that we need some language here to capture propane tanks ok which might of course be more economically done by adding the phrase  so we're looking for something that does it is somewhat broader but as jeffrey said when we don't have to amend it one piece of not just your equipment at the time de stefano recused himself i believe that and we move on to white street i believe that moves on to the leaves us with the election of officers as i mentioned at the beginning of the meeting might be tista has to our great regret we're we're still hoping that he'll discover how much he misses us with and how much we miss him and come back but never the less we must prepare for the possibility that that may not happen and that requires the election of new officers it also requires the re adjustment of major committee assignments a nomination well first i'd like to add to liz's comments having just reviewed the october twenty seventh meeting on white street to prepare for further discussion today since i wasn't available you know it just struck me in mike's absence that he was a tremendous chair who made a lot of really important contributions to the board and he will very much be missed and  do my best to advance the town's interests with enormous amounts of help from all of you particular including those who can read plans like a novel years the community preservation committee and the second is the capital budgeting committee  left they have asked that we provide a replacement who had a business background and other obviously it's our board decide who should be appointed they felt that mike was a major contribution that area and and mr distaff know the community preservation act let me put it like this if you if the two of you want to leave it to the next meeting but one of you has to take over the community preservation a is i have been doing it but like the rest of us i had not anticipated becoming chair i had not anticipated my keesters departure and therefore some of the  assignment that made perfect sense no i think you no longer not put too fine a point on it no longer represents an equitable distribution of responsibilities on the board i would be happy to try to do it i have  recently been assigned a couple of projects the biggest one is the is the i ninety austin interchange which has regular evening meetings and but i will try to do this because i have had  fairly light load that the now i can't even think of what the what our streets and transportation committee is actually called track of traffic the traffic advisory committee  have for it for everyone else as it's information i have only gone when there has been a planning related project so that if some if the book if the agenda consist and there are very good about posting the agenda in advance if it if it's like to stop signs and a cross walk that are very specific i have not gone actually gone to the meetings i've read the minutes and tried to keep up that way and there have been very few planning related issues once we have joe and i working belmont center project that was really the most and that sort of stretched into the design and construction as well as as well as traffic advisory issues but that's a that's a pretty light load then i will ask you to take it on i will send you a schedule of meetings and if every meeting conflicts for you is it possible that we can ask the selectmen to recommend an alternate member of this board and so we have a little more help why don't we do that and with this we moved to fifty four white street case fifteen twelve design and so i planned to use special permit to construct a family house we have had an initial hearing on this  so after after last time we made a number of revisions we just kind of went down through the list of your concerns and it sharpened their pencils figured out the best approach and i think we really ended up with a better product in the end and personally i'm pleased with the results i think i think it really captured a number of your concerns and hopefully you'll feel the same way too so  mission but just to highlight the general massing of it that the midpoint of the roof is at twenty twenty eight twenty five  of the general massing of the building it's actually probably five or six feet lower than than allowed so that was one point  in looking at it we we we were able to push one of the units back about ten feet to to differentiate between the masses and not have it read like one rejigging the plans we've also broken away from this this mirrored set of units where where they're identical on both sides in and now there's kind of two separate units which is is less of a duplex so we added an entrance from the second garage to the to the rear of the right unit otherwise both units enter from the street directly and then they have garage entrances to the rear in the length of the building has been shortened by two feet and we lost a foot on either side in part to include a planting strip along the sea along the left hand it is unlikely we will think it is unlikely that we will be well yes if there are i don't want to hurry people's comments on it in which case we will continue it to the third  e at five minutes of can if there is any resident here who would not be here the next time who wishes to comment i'll take comments but  you go to a two one shows the feet get thirty feet two inches so if there was a discrepancy there if you could explain that but that illustration there is helpful because it towards the neighbor and can you point out how that will be addressed because i think that the need to be some kind of catchment structure if it's a drive well or something to capture water but that's not reflected in the that your revisions really were a great effort to address a lot of the different concerns and i think that you do have a much better drawing i really like the  i think center the neighboring brushes i would suggest is just a suggestion that you know you have such a nice farmhouse sort of look here that i would consider more barn door looking windows or no windows i don't think a large structure and  in i think there's a ten inch column would be more in keeping with the size of the construction driving by that is a big building me i think as as one drives by it that's the sense there's a lot of mass there and it it may hit the numbers but it is a very big building for the neighborhood it it is what it is we don't move it obviously it's not to be revisited and so my question is pretty pretty for my more officially oriented colleagues  are we comfortable that when we when this gets built and we're driving by it that this isn't we're not going to we we try hard not  to we try hard to learn from our experience are we comfortable that this will that we won't have the same reaction just comment on the landscaping the building the first floor elevation is close to grade and i find that when you put a tall shrubbery when you have when the plantings of below the windows so that's my first comment the second comment is as far as the trees that are in the back line of the property they haven't been correctly identified i think they need correctly identified there are some no way there are some other species back there ok they're not all no way maples they are tall they do add a tremendous amount of screening from the neighbors that surround that property i really would encourage you and i can meet you about the if you'd like to walk that maybe you can identify them i think we try getting someone to identify some of these leaves we don't know maybe you do you know they'll be helpful but it does bring especially the size of the lot it does bring a lot better scale leaving some of those trees in place and the screening from the natives and now they're going to have a direct visual to this property whereas right now they don't so i think it would your opinion i know i have that's what they're pretty temperamental in this climate and at the end of the driveway where they're going to probably be exposed to a fair amount to salt is not the right choice for doing just what some other smaller painting to graduate up to them to