CV-Yes? Four abutters say not so fast - Daily Times Chronicle: Winchester

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CV-Yes? Four abutters say not so fast

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Posted: Wednesday, October 9, 2013 12:00 pm

WINCHESTER – An appeal has been filed with the Land Court petitioning the court to annul the site plan approval granted by the Zoning Board of Appeal for the construction of a new CVS at the corner of Washington and Swanton Streets.

The appeal has been brought against the ZBA and the developers by four abutters represented by attorney Daniel Hill, who was present at several sessions of the public hearing which began last November and concluded in July. The appeal includes many points which he, on behalf of a group of neighbors, raised at the hearing.

The first objection in the appeal is “title deficiencies,” a claim that the application for the site plan approval was incomplete since it was not signed by one of the title holders of the five contiguous parcels that comprise the site for redevelopment.  

While the developer, Gershman Brown Crowley, Inc., maintained during the hearing that one of the signatories has a claim to the parcel in question through adverse possession, the appeal states that neither the developer nor the other property owners actually has actual title or has filed action to establish title.

During the hearing, the ZBA was advised by special Counsel Mark Bobrowski that it should make a finding based on the merits of the case and leave the title issue to a judge or land court, should there be an appeal. The ZBA took that advice.

The appeal states that the ZBA, rather than insisting upon proof of record title ownership over the project site, as required in its rules and regulations, found in its decision that one of the other property owners (Fashion Real Estate Trust) maintains that it has good and marketable title to the disputed parcel and has presented evidence that it has insurable title.

The appeal then addresses “zoning nonconformities.” Perceived conflicts with the Zoning Bylaw were pointed out during Planning Board review of the project by the town planner and were also brought up at the public hearing.

The proposed project, the appeal states, violates at least three Zoning Bylaw provisions. The number of parking spaces and the minimum area requirement for each space, the appeal contends, are not in compliance with the requirements. The developer had argued that there is a conflict between different provisions in the bylaw concerning parking space size and area and that the project is in compliance.

Further, the appeal states in regard to the parking area that perimeter landscaping was inappropriately counted toward interior landscaping.

The appeal further states that the project does not conform to the requirement for a minimum 20-foot setback when the property is adjacent to a residential district. Hill maintained during the hearing that this setback requirement applies not just to the residential property directly abutting the project site but also to the residential properties which are across the street (both Washington and Swanton streets). The appeal raises the same point.

Although the Fire Department wrote a letter stating that the plan provides adequate access for fire and emergency service equipment and vehicles, the appeal contends that the project does not provide for a fire lane of the proper width.

The appeal continues with “threats to the environment.” Due to soil contamination, the ZBA decision includes a condition that the petitioner file a Release Abatement Measure with the state Department of Environmental Protection. Remediation of the contaminated soil is to be overseen by a licensed site professional.

The appeal alleges that the project will exacerbate the migration of contaminants in the known petroleum plume beneath the surface of the project site and alleges inaccurate representation of the extent and severity of soil and groundwater contamination on the site. In 23 paragraphs devoted to the subject, the appeal claims that the ZBA’s findings do not adequately address remediation or the protection of the neighborhood.

While contamination is the major environmental-impact issue, the appeal also mentions the increase in noise levels from the roof-top HVAC units.

At the conclusion of the 12-page appeal (not counting the attachment of the 20-page ZBA decision), the plaintiffs request that the court annul the ZBA decision, award the plaintiffs their costs in this action, and grant the plaintiffs such other relief as it deems just and proper.

Due to this appeal, the construction of the new CVS is on hold until the court renders a decision.

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