Planning Board resolves Foster Lane dispute

TEWKSBURY — The Tewksbury Planning Board met on Monday, Jan. 23, at town hall.

The board returned to a discussion on a land disturbance permit for Kevin O’Brien and O’Brien Homes at Foster Lane. The original proposal sought to disturb about 63,000 square feet over two areas — one for the construction of a home and one for the improvement of Foster Lane.

O’Brien explained that outstanding engineering issues have been addres­sed and a section has been removed from consideration; the permit will only affect the actual property and not Foster Lane. The land disturbance permit enables the grantee to clear, grade, or excavate a site.

“You want to disturb only the land that you own, and not the entrance way to the land from the street,” said Vinny Fratalia. “How do you propose, if you don’t get that particular access to the property from the street, the land disturbance permit is null and void until you get that squared away. Why would you want to move ahead?”

O’Brien said he wanted to go ahead with the application and get it resolved be­fore moving ahead.

Attorney Dave Plunkett returned to discuss an ap­peals panel case in the 1990s that he was part of in which the state court an­nulled a decision made by the Planning Board for O’Brien’s original project, putting the right of way on the road to access O’Bri­en’s into dispute.

Johnson reiterated that the board will only rule on the land disturbance permit, and anything else was beyond its purview. Plun­kett said that he hadn’t yet been notified of the town counsel’s opinion on the access issue which would enable O’Brien to access his parcel through Foster Lane. Johnson said that because the parcel in question had been removed from the plan the board wouldn’t consider the is­sue.

Town Planner Alex Low­der proposed three paths for handling the application: the board could issue the land disturbance permit for the land owned, continue the public hearing to give time to figure out the ownership dispute, or the applicant could with­­draw without prejudice. O’Brien expressed his preference to close out the issue.

Resident Jim Andella of 70 John E Smith Dr. owns the Foster Lane parcel adjacent to O’Brien’s property under JDB Realty Trust LLC, which is registered at his home address according to the town’s GIS (geographic information system) records, and claimed he just learned of the lawsuit.

Johnson said that he would not relitigate the is­sue. Andella claimed that the court said not to issue another permit, but John­son said the applicant was not seeking the same kind of permit, and it was not the board’s concern as to how O’Brien might access the parcel.

After closing the public hearing, member Jim Duf­fy sought to table the issue “until we have a clearer understanding from planning and legal,” he said, but could not because the hearing was already closed. The board voted to grant the land disturbance permit on the revised plan, with Fratalia voting no and member Bob Fowler abstaining.