1. Call to Order

Chairman Raymond Shaw called the meeting to order at 7:10 P.M at the Town Hall Auditorium. Present at the meeting were Clerk Michael Sitar, Doug Sears, Steve Deackoff, Chief John Mackay, Chief Tom Ryan, Director of Community Development Steve Sadwick and Recording Secretary Dawn Cathcart. Vice Chairman James Carter.

Mr. Shaw stated that he received an email from Peter Guglietta of 135 Jennie’s Way regarding a quote he made in the Boston Globe. Mr. Shaw stated he will not debate this and he stands behind his comment.

2. Approval of Minutes

MOTION - Mr. Sitar made a motion to approve the minutes of November 25, 2003. The motion was seconded by Chief Mackay and unanimously voted 6-0.

3. Attorney Mark Bobrowski – Town Peer Review Lead

Mr. Sadwick stated that at the request of one of the members of this committee, Attorney Bobrowski was brought in to handle the peer review aspect of this proposal. Attorney Bobrowski has represented the Town of Tewksbury on a number of appeal cases regarding Chapter 40B. Attorney Bobrowski has also assisted in writing the Zoning Bylaw. Attorney Bobrowski has written a hand book on land use regulations that is known around the State.

3A. Discussion of Peer Review Process

Attorney Bobrowski stated that the first issue to be discussed is the Peer Review Process. Attorney Bobrowski stated that generally when the application for a project is submitted the zoning has to be changed. There are impacts to infrastructure, land swap issues, water and sewer needs that have to be worked out. An example is the Franklin Industrial Park needed millions of dollars for upgrades. To know if a site is feasible, a peer review is necessary. This peer review would include a civil engineer, traffic engineer, financial analysis, water and sewer study and lawyers. This project is already working towards that. The Town of Tewksbury has Paul Hajec for traffic and Joseph Serwatka for civil. The part that is missing is the financial analysis.

Mr. Shaw asked if Attorney Bobrowski had a recommendation on this. Attorney Bobrowski stated that he would recommend Judy Barrett because she knows the area and has worked in the Merrimack Valley Planning Commission.

Mr. Sears asked if Attorney Bobrowski has worked with Tischler Associates. Attorney Bobrowski stated that he has never worked with them. Mr. Sears passed out a report from Tischler Associates done for Barnstable.

Mr. Deackoff asked if Ms. Barrett has ever done a financial analysis study. Attorney Bobrowski stated yes, she has done that for Belmont and Regional Planning Office. Mr. Deackoff asked if she would have the resources to hire what she needs. Attorney Bobrowski replied he believes so. Attorney Bobrowski stated that the applicant has put $10,000 into an account for the peer review process. The Town of Tewksbury needs to check with Attorney O’Neill to make sure if more money is needed that it will be available. Attorney Bobrowski stated that the applicant pays for everything until it goes to the Planning Board, then another account is set up to handled the Site Plan Special Permit review process. Mr. Deackoff asked how can be sure if the fund will be replenished. Attorney Bobrowski stated that he has sent a draft Memorandum of Agreement to Attorney O’Neill that is for the Town of Tewksbury and the applicant and this fund will be part of it.

Chief Ryan asked how many stages and how long would this peer review take. Attorney Bobrowski stated that it depends on the Town Meeting outcome. There are two ways that this can be done. 1) The applicant knows the property and what exactly is going to be done and in turn submits a complete package at Town Meeting and gets the 2/3 vote needed. 2) The applicant doesn’t have clarity of the project and it’s more a conceptual plan presented at Town Meeting which is the first stage.

Mr. Sears asked if there will be a contract with this board. Attorney Bobrowski stated that he will handle that, it would most likely be with the Board of Selectmen.

Attorney Bobrowski stated that he will check with the Barnstable Town Counsel regarding Tischler Associates and he will report back to Mr. Sadwick.

3B. Discussion of Development Agreement Process

Attorney Bobrowski stated that the Town of Tewksbury of Tewksbury should share in the reward from this project as well as the applicant. This agreement will deal with the matters not for zoning. An example of this is in Belmont, the Town sold a piece of property and they had written in the Development Agreement that even if the land was subsequently sold to a non-profit organization, the Town would still collect taxes on that property for 20 years.

3C. Discussion of Spot Zoning

Attorney Bobrowski stated that he has review the draft zoning article dated November 13, 2003. The article favors the applicant. The Town of Tewksbury’s biggest tool is the Site Plan Special Permit so conditions can be attached to this project. Attorney Bobrowski stated that this should definitely go to the Planning Board. This would allow the Town to put restrictions on the site. The Town should set the direction in the size, use and style of the building.

Attorney Bobrowski stated that Spot Zoning has never been deemed more than 20 acres in Massachusetts. This area is greater than that. In the Bellingham case, the SJC decided that the Development Agreement was valid and the Town was not swayed by it.

Mr. Deackoff asked if the Development Agreement was beyond the scope of this committee. Attorney Bobrowski stated he doesn’t know the scope of this committee but stated that this agreement needs to be negotiated. Mr. Shaw stated that the actual negotiations would be by the Planning Board and Town Manger, but this committee can make recommendations. Mr. Shaw stated that the Planning Board would hold public hearings for this article. Attorney Bobrowski stated that the Development Agreement is typically done with the Board of Selectmen and Town Manager. The best process to start a Development Agreement is to come up with a bullet list of what the Town wants and he will help direct when the items go, whether it is in the zoning article or Development Agreement.

Mr. Sears asked what backs up the Development Agreement. Attorney Bobrowski stated that it is contract law. The Development Agreement is referenced in the Site Plan Special Permit, Bonding, etc and it has criminal penalties. The fees are $300 per day for zoning violations and $1,000 per day for Massachusetts Building Code violations.

Mr. Sadwick stated that next Zoning Bylaw Subcommittee is meeting on January 8, 2004 at 7:00 PM at the Police Station to discuss this zoning article.

Attorney Bobrowski stated that the Town needs to come up with goals and objectives to be put in the zoning article or the Development Agreement.

William Lambert of 16 Babicz Road - Mr. Lambert stated that in 1977, this parcel consisted of 67 acres and was zoned Heavy Industrial. There was a solid waste recovery planned for that area. It was approved by the Attorney General but never built. In 1992, it was zoned to Residential.

Mr. Deackoff asked if retail is allowed in a Heavy Industrial zone. Mr. Sadwick replied no.

Robert Kelley of 75 Mill Street– Mr. Kelley presented a spot zoning article he found on the web. Mr. Kelley read the definition of spot zoning he found. Mr. Kelley stated that the Master Plan has not come up with recommendations for that area and where is the benefit of the community to have this areas zoning change.

Attorney Bobrowski stated that the Comprehensive Plan Requirement is not a requirement in Massachusetts. The Master Plan is not a Comprehensive Plan. A Comprehensive Plan dictates what can be done in zoning. This is not the case in Massachusetts. This is not in an enabling act. Spot Zoning is multi-factored test. There are key areas that must be looked at to consider an area spot zoning. 1) Does the zoning benefit a private organization outweigh that of the public, 2) What is the size and number of parcels. The smaller the parcel is the more likely it is to be considered spot zoning. Once the area is over 20 acres, there has never been a favorable case in Massachusetts for spot zoning.

Mr. Kelley stated so this parcel will not be deemed spot zoning. Attorney Bobrowski stated he didn’t say that, but it is unlikely based on the factors. Mr. Kelley asked if it is unusual to work with a proponent and deliver the legality of a Development Agreement and zoning change. Attorney Bobrowski stated it is not unusual. It is responsible for a community to work with an applicant and put money in an escrow account to hire consultants and get the things that the Town wants. The normal scope of projects is that the applicant put money in an escrow account and the Town hires consultants and pays them through this account. Mr. Kelley asked if the Planning Board will do another peer review. Attorney Bobrowski state that two peer reviews will be done. This is a preliminary one but after zoning the Planning Board will have a detailed review. Mr. Kelley stated that if he came up with a zoning article would it be reviewed by Attorney Bobrowski. Attorney Bobrowski stated that it would go before the Zoning Bylaw Committee or this committee and either committee would recommend it or parts of it to him. Mr. Kelley asked if you would work for the applicant. Attorney Bobrowski stated that he works for the Town of Tewksbury.

Geraldine Murphy of 219 Old Main Street – Ms. Murphy stated that in the draft zoning, it does not address ANR or Perimeter Plans. Attorney Bobrowski stated that an ANR would freeze the use for 3 years, but it doesn’t freeze the dimensional requirements. Another ANR cannot piggy-back on this. A detailed Perimeter Plan freezes the zoning for 8 years. Another option is to create a temporary zoning with a shelf life. Ms. Murphy asked if Attorney Bobrowski was here for the Mills Study Group. Mr. Shaw stated that Attorney Bobrowski was hired by the Town of Tewksbury to work for the Town of Tewksbury in the Peer Review Analysis. Ms. Murphy stated that if this zoning is approved, the Planning Board would hire more consultants. Attorney Bobrowski stated that this is in two phases. This is the conceptual plan. Once it is agreed upon and the applicant applies for their permit, which is when the details come out. Ms. Murphy stated that the Planning Board is an elected board. Attorney Bobrowski stated that they appoint the consultants. Attorney Bobrowski added that Mr. Serwatka and Mr. Hajec should be involved as soon as possible. Mr. Shaw stated that this is the first meeting where the Town is responding to the applicant’s proposal.

Attorney Bobrowski stated that he has looked at the draft zoning article and has ideas on how to change this. This committee should look at Section 8520, which deals with district dimensional requirements.

MOTION - Mr. Deackoff made a motion that Attorney Bobrowski starts the peer review process and that he review the escrow account that has been setup with the Town Manager and that it is funded with enough money to include but not limited to a fiscal impact analysis report and regional impact report and should include Ms. Barrett, Mr. Serwatka, Mr. Hajec, Mr. Manual, and if required Tischler and Associates. The motion was seconded by Mr. Sears and unanimously voted 6-0.

Chief Ryan stated that there may be duplication with Ms. Barrett and Tischler and Associates. If Ms. Barrett feels that she is comfortable with doing the fiscal impact analysis, then it should be fine. Attorney Bobrowski is capable of determining which consultants are needed.

Attorney Bobrowski stated that he will contact the consultants this week, but he’s not sure what the consultants can do with what has been given thus far. For example, the traffic will be based on ITE models based on the proposed uses. Mr. Shaw stated that a lot of the uses will go away.

Mr. Deackoff stated that there are other parcels in other towns that have not been addressed, but he could make estimates on full build out of zoning and interchange. Attorney Bobrowski stated that they would use the maximum approach, but they are estimates for Mr. Hajec and Mr. Serwatka.

4. Review of Draft Zoning Article

Attorney Bobrowski stated that there are some comments regarding the zoning article. On page 10, everything except the mix of uses is procedural. In Sections 8520 and 8530, it is good that it states community preferences. The applicant should provide a model of the building. Section 8522 talks about lot coverage. There is also a section regarding parking design. Other local malls should be looked at. Attorney Bobrowski stated that Mr. Serwatka will determine functionality, not how it looks.

Mr. Deackoff stated that he is concerned about the out buildings. The consensus is that there should be no other buildings and there should be at least 600 feet of buffer to the nearest to residents. In Section 8553 it states a 50’ buffer, but 600’ buffer was discussed and should be inserted. Mr. Deackoff stated that the mall should be limited to two floors. Attorney Bobrowski stated that those are examples of performance standards that he’s looking for.

Mr. Sadwick stated that this came up in the Zoning Bylaw Subcommittee meeting. It was asked who was drafting the zoning article. It was decided that the applicant would make the changes and it made sense for the Town to take control of this now through Attorney Bobrowski.

Attorney Bobrowski stated that this should work through the Planning Board for zoning and this committee should make real recommendations.

Mr. Deackoff stated that the zoning needs to be locked down. There is a problem with all the uses by right. Attorney Bobrowski stated that you need at least one use by right. After Town Meeting, it’s the Town’s right to retain power to say no. The Site Plan Special Permit gives the Town the right to say no. If a Site Plan Review is done, then it takes away the Town’s ability to say no.

Geraldine Murphy of 219 Old Main Street – Ms. Murphy stated that Town resources need to be looked at. A 750,000 SF building would require 2% of the Town’s water supply and based on max build out at 2.1 Million SF, would be 6%. Ms. Murphy stated that Attorney O’Neill has stated that he has an inter-municipal agreement with Andover but he hasn’t said for how much. Mr. Shaw stated it would be 2.1 Million conceptual design based on the constraints of the property with 946,000 SF of building. Ms. Murphy asked if sewer and water will be looked at. Attorney Bobrowski stated that Mr. Serwatka will look at both of these.

Mr. Deackoff stated that 750,000 GLA is what the applicant has proposed and should be locked in. If expansion is needed than it should go to Town Meeting.

MOTION - Mr. Deackoff made a motion that the Mills project is limited to 750,000 SF of Gross Leasable Area and is subjected to further review. The motion was seconded by Mr. Sears and unanimously voted 6-0.

Maria Fishlin of 120 Jennie’s Way – Ms. Fishlin asked if the Development Agreement takes place prior to Town Meeting or after. Ms. Fishlin stated that it should be done prior to Town Meeting. Attorney Bobrowski stated that the Board of Selectmen usually signs it prior to Town Meeting so voters can see what they are voting on.

MOTION - Mr. Deackoff made a motion to require the Development Agreement is finalized and approved prior to Town Meeting to be available to the public. The motion was seconded by Mr. Sears and unanimously voted 6-0.

Bob Kelley of 75 Mill Street – Mr. Kelley asked about the proposed development on East Street and other proposals on this site. Attorney Bobrowski stated that is typically what is done. The consultants go to the Town and surrounding Town’s and gets the proposed 5 year build and no build report. This report will include level of services and affected intersections.

MOTION - Mr. Deackoff made a motion to instruct Mr. Hajec to look at the regional impact as a whole with proposals in development in Andover and Wilmington and leaving to Mr. Hajec’s discretion on what intersections should be looked at. The motion was seconded by Mr. Sears and unanimously voted 6-0.

Mr. Kelley asked if the 750,000 SF of GLA was per parcel or for the entire site. Mr. Deackoff stated that is what the under lying district contains. The zoning article is limited to 750,000 SF of GLA. Mr. Shaw stated that he has a problem with that. Mr. Shaw stated that he thought Mr. Deackoff’s motion on GLA was only this area.

MOTION - Chief Ryan made a motion to reconsider the motion made by Mr. Deackoff regarding the 750,000 SF of GLA. The motion was seconded by Mr. Sitar and unanimously voted 6-0.

MOTION - Mr. Sitar made a motion that the project be limited to 750,000 SF of GLA of the applicants land on the west side of Rt. 93 and remove the Kelley parcel from this zoning article. The motion was seconded by Mr. Sears and unanimously voted 6-0.

Attorney Richard O’Neill – Attorney O’Neill stated that the Kelley parcel is on the East side of Rt. 93 and it has 13 acres. There are two parcels in Tewksbury. One is 12 acres being proposed for transportation purposes. That leaves 82 acres left in Tewksbury. Within that is the 40 acres in the “ring road” that the applicant is proposing for the 750,000 SF of GLA. Mr. Deackoff stated that the zoning article should not address the other property. Attorney O’Neill stated that this had to be rezoned for a number of uses. The bylaw proposed is looking to codify use in varying degrees with Master Plan Committee. The subcommittee has determined different uses in this space.

Mr. Sadwick stated that taking the Kelley property out of the zoning article, it would make it easier to draft the Development Agreement if it just dealt with the Town of Tewksbury and Mills.

Attorney O’Neill stated that the Master Plan Committee had several discussions on this area and their subcommittee looked at what Mills was proposing and the Kelley property. The Kelley property is already zoned Heavy Industrial. Mr. Shaw asked if a hotel could go on a property zoned Heavy Industrial. Mr. Sadwick stated he believes so. This is the case for the hotels on Rt. 133. Mr. Shaw stated that the Zoning Bylaw was checked and hotels are allowed in the Heavy Industrial zone.

Mr. Deackoff stated that if the Kelley property is already zoned Heavy Industrial, then they can do what they want with it. The Master Plan has said this area should be research and development. Attorney O’Neill stated that the Master Plan Subcommittee has presented something different.

Attorney Bobrowski stated that there is a lack of communication between the Zoning Bylaw Subcommittee and this committee and this needs to be changed. Attorney Bobrowski stated that Attorney O’Neill gave him a new draft zoning article dated December 9, 2003 and he would like to work with Mr. Sadwick on who is responsible for what. Attorney Bobrowski stated that he would recommend a subcommittee of this committee meet with the Zoning Bylaw Subcommittee, Attorney O’Neill and himself.

Mr. Shaw stated that Mr. Sears presented a Board of Selectmen memo dated November 26, 2002 that opposes any ramp in Tewksbury.

MOTION - Chief Ryan made a motion to adopt the recommendation of Attorney Bobrowski and appoint a subcommittee to meet with the Zoning Bylaw Subcommittee to work on the proposed zoning article. The appointment will be left to the call of the chair. The motion was seconded by Mr. Sears and unanimously voted 6-0.

Attorney Bobrowski asked how many were on this committee. Mr. Shaw stated that currently there are 7, but at the next Board of Selectmen’s meeting it could go to 9.

Mr. Shaw stated that he is appointing Mr. Deackoff, Mr. Sears and Mr. Sitar as members to this subcommittee and that he will serve as an exofficio member.

Attorney Bobrowski stated that he will contact Mr. Sadwick to setup a time for the first meeting.

Mr. Sadwick stated that the Land Use Committee was created to look at two areas of town. The early Master Plan draft designated this area as Office/Research but the Land Use Committee chose to look at it more intensely. This committee wrapped up the end of November. The recommendation was if the access ramp was not constructed the best use would be open space with residential development. If the access ramp was constructed there were 3 uses that were voted on by priority. The first was Office/Research, the seconded was Resort/Conference Center and the third was retail.

Mr. Deackoff stated that he was not at the vote, but the Land Use Committee had previously based there vote on first most desirable, second was neutral and third was least desirable. Mr. Sadwick stated that is not what he believes the vote was and the minutes do not reflect that. Mr. Shaw asked for a copy of the minutes.

Bob Kelley of 75 Mill Street – Mr. Kelley stated that he did a search on Google for zoning overlay district. He search indicated that 99% of the time the overlay district was used to protect something, not create something. Attorney Bobrowski stated that many times it is used to protect something, i.e., wetlands, water source, flood plain. However, it is also used to build something. It may not be the best option to do an overlay district and we will look at this. Mr. Kelley stated he could not find the Commercial Highway Overlay District.

Bill Lambert of 16 Babicz Road – Mr. Lambert stated that at the last Town Meeting we approved an Interstate Overlay District. Mr. Shaw replied that was correct.

5. Traffic Update

James DeAngelo and David Wahr appeared for a traffic update.

Mr. Deackoff asked if Mr. Wahr received a copy of the Corridor Report. Mr. Wahr stated that he has the Executive Summary and Mr. Sadwick should have a copy also.

Mr. DeAngelo stated that last time they were here they were asked to prepare a traffic memorandum report for 750,000 SF of GLA. This is based on a conceptual design and is not intended to replace a detailed report. They talked about the process of the 5^th option of the ring road without connecting the South Street. Mr. DeAngelo stated that he has two copies of the Executive Summary and Memo for Mr. Sadwick. The full report has been mailed to each Town and should reside in the Library. This should be online at the Merrimack Valley Planning Commission soon.

Mr. Sears stated that the 5^th Alternative is not talked about in the Executive Summary. Mr. DeAngelo stated that is correct, but three of the alternatives are similar with full access. Mr. Sears asked what does this do for Tewksbury. Mr. DeAngelo stated that it shows proposed development out for 25 years. The report shows 3.5 Million SF in this area. This project is only proposing 750,000 SF. We tried to retain the consultant for MVPC to do a more realistic projection for 2007, but MVPC said that we could use their models, but they want to remain as a checking authority. Mr. DeAngelo stated that MVPC is meeting on December 16 and at that time they will be submitting the 5^th Alternative. Mr. Wahr stated that the 5^th Alternative has been discussed with them. MVPC requested that this not be turned in so they could get this report out. Mr. DeAngelo stated that this is the procedure that they wanted.

Mr. Sears asked if any of the other abutters want this 5^th Alternative. Mr. DeAngelo stated that they are working hard to get their support. Mr. Sears asked if the 5^th Alternative was more expensive. Mr. DeAngelo replied yes. It is estimated at $35 Million where the MVPC alternatives cost between $16-$22 Million. The difference is that this has flexibility to have other people deliver the components of this. The four other alternatives are conceptual, so costs are not real. Our costs are real numbers. Mr. Wahr added that the 5^th Alternative also included main line improvements for Rt. 93.

Mr. Shaw stated that after MVPC makes their recommendations, the final decision rests with Mass Highway and the Federal Highway. Mr. DeAngelo stated that they will need to prioritize them. Mr. Shaw stated that there will be positive revenue flow to the Town’s of Tewksbury and Andover, so the 5^th Alternative should be considered.

Bob Kelley of 75 Mill Street – Mr. Kelley asked where the costs of $16-$22M come from. Mr. DeAngelo stated that he believes that they are in the report. Mr. Kelley asked who pays for the $35 Million. Mr. DeAngelo stated that the ramps, connection to the east side, and bridges are paid for by the Federal Highway and the circular roads are local. Andover will pay $2-4 Million and Mills will be about $2 Million with required walls. Mr. Kelley asked what streets would be connected in Andover. Mr. DeAngelo replied Ballardvale Road will be connected. Mr. Wahr stated that the current access road across the railroad tracks would be closed and the access would be moved ½ or ¾ mile further away from Ballardvale residents. Mr. Kelley stated that the Federal Highway requires local access, but Tewksbury and Wilmington are not part of MVPC. Mr. DeAngelo stated that the Planners in Tewksbury and Wilmington were involved as well as NMCOG. Mr. Kelley stated that this should be a combined effort of the three Town’s involved. The access ramp would be a parking lot. Mr. Kelley asked how many cars could fit on the circular way. Mr. DeAngelo stated he didn’t know the exact number, but there is only one access into this mall.

Mr. Deackoff asked if you could get to the mall from Ballardvale Road. Mr. DeAngelo replied yes. Mr. Deackoff stated that Ballardvale Road connects to Dascomb Road which connects to East and Shawsheen Street. Mr. Deackoff stated that a model could be done when traffic is stopped on Rt. 93.

Mr. Kelley asked how much Mills is going to pay. Mr. Wahr replied he didn’t know, but Tewksbury will not pay anything.

Mr. Sadwick stated that at the last meeting we talked about a different alternative. Mr. Sadwick stated that he was wrong when he said the trumpet design was not accepted by Mass or Federal Highways. He is retracting his statement. The slip ramp was denied.

6. Reports

Mr. Shaw stated that there no reports.

7. Residents

Maria Fishlin of 120 Jennie’s Way – Ms. Fishlin asked if the subcommittee meetings would be open meetings. Mr. Shaw replied yes, they will be posted at Town Hall and website but it will not be recorded.

Patrick Grecco of 130 Jennies Way – Mr. Grecco stated that Attorney O’Neill has said that the mall is the best option. He disagrees. Mr. Grecco stated on Jennie’s Way there is approximately 1.3 children per household, not the 2 children that was mentioned.

Mr. Shaw stated that he spoke with Dr. McGrath about the following possibilities, 360 MFD units, 60 Single Family units, 720 40B units. Dr. McGrath stated that she considered 2 children per household. Further, 60 children would have an impact to the K-4 grades at the Trahan School. This influx would cause redistricting throughout the Town.

Mr. Grecco stated that on Jennie’s Way there is 1 child in Kindergarten and 2 in 1^st grade.

Mr. Deackoff stated that in the latest report from CHAPA dated February 2003, they indicated the average is .5 children per home. That would be 30 children for a Single Family housing development. Mr. Deackoff stated that Dr. McGrath should look at the website.

Mr. Grecco stated that even though it’s been stated that property taxes would go down, car insurance would go up. Mr. Shaw stated that it has never been stated that the tax rate would go down.

Bob Kelley of 75 Mill Street – Mr. Kelley stated that there haven’t been more than 5 or 6 kids at Indian Ridge at a time. Dr. McGrath should look at this.

8. New Business

Mr. Shaw stated that there is no new business.

9. Old Business

Mr. Shaw stated that he will leave this draft outline report on the table.

10. Next Meeting

Mr. Shaw stated that the next meeting will be on January 13, 2004.

11. Adjournment

MOTION - Mr. Deackoff made a motion to adjourn at 10:00 PM. The motion was seconded by Mr. Sitar and unanimously voted 6-0.

Approved:

Michael Sitar, Clerk