Friday, March 19, 1999
Treibick plan gets thumbs down from planning board
The planning board has voted unanimously not to endorse Theodore Treibick's request for designation of six lots off East Street as a legal Approval Not Required (ANR) plan. Does this vote mark the end of the developer's recent push to gain approval for a seven-lot complex near the town center? Probably, but don't bet your own lot on it.
This revised revision of the project called for a common drive that would follow the Schneebaum driveway, continue across the tract and provide access to two existing homes and three undeveloped lots. The drive has been the subject of considerable negotiation. However, the planning board was not free to grant a discretionary special permit for the roadway unless the ANR plan could be accepted. By state law, such a project requires that the lots involved possess sufficient frontage on an existing road and allow for legal access to each lot individually.
Treibick's attorney, Jacob Diemert, has argued that the required access does exist. On March 8, the board officially disagreed, indicating that in their view too much wet ground intervenes between East Street and the proposed ANR lots.
Backing up the board's decision, member Michael Epstein cited an advisory opinion from the town's new counsel, Deutsch Williams Brooks DeRensis Holland and Drachman, P.C., as to whether or not the claimed access is "illusory." In a letter delivered to the board and the applicant's attorneys, town counsel respectfully opined that were the matter of legal access to go to court, the decision would probably declare the ANR unacceptable. Epstein also took the occasion to refer to a Diemert statement at a previous meeting to the effect that his client had been blind-sided with the sudden spectre of an "illusory access" and noted that "a look at the history" confirmed that the problem had indeed been discussed earlier in the process.
Apparently not wishing to argue the access point further, Diemert offered the board a brief lesson on his view of its function. Declaring that the reason for having a planning board is to settle planning issues in the town's best interests, he called it "a perversion of the process" for the board to base a decision on a guess as to what a court might say. "It's an abrogation of responsibility," he chided.
Diemert concluded his rebuttal by remarking ruefully, "I think we're missing an opportunity to solve this," and pointedly added that the plan on the table would have caused a minimum of damage to wetlands in the area. This was possibly a reference to the subdivision plan turned down by the board in 1996 on the basis of insufficient engineering information. Under that proposal, large areas of wetland would have required alteration. Treibick is currently in the process of suing the board for that first denial in hopes of having the decision overturned in court.
In spite of the board's vote not to endorse the ANR, both Epstein and member Michael Abend went out of their way to compliment Treibick's attorney on his representation of his client and expressed regret that no compromise had been found. Abend told the applicant that one reason for his difficulty in getting approval has been the attempt to squeeze too many lots into an unhospitable area. He even suggested it might be possible to continue consideration of the application for a common drive. However, Epstein made it clear that he could not envision voting for a common drive independent of the lots.
There was a short discussion about whether to close the public hearing and take a vote on the driveway request alone, with Diemert anxious to see the matter concluded that night. In the end, the hearing was continued to March 22 to give the board an opportunity to check with counsel on all attendant legalities.
© 1999 The Carlisle Mosquito