Friday, June 11, 1999
Planning board members tangled in five lawsuits
One of the dubious honors that comes with election to the Carlisle Planning Board is being slapped with a series of lawsuits. Shortly after their victory celebrations had ended, new board members Louise Hara and Thomas Lane were informed by planning administrator George Mansfield that they will automatically became defendants in five separate lawsuits. Millions of dollars are at stake as each developer comes before the board for approval. It should be no surprise in our litigious society that the board frequently gets sued if the plans are disapproved, however valid the reason.
Developer Bill Costello is the plaintiff in one lawsuit against each member of the planning board with regard to his Pine Meadow subdivision. Costello received approval from the board in 1996, which would seem to be an amicable harbinger. The approved plans should have been recorded with the Registry of Deeds in Lowell within the designated time period of (then) 60 days as specified by the planning board rules and regulations. Failure to comply with these recording requirements, according to Article II, Section 9(B)(3), would result in automatic rescission of the approval given by the board.
Costello, through no fault of the planning board, failed to record the plans andas promisedthe approval was rescinded! The plans were presented to the planning board for a second time and approved again, but the Rivers Protection Act went into effect between the two approvals. Costello did not want to risk having the Rivers Act impede his development, hence the lawsuit challenging the 60-day requirement. No problems have been encountered, but the lawsuit remains on the books. The town has since extended the requirement to 180 days.
Berry Corner Lane
The case of Valchuis versus the Carlisle Planning Board was filed as a result of the board's refusal to endorse an Approval Not Required (ANR) plan for a sixth lot on Berry Corner Lane. Michael and David Valchuis own a 13-acre lot there and, against the neighbors' objections, wish to build a house. Berry Corner Lane was not built to modern standards, but its residents own the lane, pay taxes on it, and want it to remain as is. The planning board insists that the lane be upgraded to common driveway standards before they will approve the ANR. The Valchuis brothers are willing to pay for the improvements, but they can only be made with the owners' approval and therein lies the impasse.
This battle recently spilled over to the Carlisle Conservation Commission, where Berry Corner Lane residents continued their opposition to plans for improvement. ConsCom determined that both town bylaws and the state's Wetland Protection Act require the signatures of owners before approval can be granted for a building project that involves private property. ConsCom denied approval on these grounds and the commissioners suggested that the Valchuis brothers go back to their prospective neighbors and try to work out a compromise. According to residents, this will come when the proverbial place down below freezes over and ensures that the lawsuit will be with us for the duration.
Another lawsuit emanating from the board's refusal to endorse an ANR plan comes from John Swanson and the Tall Pines Realty Trust. Original plans for Wheeler Lane used a common driveway to create four building lots. The planning board has always been sensitive to this issue and insists that a legal ANR lot plan, which meets all rules and regulations, is submitted before a common driveway be considered. In this case, the common driveway permit was denied because there was no ANR plan. Subsequently, an ANR plan was filed but not endorsed by the board; that action was appealed in court.
Swanson returned with a plan featuring a 750-foot subdivision road off Kimball Road with four houses. A subdivision road is more expensive since it must be at least 18 feet wide and built to highway standards, but this resolved earlier concerns about the common driveway. Wheeler Lane is presently in the final stages of approval by the planning board, but the lawsuit will undoubtedly remain in effect until the last signature has dried on the definitive subdivision plans.
Hunters Run is an ongoing saga that replaces Seinfeld as the longest running show in town. The McAllister family moved to Carlisle in 1910 and later purchased 60 acres of land. All the property has been developed except for a parcel owned by daughter Jean and son-in-law Robert Kydd.
In November of 1995, developer Brian Hebb signed a purchase and sale agreement with the Kydds to purchase a 16-acre portion of the property. His agreement was extended twice, during which time he attempted, but failed, to get approval to begin a six-lot development that would connect Nickles Lane with Oak Knoll Road. When a definitive subdivision plan for Hunters Run was disapproved by the board in 1997, Hebb proceeded to sue the town and each of the planning board members.
Hebb's purchase agreement ran out and the Kydds are now continuing with their own plan (and the lawsuit). They added 12 acres and started by proposing a through road and full build-out of ten lots on the 28-acre property. This was met with opposition from the neighbors who prefer that Nickles and Oak Knoll remain dead-ends.
The Kydds have gone through countless iterations and now propose a seven-lot subdivision, known as Deer Creek Estates, on two cul-de-sacs. Three houses would be located off Nickles Lane and four off the end of Oak Knoll. This was met with opposition from town officials who fear that 37 houses on a dead-end street (Deer Creek, Oak Knoll, Hemlock Hill, and Laurelwood) would be inviting disaster. The saga is scheduled to continue at the next meeting of the planning board on June 14.
A lawsuit by Theodore Treibick of East Street stems from the planning board's disapproval of his Laurajon Drive subdivision plan in February 1996. This plan featured a six-house subdivision on the 23-acre property. A revised plan was submitted in October 1998 in hopes of addressing the reasons for prior disapproval.
Some of the changes included the addition of a bike/pedestrian path, an offer to change the name from Laurajon Drive to whatever the board preferred, and improved drainage. The new plan also called for abandoning the present Treibick driveway and providing access via a common drive. This 750-foot common drive meanders past the two existing homes and then rises in back to three new house lots, while a separate driveway goes to the sixth house.
Issues around drainage plagued the new subdivision plans. Neighbors were concerned about proximity to wetlands and pollution of the stream that is used for irrigation at Bob Seawright's daylily farm and for watering Dick Shohet's cows. But attention eventually focused on the legality of the ANR lots, necessary before a special permit for a common driveway can be issued. By state law, such a project requires that the lots possess sufficient frontage on an existing road and allow for legal access to each lot individually.
An advisory opinion from town counsel Deutsch Williams called the claimed access "illusory" and opined that, were the matter to go to court, the ANR probably would be declared unacceptable. This prompted the planning board to vote unanimously not to endorse the ANR or issue a special permit for the common driveway. Members indicated that one reason for the disapproval was the attempt to squeeze too many lots into an inhospitable area. The lawsuit remains active while the board awaits the plaintiff's next move.
Planning board incumbents Mike Abend, Mike Epstein, Dan Holzman, Kate Reid, and Bill Tice have learned to accept the lawsuits as a necessary evil while serving the town. There is one bright note, much to the delight of recently retired members Tara Hengeveld and John LaLiberté. When your term expires, the lawsuits also expire and don't follow you home from the Town Hall.
© 1999 The Carlisle Mosquito