Friday, October 6, 2000
Planning Board tangles again with Buttrick Woods
Imagine paying nearly one million dollars to build a new house, then waiting months for completion, only to be told you can't move in until the twelve surrounding houses are completed. On the other hand, suppose you were part of a town board entrusted with ensuring the proper completion of a conservation cluster housing development, and at least one of the lot owners hadn't understood the consequences of the special permit. Should concern for a family preempt the town's need to regulate development? This is the situation that surfaced on September 25 when Buttrick Woods homeowner Kevin Balboni came before the Planning Board asking to move in to his new home.
Attorney Sean McCarthy explained his client's problem. "The home is in fine shape, ready for the occupancy permit. The only apparent problem is that condition eight of the special permit requires a statement by the board's consulting engineer that the construction of the common cluster driveway has been completed according to plan." (Upon questioning later in the hearing, developer Wheeler admitted that he had also not yet completed the moving of the utilities underground, another condition of the special permit.)
McCarthy further explained that the developer was hesitant to install the required common drive due to the continued presence of heavy (and potentially road-damaging) construction equipment used to complete the ten remaining houses. Said McCarthy, "Mr. Balboni is in a Catch 22 position and is requesting some relief at the discretion of the board."
When asked by board member Michael Abend whether Mr. Balboni was aware of the condition when he bought the lot, McCarthy answered that he was "Constructively aware of it, but not actually aware of it."
Chair Michael Epstein explained his view of the dilemma. "In a subdivision situation we have certain protections by way of covenant or bond. The lots can't be sold so that we can have security." However, with common driveways such as Buttrick Woods, the town does not have the same protection as a routine subdivision that conditions negotiated during the permitting process will actually be fulfilled."
Epstein continued ,"One avenue for us to pursue, working with [the developer] Mr. Wheeler is to create a situation like that of a subdivision, and get additional security from the developer that this [development] is built out to the [original] specifications."
Mr. McCarthy was not satisfied with this response. "The concern I have," he explained, "is Mr. Balboni anticipated that his children would attend schools while living in Carlisle. He is living with his parents in Nashua right now. His parents have listed their home for sale. It is scheduled to close this week . . . Mr. Balboni pays the mortgage [on the construction loan for his new house]," he continued.
Reluctance to set precedent
Planning Board Administrator George Mansfield explained, "I think everybody is working toward the same goal to protect the town and future homeowners."
To alter the conditions of the special permit, "we do have to go through the public process and go through a hearing. I am addressing the issue of process and we have to go through the process. Taking action outside of [a] hearing process is a precedent. We go down a slippery slope,"Abend asserted.
Board member Louise Hara seemed shocked at the lack of awareness on the part of the Buttrick Woods buyers. "Making a million-dollar purchase without a lawyer present to advise them and not to be aware of [special permit conditions] is unconscionable.""I would say he doesn't have the same lawyer," attorney McCarthy replied.
At a prompt for public input, Buttrick Woods lot owner Shannon Hill spoke up as well. "I will be in Kevin's position in four weeks. I wouldn't have signed on with a requirement for 13 houses to have to be complete."
Alternatives for developer
Board member Kate Reid agreed, "We are not talking about a huge amount of money, for the road and utilities to be finished. It probably won't be in excess of $60,000."
Chair Epstein presented Wheeler and McCarthy with three alternatives: to fulfill the special permit conditions regarding the road and utilities, to reopen a time-consuming public hearing process in hopes of eliminating those conditions, or to amend the special permit to require additional security that the road would be completed. "It's your choice," Epstein told them. "Take care of condition number eight, have the public hearing posted and advertised, or amend condition eight of the special permit to require additional security, with Mr. Wheeler's agreement."
However, board members Abend and Dan Holzman objected to the suggestion that additional security would solve the problem. The planning board should not involve itself further with the conservation cluster's common drives, Abend said. "This is not meant to be a public road. We [the town] should not be a party to a private agreement among property owners," he continued. Moreover, "We would be trespassing" if the town tried to complete a common drive, Holzman added.
After much discussion, chair Epstein expressed the ultimate decision of the board. "We can provide you with a couple of options," he said to McCarthy. Either the paving and utilities are set first, or a public hearing must be held."
Privately, attorney McCarthy vented his frustration. "It is most unfortunate when you don't get any compassion from a town board. I mean, have a heart."
© 2000 The Carlisle Mosquito