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Kilbourn Place Forced Into Full Site Plan Review

‘Major’ Review or ‘Minor’ Review - What’s The Real Difference In This Case?
by Russell Harris
 
At their August 8 meeting, Planning Board Chairman Russell Burke seemed to accept the opinion of the Land Use Committee and the Building Inspector that Kilbourn Place - former site of Donelan’s grocery store - should be reviewed by the Planning Board under a less restrictive regulatory process called a minor site plan review. Robert Collins, attorney for the applicant, said there were several good reasons to accept the plan under this less restrictive protocol.
     Collins said the applicant had already received approvals from various town boards, approvals that would typically be required by the Planning Board under the major site plan review process.
     First, The Zoning Board of Appeals issued a special permit for the existing nonconforming site and building in April.
     Second, the Historic District Commission, too, reviewed the plan for a couple of months, eventually issuing a certificate of appropriateness to approve the building design after several requested changes were made. The HDC is the authority for design approval in the Historic District, not the Planning Board. Typically, the Planning Board would require any applicant under the major site plan review process to receive approval from the HDC.
     The Storm Water Management committee also reviewed and signed off on a plan for upgrading site storm drains connecting to the town storm water drainage system and adding ‘rain gardens’ at the rear and side of the building, thus increasing the area of permeable cover on the site and helping control the volume of water entering the town drainage system along Main Street. Again, review by the Storm Water Committee would be a customary item in a Planning Board’s ‘order of conditions’ in a major site plan review.
     Separately both Police Chief Luth and Fire Chief McCurdy reviewed the plan and requested changes to facilitate traffic flow and emergency vehicle access. This is an area where the Planning Board would have significant authority, but since both Police and Fire had reviewed the plan and the applicant had made requested changes, it seems that any Planning Board changes would be minimal.
     Attorney Collins argued that there was no requirement for the Board to take a vote of approval on the plan since a minor site plan review is considered an administrative process. Still, he said the Board could vote to approve the plan as he said they had done occasionally in the past. The applicant’s engineer appeared along with Attorney Collins, prepared to answer board
questions.
     The Board then considered whether to appeal the Land Use Committee and Building Inspector decision to approve the project under the minor site plan review regulations. Board members were asked to vote whether they wanted to appeal the decision to use the minor site plan review protocol. The vote led to a 2-2 draw, so no change appeared likely. Instead, the meeting was continued to the Board’s August 22 meeting.
     Unhappy with reviewing Kilbourn Place under the less restrictive protocol and without formal Board approval, Chairman Burke took it upon himself to re-read the bylaw, approach Attorney Collins and persuade the applicant to submit to the major site plan review process.
     At the August 22 meeting, Planning Board Chairman Burke said, “The applicant has been persuaded that an application should be submitted under major site plan review.”
     Burke said he did not like using of the minor site plan review protocols because, “I was troubled by that...in the past whenever
there was a change of use, a major site plan review was always triggered.”
     Burke said that when re-reading the zoning bylaw, he discovered that the preamble to the zoning references the change-of-use requirement. According to Burke, the trigger for a major site plan review is anything more than a thousand square feet. Some have disputed Burke’s interpretation of this clause in the bylaw.
     Knowledgeable observers have said the bylaw is ambiguous and could as easily be interpreted to allow a ‘minor review’ as a ‘major review’, especially given that the applicant had already received all the appropriate approvals from ZBA, HDC, Storm Water Committees, Police and Fire.
     After being convinced that the Kilbourn Place project required a major site Plan Review, Burke discussed his interpretation with Attorney Collins. According to Burke, Collins said that in this case, it would serve the public interest better to not bringing Kilbourn Place before the Planning Board as a major site plan review. Still Collins agreed to Burke’s request and submitted an application for a major site plan review.
     Knowledgeable observers said that forcing the applicant to pursue the more costly and time- consuming process seemed more a case of one upmanship than a true case of best review procedure since there was little practical difference between reviewing Kilbourn Place under the major or minor review process.
 
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