WILLIAMSTOWN, Mass. — The Planning Board on Tuesday voted not to grant the waivers needed to allow a request to accept Sweet Farm Road as a public way to go before town meeting in May.

 

Representatives of the Sweet Farm Road Home Owners Association brought the town the request to accept the 3,600-foot road built off Henderson Road to support an 18-lot subdivision.

 

Over the course of a public hearing that took more than 90 minutes, the planners granted eight waivers related to the design of the road and its associated infrastructure but denied three waivers related to the town's minimum road construction standards.

 

At the outset, Planning Board Chair Peter Beck explained that, per the bylaw, the HOA needed waivers from three different entities — the Planning Board, the Select Board and the director the Department of Public Works — to bring the question to town meeting, which ultimately decides whether to accept roads and the associated maintenance costs.

 

The board took testimony both from DPW Director Craig Clough and members of the HOA and their attorney, Stephen Pagnotta.

 

Clough told the board that road definitely does not meet the letter of the law in terms of the depth of its gravel bed, its bituminous concrete pavement thickness or the composition of its gravel as spelled out in the bylaw.

 

Pagnotta did not refute those points but argued that the board should exercise its latitude to grant waivers because accepting the road was in the public interest.

 

"I would strongly urge the board to make that finding," Pagnotta said. "I know we don't want to talk about policy, but the only point I would make is the residents of Sweet Farm Road have paid taxes as everyone else has paid taxes, and [everyone else gets] the benefit of being on a public road if they live on a public road, even if it's 150 years old and requires more maintenance and has more traffic than this road."

 

The age of Sweet Farm Road came up repeatedly throughout the hearing.

 

Unlike many subdivisions, which are built out within a few years and the roads conveyed to municipalities relatively quickly, the north Williamstown development received its last approval from the town in 2005. Due to the so-called "Great Recession" in 2008 and the collapse of the housing market, it took years longer than expected to bring the project to fruition, Pagnotta said.

 

Currently, there are 14 homes built on the subdivision's 18 lots, the applicant told the Planning Board on Tuesday.

 

Planner Samantha Page asked why the developer did not ask for acceptance of the road by the town until two decades after work began.

 

"Because there were so few houses built and so few tax dollars to support it becoming a public way, the sense the developers had at the time was that the request for acceptance would not be accepted," Pagnotta said. "The 14 houses are now completed, and we're requesting that now is the proper time for the road to be accepted by the town."

 

Board member Kenneth Kuttner said that assertion puzzled him because there is nothing in the bylaw indicating that tax revenue from a subdivision is a factor in accepting a privately-built road and the HOA provided no evidence that the town signaled in 2005 that taxable properties were a consideration in that decision.

 

"It may be an apocryphal story," Pagnotta said. "But my understanding is the developers somehow … "

 

"It's repeated in the [applicants] letter three times in bold, so I hope it's more than apocryphal," Kuttner said after Pagnotta's words trailed off.

 

"Part of the challenge is we're going back a long time ago," said Malcolm Smith of the Sweet Farm Road HOA. "Nobody is around that was really here. What we've been told by Berkshire Properties, who developed the property, the original developer is that … the town would not entertain acceptance of the road until more houses had been built."

 

The road's age of roughly 20 years coincides with the Road Construction Standards bylaw's language stating that, "Roads shall have a design period or minimum performance period of 20 years."

 

Clough told the board that he could not guess whether the road in question was built to the proper specifications two decades ago. All he can do now is say the road's current state does not meet the specifications intended to create a 20-year lifespan.

 

Pagnotta argued that the variances between Sweet Farm Road and the specs in the bylaw were "de minimis." He pointed to the results of test borings that show the average gravel depth is 11.5 inches where the bylaw calls for a 12-inch bed.

 

"The issue really is whether those deviations affect the safety of the road and, to some extent, the duration of the road," Pagnotta said. "The road has been there 20 years, and I don't think there's any evidence the deviations will affect the safety of the road or the suitability of the road as a roadway."

 

Clough countered.

 

"To say it was 9 inches here and 14 inches there, it averages out for the road — the performance of the 9-inch area is not going to be as good as the 14-inch area," Clough said. "Taking an average of these things, in my mind, doesn't make any sense. Our construction standards don't say, 'Take an average of.'

 

"If you have 2 inches of asphalt at the top and 6 inches at the bottom, do we take an average of 3? Three and a half? Two? Whatever the math is. I don't think that approach is appropriate to what our standards state."

 

A couple members of the board referred back to Clough's rationale on average depth versus minimum depth during the body's deliberation.

 

At some points, board members implied that to grant the waivers and, potentially, accept the 20-year old road now would be different than accepting a private road built recently to the standards that would produce a 20-year-old life expectancy.

 

In the end, the four members in attendance (Cory Campbell was absent) voted unanimously against granting any of the three road construction waivers.

 

Beck said the Select Board might still hold a separate public hearing to consider the waiver questions, but Tuesday's Planning Board votes essentially render that consideration moot because the applicant needed both elected bodies to grant waivers.

 

In other business on Tuesday, the Planning Board made a small change to the short-term rental bylaw it plans to send to town meeting in May.

 

After some confusion during a presentation to the Select Board on Monday over the use of the term "primary dwelling unit," the planners agreed to replace the word primary with "principal," a term used elsewhere in the zoning bylaw.

 

Although technically, the term primary dwelling unit merely refers to the main (and usually only) residence on a residential lot, as opposed to an accessory dwelling unit, the conversation on Monday night showed that "primary dwelling unit" could be confused with the property owner's "primary residence," which could potentially create an unintended loophole in the bylaw. The intent of the proposed bylaw is to prevent "absentee" owners buying up housing stock and converting it to, essentially, full-time short-term rentals.

 

The public hearing for the short-term rental bylaw and another bylaw proposal related to closed-loop geothermal systems is scheduled for April 8.

 

On March 11, the Planning Board will hold a public hearing for another bylaw proposal that might be heading to town meeting, a landowner petition to alter the special permit that allows the Sweetwood assisted-living facility on Cold Spring Road.

 

On Tuesday, Beck reported that the residents of the Sweetwood held a vote on whether they support or oppose the proposed zoning change.

 

"Of 50 residents, 36 votes were cast," Beck said. "Of those votes, 26 opposed the change and 10 were in favor of the change."

 

Beck and Lawrence also reported on a conversation they had with the Sweetwood Residents Council.

 

"I would say largely they felt in a similar position to how we've expressed it on the board: If this is a necessary [zoning] change to keep things going, then we're in favor of the change," Beck said. "If it's not necessary, it's detrimental to the long-term existence of a retirement community, defined as such.

 

"It all boils down to the unknowability of whether it's a necessary change or not."

 

The owner of Sweetwood is on record with the Planning Board saying that without a zoning change that allows conversion of units to multifamily housing (i.e., regular apartments), the assisted living business is not viable.