The proposed 66-unit complex being proposed by developer Michael Intoccia would be located at the intersections of Valley, Franklin and High streets for age restricted, elderly housing.  The ZBA is currently working with a 55-unit "conceptual plan" for the development during negotiations, however.

Duxbury Farms is one of five 40B projects before the town, all filed under the state’s "anti-snob" zoning act that allows developers to bypass most town zoning regulations.

The ZBA’s engineering consultant, Thomas Sexton of Mainstream Engineering, began the hearing not only outlining some of his lingering concerns, but also those of town officials.  Sexton discussed a February 26 meeting of the town’s Design Review Team (DRT) which raised a number of concerns including roadway safety, wetlands and stormwater and water supply and fire protection.

Members of the group felt that in addition to providing water service to six homes near the proposed development that have private wells, Intoccia should make the same offer to a few homes across from the development.  Paul Cusson of Delphic Associates, development consultant for the project, said that his client is already offering water service for six homes at no cost to them and that would be all who would receive such an offer.

Another popular issue of all the public meetings, including Wednesday’s, was the true definition of "elderly" housing and what that meant to septic flow for each unit.  Sexton noted that the definition of "elderly" being used by the applicant is for at least one resident of each unit being age 55 or older and with two-bedrooms would produce wastewater flow of 150 gallons per day per unit.  He added that this estimate is based upon two elderly residents, not just the one the applicant would require to live in the unit.

Sexton added that the Department of Environmental Protection is currently looking at the definition of "elderly" and will most likely change these wastewater requirements and said it was the opinion of a DEP employee he spoke with that the proposed units be age-restricted for all residents to assure that the housing functions as truly "elderly."

"We’re going to go with the regulations as they are today," said Cusson.  "We’ve submitted our own discussion with a DEP employee about the issue and we’ve made the decision to go with the regulations the way they are."

Chairman for the hearing, Thomas McClure, asked the applicant if he thought it was prudent to keep this potential regulation change in the back of his head, as it would affect their development, but Cusson reiterated that they would go with current standards.

Another issue that caused a tug-of-war between the applicant and the ZBA was over vernal pools, seasonal depressional wetlands that are often completely dry for most of the summer and fall, but covered by shallow water during periods of winter to spring.  The environment can also be a spot for "species of concern" or endangered species that live and get food and water from the pools.

In a March 1 memo to the ZBA, Conservation Administrator Joe Grady said that he had concerns of vernal pools on part of the property being proposed for the development and felt the land should be re-evaluated. 

Cusson said that the land had been certified as having no vernal pools three years ago and while that certification did expire this year, the applicant felt there were still none on the property.  If their proposal is approved, said Cusson, they would go before the Conservation Commission to address any concerns, but this was not the jurisdiction of the ZBA.

Several members of the board asked Cusson to allow Grady to walk the land to allay his concerns, but both Cusson and Intoccia’s attorney Bob Sheldmerdine flatly denied this request.  Cusson called the raising of the vernal pool issue a "stalling tactic" and that if anyone had a concern, it should’ve been addressed earlier.

McClure reasserted the board’s concern on this issue and said it would definitely be part of their deliberations regarding approval of the project and the applicant should "eliminate this doubt" from their minds.

"As we deliberate, if you want us to have this [lingering] doubt, roll the dice as you see fit, but I stress to you that this is a big concern of this board," he said.

Shelmerdine said he knew what advice he would give his client, but he would ask nonetheless.

Further debate came after attorney Jon Witten, who is representing the West Duxbury Neighborhood Association, spoke.  Witten had two issues regarding the night’s proceedings.  First, a boundary plan submitted by the applicant, he said, was essentially an Approval Not Required (ANR) plan of action that not only isn’t in the purview of the ZBA, but essentially meant the applicant was filing two projects on the same piece of land.  By state law, he said, the ZBA could deny the 40B and the decision could not be overturned by the Housing Appeals Court with the filing of the ANR plan.

"The applicant can’t have it both ways," said Witten.

Shelmerdine said that the plans were for information requested by the ZBA and his engineers put it on plans marked "draft" and did not sign it so if "this was an attempt to hide anything, we would not have submitted it."

Witten also questioned the role of Cusson in the project.  In the project eligibility letter granted for the project to go forward, MassHousing addressed the letter to Cusson and refers to "your project" with no mention of the true applicant, Intoccia.   Since Cusson is not the developer, Witten said he was unsure "why the board is wasting time on the project" that questioned who was the applicant and did not need to go forward.

"Mr. Cusson wants us to believe MassHousing made a mistake, but [Intoccia] does not have a ticket to move forward with this project and without a ticket, there’s no hearing," said Witten.

Cusson said that it is clear in all the paperwork submitted to MassHousing that it is Intoccia’s application, that it was Intoccia who was investigated as being an eligible builder and that he is clearly identified as the consultant who submitted the application on behalf of Intoccia’s Duxbury Farms Corporation.

After addressing some concern by board members, Cusson said he would work on getting a clarification from MassHousing, who he felt had caused the confusion.

With no issues truly being settled, McClure moved to continue the public hearing on the project until March 30 at 7:30 p.m.