The most recent public hearing into the Duxbury Farms 40B project picked up where the last one three weeks earlier left off ñ a field of division between the applicant and the Zoning Board of Appeals.

While small strides were made last Tuesday night, there are still clear issues between the two sides that chairman for the hearing Tom McClure recognized during the proceedings that have now lasted 10 months.

“We are getting toward the end of this processÖ and at some point, we have to get past preserving our rights,” said McClure.  “I understand ëon the advice of counsel,’ but at some point, we have to have a two-way conversation.  At some point, we need to get away from the dogma and we are not there yet.  We are not remotely close.”

McClure’s comments were directed to development consultant Paul Cusson of Delphic Associates, who along with attorney Bob Shelmerdine have been representing Duxbury Farms Corporation and developer Michael Intoccia.  The Duxbury Farms projects seeks to place 66 condominium units 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” during negotiations, however.

Duxbury Farms is the fifth 40B project currently in front of the town, filed under the state’s “anti-snob” zoning act that allows developers to bypass most town zoning regulations.

It was waiving some of these regulations that generated a considerable amount of discussion between the two sides Tuesday night.  While the applicant previously sent the board a draft decision including nearly 20 requested waivers, it took umbrage with a report by the ZBA’s engineer, Thomas Sexton of Mainstream Engineering, that featured 20 pages of conditions the board should consider in its approval of the project.

“With all due respect, with a report of conditions 20 pages longÖif this decision is written like this, we’d have no choice but to file an appeal [with the state],” said Cusson, who added that the sheer number of conditions raised a “red flag” with him.

“I disagreeÖI think it is clear and precise,” said ZBA member Sally Wilson.  “Your way seems to be a decision with no conditions of approval and the draft decision we received can be called ëminimalist.’”

Cusson further said that he disagreed with the suggestion by Sexton that the applicant show the economic impact of each requested waiver, saying that some of the issues are “difficult to put numbers on.”

Another sticking point between the applicant and the board has been over whether or not the property for the proposed development contains vernal pools.  These are seasonal depressional wetlands that are often completely dry for part of the year, but covered by shallow water during other periods and potential homes to endangered species and species of concern.

Prior to the March 3 public hearing, Duxbury’s Conservation Administrator, Joe Grady, sent a memo to the ZBA citing concerns that such pools existed on the property and should be evaluated.  At that meeting, the ZBA requested Grady be allowed access to the site, at the displeasure of Cusson.

Since then, however, an invitation was extended to Grady but due to what Cusson deemed “scheduling conflicts” the inspection was not done before Tuesday’s hearing.

Cusson also said that the appliant’s  own engineer and environmental attorney reviewed the site and found three depressions, with only one near any potential development.  That one depression, said environmental attorney Matthew Watsky, is not a resource area under Department of Environmental Protections standards and not a vernal pool.  With this status, the depression did not need to be regulated.

ZBA member Elizabeth Lewis still said that the depression had to be looked at in terms of meeting the town’s bylaws.  Cusson again “respectfully” told the board that this was not within their jurisdiction, but instead that of the town’s conservation commission.

Both Sexton and ZBA member James Lampert pointed to the site eligibility letter from MassHousing that clearly states issues such as vernal pools, wetlands, septic and other issues should be discussed in depth during public hearings.

“One thing that troubles me is that the letter says [these issues] should be ëfully explored and addressed’ and I don’t think we’ve done that,” said Sexton.  “The letter says these should be part of the public hearing process, not the conditions of approval.”

Wilson added that there would be “less conditions with more information” from the applicant, to which Cusson stated that his client was done presenting information.

“With all due respect, we’ve given all the information you are going to get,” he said.  “We’ll have [Grady and his consultant] go outÖbut we’ve clearly given you information tonight that our expert says that this isn’t applicable to [state regulations].”

Joining in on the conversation regarding what should and shouldn’t be ironed out in the public hearing process was Jon Witten, attorney for the West Duxbury Neighbors Association, who stressed that the board needs this information before deciding what waivers to issue.

Later in the hearing, Witten raised other concerns he had, including what he called an “unacceptable” letter from MassHousing clarifying that Cusson and not Intoccia was the recipient of the site eligibility letter.  At the March 3 hearing, Witten said this was unclear and on Tuesday said that the clarification was no better because there was no supporting documentation from the applicant.

“This is a ënew ticket’ to Intoccia and not Cusson, which is a clear violationÖand the town and the ZBA should be outraged,” said Witten.  Cusson said he would provide supporting documentation to the board specifying his exact request of MassHousing.

Witten also repeated his client’s request that the board consider a 12-unit development that still gives Intoccia a profit, but clearly reduces density of the development.{sidebar id=4}

In wrapping up Tuesday’s meeting, Cusson told the ZBA that his client was done submitting information and that the public hearing should be closed.  He reminded the board that Duxbury has not produced 10 percent of affordable housing as the state mandates and yet again noted that Grady had not yet been on the property to investigate the vernal pools he was concerned about.

McClure took exception, saying,  “stopÖfrom what I’ve been able to ascertain, Joe [Grady] got this notice three days ago [to inspect the site] and for you to keep referring to it and now putting it in a memo makes me upset,” said McClure.  “So I take exception to this and find it highly offensive.”

Shelmerdine apologized for Cusson’s comments and asked them to be struck from the record, saying that both sides are working to resolve the vernal pool issue.

Citing a few more things needed from the applicant decided upon at that meeting as well as giving Witten and members of the public one more chance to comment on the proposal, the ZBA decided to continue the public hearing until Tuesday, April 27 at 7:30 p.m. at the Duxbury Senior Center.{sidebar id=1}

At that meeting, added McClure, he hoped that the two sides could nail down issues such as the vernal pools and the exact number of units the board is working with in order for them to close the hearings and make a decision on the project.