First presented last July, Duxbury Farms seeks to build 66 age-restricted condominium units at the intersections of Valley, Franklin and High streets under the state’s 40B “anti-snob” zoning act that allows developers to bypass most town zoning regulations.  For the last several months, the ZBA has been working with a 55-unit conceptual plan presented by the applicant, Michael Intoccia and Duxbury Farms Corporation.

Following a four-hour continued public hearing on Tuesday, the ZBA closed the hearing process, preventing further testimony from the applicant and others to begin deliberations among members on approval or denial of the application.

Normally, the board would have 40 days to make their decision, but the applicant’s attorney, Bob Shelmerdine, granted the group a 90-day window to craft their decision, which will address six pages of requested waivers and is expected to include a number of conditions if approved.

The ZBA began deliberations on the project during their administrative meeting on Monday.

Among the issues at Tuesday’s final public hearing was a lengthy discussion on whether or not the property contained state- or town-defined vernal pools.  These seasonal depressional wetlands are often completely dry for most of the summer and fall, but can be covered by shallow water during the spring and winter and home to “species of concern” or endangered species that live and thrive in the pools.

During two previous hearings in March, the ZBA and applicant discussed the presence of the pools in depth, often debating their existence and Tuesday’s testimony answered some questions but also unearthed others.

The board first heard from their own consultant, Norman Hayes of BSC Group.  Hayes said that first, the applicant’s wetlands certification had run out and that this area would have to be redefined by the town’s Conservation Commission.  Shelmerdine said that the certification was up-to-date when the project was first presented in July, but had run out in January of 2004.  He indicated that they did need to be re-done and said that the applicant plans to go before the commission at a later date and after both consultants review the land.

Hayes said he did find one area of the land that might be considered a vernal pool as one of his indicators was the presence of a green frog living in the water.  He said that in order to tell if that animal and others were using the area as a breeding ground, hence making it a vernal pool, analysis would have to be done in July or so.

The ZBA’s chairman for the meeting, Thomas McClure, asked Hayes what the worst case scenario would be for the applicant if this area turns out to be a vernal pool.  Hayes replied that since it would be a state- and town-defined resource area, plans for a stormwater basin nearby would have to be moved, meaning a redesign of plans.  Furthermore, because a 100-foot buffer zone would be needed, part of a road and nearly seven units would also potentially need to be moved.  The elimination of the road did cause some debate about having only one access point to the development between the applicant and the board.

Hayes also said a potential vernal pool exists in the middle of that proposed road, but that he and the applicant’s consultant would need to run tests on that area before defining it as a pool.

Before the applicant’s consultant spoke, Shelmerdine said that while Hayes presented “possibly what could beÖwe’ll present hard data.”

Jason Zimmer, a wildlife biologist with Coler and Colantonio, said he reviewed five wetland areas on the property and that the potential vernal pools indicated by Hayes could not be considered such areas by fully meeting either state or local guidelines.

“I’ve looked at nearly 40 potential vernal pools from New Hampshire to Cape Cod and found evidence,” he said.  “[Here], do these areas provide ëessential breeding’? No.”

Shelmerdine added that if evidence was there, it would have already presented itself, refuting Hayes’ desire to go back in two months for further evidence.

“[Conservation Agent Joe] Grady has been out there for a month, your consultant too and the town has a fair amount of information from March and April so I don’t feel we need to wait until July,” he said.  “You have pictures, lines, evidence and testimony.”

The board then allowed the public to speak, beginning with Jon Witten, attorney for the West Duxbury Neighborhood Association.  Witten said the group of residents is not opposed to the project, but contends as it has for months that 12 units and not the proposed 55 or 66 will result in a profit for Intoccia.

As he had done at previous hearings, Witten called into question the validity of the eligibility letter from MassHousing, the exact date Duxbury Farms Corporation assumed responsibility of the project and other details.

“Why can’t the applicant get this right and play fair?” asked Witten.  “I still say there is no valid site and no site control.”

Witten also contended that Intoccia’s group has not shown evidence that the waivers they have requested are necessary for the project.

“If they can’t prove [that the waivers are needed], they are asking the board to throw 50 years of regulations out the window,” he said.  “The applicant must demonstrate to the board they need these waivers.”

Witten asked that the hearing be continued until further proof of site control and Hayes’ assumptions on vernal pools can be clarified.  McClure said that he was conflicted about whether or not to continue the meeting for one more session, so he asked members of the public in the audience what the board should do.  He did, however, issue a caveat.

“It would be easy for us to say ëlet’s just deny it’Öuntil they take it to appeal and we are not longer looking at 12 or 55 units, but instead 66,” he said.  “This is one of the balancing factors the ZBA needs to look at.”

Several members of the audience expressed their concerns, ranging from how the town would police residents being of age 55 or older to live in the units to the still outstanding environmental issues.  Many wished that the meeting be continued one more session.

After a last minute plea by Witten to at least wait until the board’s own consultant, Hayes, could report back on vernal pools, the board felt that it could address any wetlands concerns in the conditions it ordered as part of an approval.