Planning Board - Regular Meeting

All right, I'll call to order the town of Matt Dessert Planning Board meeting for November 18th, 2025. Is our camera on? Can we change the view around to make sure we can speaker? Oh, boy. Can you Is that how you want it? Yeah, maybe. Are we there? Can everybody see us? Let's make sure. All right. It's just a little tough when you can't see yourself. All right. Well,

hopefully we're all sitting up straight and uh here we go. So, I'll welcome everybody aboard. If you are online, please sign into chat. It just helps with the recording secretary getting everybody attended for um you know we've got so we've got people online we've got people here in the audience and I thought I'd just start with some procedural stuff first and um you know I think one of the the very first things we need to do is um well let's make introductions first. How about that? So I'm William Hanley. I'm chairman. We've got Tracy Loftess Keller as vice chair. We've got Ann Dalton here. We've got um our alternative member Daniel Burke as well, our other alternative member. Welcome back, Meredith. Um we've got Alan Kimmerly. And we've got town council Andy Hamilton. And I think um other regular member Gail Marshall is not with us tonight, but um I think the first item we need to take care of is to vote Meredith on as a um voting member tonight.

Like to make a motion to make Meredith have a voting member today. Second that. All right. All those in favor?

I welcome aboard, Meredith. So, so just to clarify, the voting members tonight are Allan, Meredith, myself, Tracy, and an um and then I want to say a huge thank you to Ann, Dan, and Allan where they've, you know, they agreed to come on board, familiarize themselves with this whole application, which I'm sure was plenty of bedtime reading. And so, thank you for that. And so, we have a full board voting tonight. And um an alternate if we need it. And then, um just I'll I'll get into reading the agenda and kind of why we're here tonight. But, um is there anything other procedurally, Mr. Hamilton, you think at this point I should touch upon?

Perhaps just for my clarity. Um Mr. Burke serves as an alternate. Um, you've you've got a five member board. We have a five member board, two alternate. And I want to say that is the first in 10 years on the over 10 years on the board that we have a completely full board. So any of you out there who have aspirations or are it itching to be on the planning board, I guess you're going to have to wait. So, so if for any reason we lose a member between the start of this proceeding and the end of this proceeding, which is hopefully tonight,

um, we may need Mr. Burke as an alternate, but until then, he's allowed to participate, but he's not a voting member. Okay, good. I just wanted to be clear. and and all of you guys have signed affidavits that you've you've read all the material and you're caught up for the benefit of council to the parties. Mr. Burns and Mr. Pagy. Um Miss Keen has in our possession the signed affidavits. If you need to see those or want to review those, those are available to you. Okay. All right.

All right. Well, let's soldier on here and bear with me as I read through the agenda. All right, call to order. So item two tonight we have uh review of the MD365 heelway subdivision on court ordered remand in Canon at alls versus townamount dessert and address the court's specific request that the planning board address the open space requirement for the subdivision and address calculations of open space requirements after hearing brief presentations by the council for the party's focus on a summary of evidence in the record. And let me first ask is um as far as a butters being notified and this one being advertised

in the blue folder and I'm gonna trace past that to trac the blue one. You have to ask basically that right and then I'll I'll ask as Tracy's looking for that if there's any conflict of interest on the board. I'm here. Okay. Not hearing any.

You should also ask council for the parties if they're aware of any conflict um and if they want to address that issue. Are the council for the parties aware of any conflict and need to address any issue? For the applicants, I'm not aware of any and I don't need to address Mr. Burnsy Grady Burns for Butters and Cannon, Mark Cannon, Melissa Canangi, Lamont Harris, Stuart Janney, uh Joseph Ryerson, and Lynn Wheat uh collectively uh the Butters who are parties to the appeal. Um no objection uh on regarding the membership.

Thank you. So Tracy um the Mount Desert Islander uh and uh shows a public notice of on November uh 6th and letter to a Butters dated October 27th 2025 and there's a whole slew of Butters that were notified. So, okay, three pages worth. That's a whole lot of people. Should be two notice of paper here in one two two separate newspaper ones. So, which newspapers? It just says Mount Desert Islander on this piece of paper.

What was the other notice? What was the other notice? Said there were two Here, here it is. Sorry. Uh, October 30th, 2025. Hey, could could we just for the record ask the code officer for purposes of method and notification um by distance or measurement? How which did you notify? I notified the abutments within the thousand foot radius and you got them all. Yes. Okay. I offer to the council for the parties if anybody has any question. That's why there's so many in there or concern as to notification.

Andy, I'll I guess give you the table and if you'd like to kick things off with just kind of a summary where we're at and what um what we're looking at tonight.

Sure. So um Attorney Burns, I provided to Attorney Paley. Um, so I'm going to represent to you what I provided to the board, just the very summary materials to just frame tonight's meeting. Um, tab one in an index is a list of prior meetings and submissions. Um, it provides essentially for the meeting list of March 8th through the 13th of uh, 2023. I won't cause you to recall every one of those meetings, Attorney Burns. Um, tab two is the uh decision of the planning board, but I've only only included in the board's packet um the cover page on pages 26, page 27, page 28. I'm not sure how much you uh as well as page 34. I'm not sure how much utility you'll find your prior decision to be because on open space the court disagreed with the board as to its interpretation that there was no open space requirement and as the chair identified the narrow issue for you tonight is to apply the open space requirement and to do the calculations under section 516. Um tab three is um four pages of the law court opinion starting with section E of its opinion open space requirements and running four pages. You'll you'll see at the bottom of page 18 it's so numbered paragraph 29 of the law court's decision. Hence we must remand for the planning board to make the calculation which may very well result in a finding that no open space is requirement. uh entry is judgment vac or remand of the business and consumer dock dock it with instructions to vacate the planning board's decision and remand the matter to the planning board for further consideration consistent with this opinion. Um if anybody needs the pages of the law court opinion and just

those pages that relate to space you have those.

Finally tab four before we get to the submittals of the parties includes section 5.10 10 which has not been cited by either the law court in its remand nor by the parties in their submitts as well as 5.16.2. Um tab five is attorney Pelgi's submitt. Tab six is the 10page heelway subdivision application summary. There are a couple of pages of that summary including page nine that deal with the open space um submitt of the applicant. Tab seven is a landscaping plan, but more importantly, tab eight is um attorney Vern's November 10, 2025 submission. I as as I earlier suggested to the board, I would suggest that you focus on page three of Attorney Burn's letter. I believe it's page three of Attorney Fle's letter. That's not to exclude all the other important pages of their letter, but when they really focus, they each focus on page three of their submittals. That's all I have, Mr. Chairman. So, so just to give kind of a high altitude summary of why we're here tonight and the the directive of the remand is the the court essentially said that um that cluster subdivisions and workforce subdivisions are not mutually accept um exclusive of each other. They're essentially in the same family and therefore the the open space requirement is required. So, we've got some math to do tonight, but we're going to hear from from um the parties here tonight first. Uh we will discuss if we're taking public comment on on this tonight. And if we do, it would have to

be extremely focused public comment on this very specific matter that's being remanded to us. And um with that I turn it over to Mr. Paley. I think let me just ask the parties just before um Attorney Pelgy starts. I assume attorney Burns that it's your view that the applicant has the burden and so should go first and then you'll be responsive. Is that correct? Uh correct. And and certainly if the applicant has any final comments because they do bear the burden, uh we would not object to that as well.

Okay. And then the second question I have for both council is do either of you want rebuttal or sir rebuttal. I don't see the need for it but I just wanted to check in with you. You were asking me in advance if I want to reply. You can res you can you can reserve. That's fine. I just wanted to know what your view was going on. I don't plan to talk very much tonight. Um, and I would hope that I don't have anything else to say, but I'd just reserve a brief few moments if I could if necessary. Okay. Attorney Burns, your thoughts?

Uh, certain no objection to Attorney Pelgi having an opportunity to uh respond to anything that uh that I have to say. Certainly. Um, as as you know, um, his his client, the applicant, bears the burden here. Um, so an opportunity to respond I think would be appropriate. Okay, we'll deal with ser rebuttal if it arises, but there won't be anything beyond serve rebuttal. Um, we'll leave it there. Back to you, Mr. Hanley. I think it's time to start us off. I'm going to hand it off to Mr. Plegy then. Thank you. Does the board have a preference if I stand or sit? I don't want to hover over you, but I also don't want to be disrespectful. You're fine with me. Yeah, just project.

I will project. I promise.

Um, so just as a reminder, um, and for the new people, thank you very much for reviewing all of this stuff. We all appreciate your diligence in doing that. Welcome back. Thank you for, um, joining the board again. Um, this is a six unit single lot workforce subdivision. Following your extraordinarily lengthy decision, I think was 41 pages, approving the application, law court sent back to you to show your work on subdivision ordinance section 51623. You might recall you already imposed some open space requirements on us under section 5.10. Um, in doing so, I would submit to you that the law court was pretty transparent in its findings and its expectations. And I just wanted to quote a couple or summarize a couple of passages. On pages 17 and 18 of their decision, paragraph se 27, the court indicated that we're arguing that applying to our development a calculation that excludes the density bonus units workforce subdivision uh results in a requirement of no open space. In paragraph 28, the court said, "We find the profer computation eminently plausible." Um, in Lewig, right, the writer's tool, eminently plausible, it defines as highly believable or credible. Miriam Webster defines eminently as very and plausible, as worthy of belief. I'd respectfully submit that's a meaningful statement from the state supreme court justice. The court went on and said we must remain for the planning board to make

the calculation which may very well result in a finding that no open space is required. So when reviewing a subdivision application planning board must apply the plain language of ordinance provisions. doing. So, here's a pretty straightforward calculation. I would refer you to your previous findings um where you referred to this section 51623. you said that the standard doesn't apply, but you referred to the applicant's July 14, 2024 um supplemental submission and some um articles in the condominium declaration that um July 14, 2024 submission was on page 8 an open space plan that was provided to the board in 2024. That plan showed a passive outdoor living space excluding rights of way buildings, parking lots and imperous uh surfaces of 20,900 square ft. That is essentially twice the calculation that the neighbors say is required for open space. Regardless, section 5.16.2.3 says that the total area for dedicated for open space has to equal or exceed the sum of the area by which the building lots are reduced below the zoning district's minimum lot size under um open space requirements for

workforce subdivisions. The section 51623 says that you must exclude density bonus units, not exclude square footage of open space that you calculate for units, not any other calculation. It says exclude the units. They don't exist for purposes of open space calculations. In the VR1 district where this property sits, there is a 10,000 square foot minimum lot area requirement for um uh properties hooked to sewer. There's a reference to um Luzo section 36A and B in your subdivision ordinance, none of which exists. The standards are set forth in section 3.5. That minimum lot area with sewer is 10,000 square feet for workforce subdivisions. That lot area is the state minimum. Maine does not impose a minimum lot area for workforce subdivisions. Maine has a, in other words, there is zero open space requirements under Maine law for workforce subdivisions. When you apply, even if even if we go to the standard workforce or the standard area lot area calculation, there's 10,000 ft per unit. We exclude the three bonus units. But you have three nonbonus units on the lot. Each requires 10,000 feet. So you'd need 30,000 square feet to have standard lot area coverage for the three nonvolous humans. We have

over that we have almost 31,000 ft. 30,94 I think it is. I showed you the math and the written submission. The plain language of the ordinance where you exclude density bonus units from o open space calculations means you're basically multiplying three times the required minimum lot area. And if we meet it then there is no open space requirement because open space is measured by how much those non bonus units are going to reduce the uh the lot area below the minimum that's required by the ordinance. Again, the neighbors suggest that you do some complicated calculations where you first include line areas for all six of our units and then you somehow subtract some square footage calculation from that original math. That's not what the ordinance says. Um the formula is pretty clear. The formula and its difference for workforce subdivisions compared to other cluster subdivisions is clear. The law ordinance opinion noted that there is a distinct difference between those and when you apply the workforce calculations excluding density bonus units, the math is pretty straightforward. As I said, however, even if you agree somehow with the neighbors calculations, which the November submission submitted for the first time, it's first time we saw an open space calculation that they say is required. And I believe that the number was 10, 500 10,398 ft, Mr. Bernard of open space. As we showed you back in July of 2024, we have

20,900 square ft of passive open outdoor area that is dedicated for the common use of our residents. And that meets all of the requirements. Even if you were to apply a square footage um uh open space requirement under se under this section, I don't think you can, but even if you were to do so, it's double the amount that the neighbors say is necessary. Any way that you do these calculations, we meet the standard, and I'd urge you to uh adopt findings that say that and to approve the um application once and for all. Thank you. And if you have questions, I'd be happy to try and answer them. Nol Musen, Greg Johnson, and Kathy Miller are all here. If you have factual questions about the um submissions and the evidence, they'd be happy to u help out as well.

Great. Thank you. Before you go to Mr. Burns, um you got an offer from council which I suspect Mr. Burns will extend as well and that is if the board members have questions you can ask. You can also hold your questions if you want. It's up to you. Why don't we hear from Mr. Burns and then think about questions? Mr. Burns, you're all right. Uh, Chair Hanley, can you hear me? I can and I believe everybody everybody in the room can hear you.

Excellent. Uh thank you for uh allowing me to appear via Zoom. Um I would be with you today. Uh my daughter was born on Saturday and this is my last meeting standing between me and my parental leave. Uh so I too uh hope that this will be a relatively brief meeting. Um and hopefully one where uh the board can come to uh a determination today. Interrupt Mr. Burns and say congratulations.

Thank you. Thank you. Um but uh down to business. Uh this is this is an important issue um and one obviously that the town has been working through now for uh just about two years. Um as attorney PGI uh stated and as you Mr. Chair uh you know talked through and summarizing why we are here today. Um the board made its original decision uh back in the fall of 2023. um that decision uh and you know as was noted at the time uh the the abutters uh that I represent had a number of concerns related to the project including the calculation of open space um so uh the matter was appealed um eventually it reached the law court um and the law court uh remanded back to you uh to apply the standards of section 5.16.2.3 2.3 to this application. Uh which is something that uh the board did not do in the first goound. Attorney Py notes that the court in a couple of places um you know indicates that it it's entirely possible uh that upon remand the board could determine that there there is no requirement under this uh there there is uh no open space needed under this standard. But the court said correctly that it is up to this board in the first instance to apply the words of your ordinance to the facts of this application and decide what they mean. Um and the court uh did not say what how this uh provision should be interpreted. They correctly said that it is up to you uh to do the job of of the planning board uh to to make that determination. Now, um you'll see in my submission, um and as attorney Hamilton indicated, I think the the meat of uh the calculation

that that we believe is required here um begins on page three. But I would begin a little bit earlier than that by simply noting uh as as we noted in the first goaround here, the first stated goal um of these cluster and workforce housing subdivisions is the preservation uh the permanent protection of open space and recreational areas under uh the applicable version of the subdivision ordinance. Um, I think it's it's worth keeping in mind that the calculation that attorney Pelgi and the applicant put forward um, essentially read the open space requirement out of the ordinance. Their position here is that even if you have to apply 5.16 uh.2, the answer is is zero. Um the one of the first rules of ordinance interpretation is that u the board should try to avoid results that create illogical or absurd results here. U I would I would submit to you that the way that you are being asked to interpret this provision uh by the applicant would effectively read that standard out of the ordinance even if you were to apply it here today. Um, I would I would challenge the the applicants to provide the board with with an example of under their interpretation when it would ever be appropriate to impose an open space requirement uh for a workforce housing subdivision under this standard. Um, I I think the the answer uh here is is that uh certainly the way they're interpreting it as to this project, it it simply doesn't make sense. um you know it doesn't pass the straight face test that the answer here would be zero when an open space provision is clearly laid out in your ordinance and clearly required for a workforce housing subdivision. Um but as attorney said really where you

have to begin is the plain language of your ordinance. Um and applying that plain language is uh your job here tonight. Um, as has been said repeatedly, it's the applicant here who bears the burden to demonstrate that they meet the standards of this ordinance. If you determine that they cannot do so, the result here would be that you would have to deny the application. So, getting to the text of this standard, um, we're talking about 516.2.3, 2.3 which comes right after the calculation of the density bonus uh applicable to workforce housing subdivisions. Um sec uh page three of my submitt states that the relevant paragraph in full here under 5.16.2 to uh three. It says the total area dedicated for open space must equal or exceed the sum of the area by which the building lots have reduced below the minimum lot size otherwise required for the respective zone i.e. the non-cluster subdivision minimum lot size. Open space requirement for workforce housing. When calculating the open space requirement for qualified workforce housing development, the density bonus units shall be excluded. Now, attorney Pelgi arrives at zero here because he's asking you to essentially read this backwards to completely exclude the workforce housing development uh units and pretend that they do not exist at any point in this calculation. But the ordinance of the the the language of the ordinance tells you you need to do some things before you exclude these units. As I lay out in my memo, the first sentence here, the first directive that the ordinance gives you is that the

total area for open space must equal or exceed the sum of the area by which the building lots are reduced below the minimum lot size otherwise required for the respective zone. Now, the facts here in terms of the dimensions of the property are already in the record and they're not really being disputed here, right? So, if if we assume a lot size of 39,24 ft, which is uh what was included in the original decision that was upheld by the court, um the parties agree that the applicable minimum lot size here is 10,000 square feet and that six units are proposed. So what this provision is saying is that the total area dedicated for open space must equal or exceed the sum of the area that that lot is reduced below the minimum lot size otherwise required for the zone. The zone requires 10,000 square ft per unit. Six units are being proposed. In a normal scenario here, that would require a minimum lot size of 60,000 square feet for six units to be placed on this property on this lot. Even if you assume that this is a single lot, which again, the court has told us yes, it should be treated as a single lot. So, in the normal state of affairs, you would need 60,000 square feet in order to place those six units on the property. The actual square footage of the property is 39,204 square ft. That is 20,796 ft less than 60,000. Another way of saying that is that the 10,000

square feet required for any unit on this lot is being reduced by an amount that it's by a sum of 20,796 square ft. You divide that among the units and that gets you to 6,534 square feet per unit. That number is the amount that the lot size is being effectively reduced. The minimum lot size is effectively being reduced by placing that many units on the property. You multiply 6534 by 6 and you arrive at uh that 20,796 square ft number. That's just the difference between the minimum lot size applied to the number of lots and the actual lot size of the property. That would be the normal calculation under this section. So here if this were a cluster subdivision for example, I think the answer here for how much open space would be required would be that difference between the between the required minimum lot size and the actual lot size that's being uh proposed for this number of units. However, you have a density bonus for affordable housing units under your ordinance. That is where the second sentence of this section comes in. It tells you that when calculating this open space requirement, the density bonus units shall be excluded. The the only sensible way to interpret that language is that you are removing

that sum difference that those three units would have that that delta between the minimum lot size and the actual lot size. You need to remove those values for those three units from that calculation. Essentially, you're cutting the open space requirement in half as part of that bonus that you are giving for the affordable housing development. So, when you take those three units out of the equation, that gives you that 10,398 square ft number. That is 3466 ft * 3 gives you 10,398 square ft. That is applying every word of that section and it's doing it in a rational way that does not read this section out of the ordinance. Again, if the answer here that you're being provided with from the applicant is that, well, yeah, the section applies, but you really don't apply it, I think the the board should do uh should take a closer look at that language and determine whether or not that was actually the intent of this ordinance to arrive at a a place where there is on its face an open space requirement, but nevertheless, no open space is required. ired. Um the board can avoid that illogical result by adopting the calculations that that we have provided. It it results in a a reasonable uh and rational uh interpretation of your own ordinance. Um and one that I think makes intuitive sense in terms of how much space uh

should be dedicated here given the scope and scale of the project. Now, attorney Pelgi uh I think argues in the alternative that even if you were to apply uh this uh this calculation put forward to you that 10,398 ft is required. Uh he has made the the alternative argument that well they would meet that standard anyway because there's 10 there's about 20,000 square feet of unbuilt space on this property. I would I would say two things to that. one, your ordinance is specific as to what open space can be and how it needs to be dedicated. Uh the open space is space that is intended to be used for low inensity recreation, subsurface wastewater disposal, agriculture or other passive outdoor living purposes and for preserving the natural features of the site. that open space cannot include rights of ways, parking areas, tennis courts, swimming pools, or other areas of imperous surface uh or similar recreational development. So, we're not talking about just any unbuilt space on the property. We're talking about space that is designed to be exactly what it sounds like, open space for the common use of the occupants of the property. uh so that number that's being put to you uh I think first if you determine that this calculation is correct and that this amount of open space is required the next question is has the applicant actually set aside that amount of open space that meets those standards under your ordinance. The applicant has set aside exactly no open space that is dedicated by a protected legal instrument that is required under your

ordinance. Now, your prior decision uh under uh section 5.10 did require the applicant to set aside uh I believe 1,600 square feet of open space um as part of as a condition of your prior approval. But under 516, that open space more is required than simply the applicant saying, "Well, yeah, we have we have space that's unbuilt on the property." that the applicant is required under the ordinance to demonstrate that that space is being legally set aside, legally protected by an instrument that is acceptable to this board and that sets aside this space for the common benefit of the members of this future subdivision. Um, and I would submit to you that they haven't done that. So if the answer here is that any amount of open space is required under this ordinance, the board needs to determine that whether the applicant has actually designated and protected that amount of open space as part of their application. They have the burden here. They need to show you that they are meeting these standards. Um and that is something that I think they they have not addressed in their submissions to you here. um and something that they would need to address uh if this application was going to be approved. It's entirely possible that at the other end of that work, the applicant can come to you and say, "Yeah, we have 10,000 square feet that meets the standards under the under the ordinance and that is legally protected um and set aside. Here's the instrument that we will be using to do that. Um and we meet this standard." They haven't done that. And in the absence of doing that, I think you have to deny the

application on this basis. This standard the court has said is applicable here. Some amount of open space needs to be set aside under this standard. I think the calculation that we have provided here is the the calculation that is required under your ordinance. But in any event, even if the board determines that some other number is required, the result would be the same because the applicant here has not adequately set aside any open space that would meet the standard under 5.16.2.3. Um, so again, I'm I'm happy to answer any questions that the board has uh about the calculation. Um, I would thank the board especially for the members who had to familiarize yourselves with this record as someone who uh has has sat in on all of these planning board meetings. I understand how big of a task that was. Um, so thank you for the time that you have already committed to this project. It's very important to not just the applicant but the members of this community, the neighbors that I represent. Um, there, you know, there there's a lot of concerns about this project. So, I thank you for the work that you have already done and the work that you still are going to do. Um, and again, I'm happy to answer any questions that you have.

Thank you, Mr. Burns. Andy, procedurally from here, we would go back to Dan and then go back to Mr. Burns and then continue on. Yep. I think the board should have questions of both attorney Polygy and attorney Burns and I'll have some questions as well, but I'll defer to you, Mr. Chairman. Um, Cadence and approach.

So, based on that procedure we discussed at the beginning of the hearing, I'm going to turn it back over to Dan and then hear from Mr. burns and then then let's let's talk. How's that sound? Yeah, I I think frankly the positions of the parties are made clear in their written submittals and tonight in their old presentations.

If either attorney feels the need to be responsive to the oral presentations, that's fine. But I think it's as both attorney Peli and attorney Burns have said, it's for the board to stick handle through these questions related strictly to 15 point 5.16 um 32. Yeah. So Dan, you've got your hand off if I saw that correctly.

Mr. Chair, back in your original bindings, original decision um when you talked about open space, you noted you made reference to condominium declaration articles 4, 7, and 8 and talking about passive outdoor living space of 20,900 ft, 53% of the lot. That's in your findings. A condominium declaration is a required to be a recorded instrument in the registry of deeds and we have given you the condominium declaration for this development that identifies the 20,900 square ft as common elements. They are not owned by any unit owner. They are um uh in large part uh landscaping uh open space for passive recreation. The condominium declaration includes requirements for common upkeep maintenance. It puts a it creates a condominium association that is charged with responsibility for upkeep and maintenance and the financial responsibility for that upkeep and maintenance is distributed among the unit owners. That respectfully is a recorded instrument that preserves the development, the passive space, the units. We can't alter that without um an approve approval from you um or another rec and and another recorded um uh condominium plan, an amendment to the uh to the plan. So, we'd need a new amended subdivision and we would need an amended condominium declaration in order to um to change what is protected. And if you

go through the reasons for open space that are listed in your ordinance, they're all those same reasons the passive recreation um uh types of uses that we are proposing for the area. So if you were to place some if you were to do math that imposed a square footage of open space requirements upon us, we meet it and it's and it's protected respectfully. However, there is no way to read the ordinance to do the math that Mr. Burns is asking you to do because it's not what it says. The ordinance is very simple and it says to ignore the um um workforce density bonus units. It doesn't say do math, calculate something and then do a discount prated discount of square feet based on what you found were density bonus units. If your ordinance had intended that, it would have said it. It doesn't. Eminently plausible means something. Coming from the law court, it means more. Thank you. All right, Mr. Burns. Any comment there? Uh, apart from thanking the board for its uh consideration, not much. Um, I'll I'll note uh simply that the uh the language that attorney Pelgi uh continues to reference from the law court decision is is what lawyers call dicta. It is something that has no legal uh it is not something that legally binds this board and the upshot of the court's decision is to do exactly what this board is doing right now which is to apply the language of the ordinance to the facts of this case. Uh in terms of the

amount of the preserved open space that is available on the site, again uh I would strongly encourage the board to inquire carefully about the character of that air of that uh that square footage, that area that attorney and the applicant are discussing, that reserved area of open space. The area that has to be reserved under that uh the applicable ordinance provision here needs to be dedicated to certain uses and cannot include imperous surface. So again, I would encourage the board um to not simply take that uh that amount that is being stated by the applicant as gospel. I think more is required here in terms of the character of that open space um and that square footage that's being set aside. It must be exclusive of any impervious surface, any parking area um and the other specific criteria that are included in those later uh subsections within 5.16.2. Um but with that um again happy to answer any questions that the board has. Um and uh I wish you good luck in this last leg of your analysis of this application.

So here we are. So you you might ask questions of the applicants council as to page eight of the July 14 submission because uh one prong of his argument relies upon an article of evidence that you already have in your record but you may want to dig out and look at it. So, I heard him say page eight of the July 14th supplemental uh submitted. Um I I don't have that at hand, but I'm sure either the code officer or the applicant does. So,

it's right in front of them. Right here, if you want a copy of it, that would be good. Thanks. So you're referring to as open space is the green dotted area. Yeah, it was this was called the open space plan in that July 14th submission. There's another one if you want says open space. Yeah, it' be good to hand that down. Okay.

And it does not include the impervious surfaces, the buildings, the roads, nor the right of way that others own. So to toggle to um Attorney Burns just for a moment. Um I've been looking at section 5.1611. If if you have a wholesome copy of the subdivision ordinance board members, may be good to look at your entire subdivision ordinance provision. But um I want to know from attorney Burns where he derived his definitions, uses, purposes of open space that he articulated in multiple parts in his presentation. take us to the ordinance provision that sets up for

Andy before we get into the what I'm trying to do is provide griffs that may be helpful to the board in deliberations and I don't want to close the presentations of the parties and 16.3

right here 19-23 that that says the the purposes for which it may be used it doesn't say that that's open space. Um my question of attorney Burns is

um takes it back to um 5.16.1 I think. Um and he's he's actually acknowledged it in his submitt. It's for permanently protected open space and recreational areas. So, what I'm trying to to get at is if the argument is we're not providing open space. Um, I I've heard the applicant respond to that, but I wanted to hear his thoughts on open space where where it comes from.

So, two things. the the the purpose statements uh relating to the purpose of the uh cluster housing and workforce subdivision standards um in general is five uh that's uh section 15 uh excuse me 5.16.1 is states out the purposes of the ordinance uh or of that ordinance section and that's where the the stated goal uh to uh per uh create housing that will result that will result in permanently protected open space and recreational areas. Um is but what what I'm referring to substantively are the there are a set of open space standards that follow the uh the paragraph in 5.16.2.3. Uh so I believe it is the following subparagraph in 5.16.2 2 that talks about uh the requirements for open space um that is dedicated under 5.16.2 and that's where it sets out that that open space cannot include um imperous surface. Um it uh it must be um allocated for um you know recreational preservational purposes. uh that language is contained I think immediately following the calculation language in 5.16.2.

Yep, I see that. And then one other question uh for attorney Burns before I go back to attorney paley just just trying to understand their positions. Um, when you look at 516 um 23, you're both looking at 23A, which says what it says. You both quoted in your materials. Um, if if the job of any board or court constring ordinance language is to read it as a whole, how do you respond to this question, Attorney Burns? It says, "Open space requirement for workforce housing. When calculating the open space requirement for qualified workforce housing development, the density bonus unit shall be excluded." It seems to me that clause is directing the board to do a calculation that already excludes the density bonus units. You seem to start at an earlier point which takes it outside of workforce housing in that provision 3A. I just want to understand how do you respond to um the rule of construction that you read it as a whole and when you do in the context of workforce housing you start with calculating the open space requirement by excluding the density bonus units. You don't start by including them you exclude them.

I I I would say two things to that attorney Hamilton. the the first being and without being too flip here um your your read of that ordinance is not what matters here it's the board's reading um and I think you know it's it's their interpretation that is going to have to carry the day here um that said

uh that said um the ordinance must be read as a whole but it also must be read as it reads uh the sentence that excludes the density bonus units from the calculation is the second sentence in that paragraph. It does not say at the outset that before you begin any of these calculations exclude all of these uh these bonus units. It sets out a calculation for dedicated open space and then says when you're calculating when you undertaking that calculation described in the previous sentence the density units should be excluded from that calculation. It's not saying that you exclude the units uh you know in in toto right or you know exclude them from uh you know you you don't pretend that they don't exist you exclude the those units from that specific calculation that is happening above right so again

there is an amount go ahead I understand your position so if if you will attorney Attorney Burns, back to attorney Paley. What about his construction of the same provision that the lock work quoted and you guys are quoting in your materials? What do you say to attorney Burn's argument just now in terms of how you construe that paragraph a attorney ple because this is where this is where the difference is in your positions. He he starts with the prior calculation. You start with that calculation. Just want to understand how you construe subsection A under open space requirements 3A.

The applicant reads the plain language of that section to mean that when you begin the calculations when you do any calculations relating to open space requirements for qualified workforce housing development, the density bon bonus units shall be excluded because that's the plain language. for the board. That's the difference in views.

Yep. Got it. Um, so we've got plenty to discuss here, but one of the one of the first items I wanted to gauge the board's temperature on is public comment. Yeah, like we would be at a point if we were to open it for public comment and that public comment being extremely focused and the issue at hand um only maybe we should consider doing that now.

Sounds good. Yep. I make a motion to have public comment. Have a second. All right. All All those in favor? I All right. I'm going to open it up for public comment on very focus laser focused public comment. Please state your name for the record. And

Jerry Summit speak um by background I I having worked with part of the audience that you're probably uh but I provided you materials before on that gave examples on how we were uh presenting subdivision subdivision only. see the cluster subdivision with or without workforce. I refer you to note K in the Luzo subdivision dimensional requirements. It says that the you know the the reduced lot sizes are only for cluster for workforce housing developed in a cluster subdivision. They're married right there in K. We can put them in at the same time. There's no such thing as a workhorse subvision that isn't a cluster because we took what we did is we rewrote the cluster subvision which was plan use development and we rewrote it for open space and we added it and what what missed me here is that we intended to provide the planning board a toolkit. The tool kit was meant to address, embrace, and reconcile the nimi factor out front. It was in your backyard but care. So we can buff open space cluster subdivision with with you know permanently protected open space. And we said if you can do it with a tight cluster, you can have more for the uh and provide some more house. We did not write it for uh for land trust. We wrote it for developer. The

intention here was to lower the land value, the site value for the individual lots. What is really mind-boggling is that embracing this, it's a tight lot to do the cluster subdivision because it doesn't have a lot of lot of acreage. We we quite frankly started a lot with the typical project was you know 28 acres in in in two acres zoning 14 acre 14 acre subdivision. We said well you can save the back half for open space and and cluster on the front. Uh but what's really frustrating is is that when we put in the why would we put in the open space one of the requirements permanently protected but also when possible to to have it toward towards the public side of the developer. Um, so I mean you could have on this property you you could have sold the house at open market, protected the corner with open space and subsidized lower the land value for you know for some housing impact. And it's frustrating you did not embrace the toolkit because we wouldn't be here tonight. And it's possible that we already would have had uh families in these houses that that would already have kids that going into grandma school or nursery school. Uh but you know, you you kind of you accepted the the interpretation. I heard no say they were two separate things from the get-go. They weren't. They never were. There were always cluster to subdivision. We said if we're going to do clustered subdivision, we're gonna we can do it. We add we can add some workforce housing. The court has

some issues with workforce housing and and open space are two two conflicting goals. They're not. We took the results the comprehensive plan that had two overwhelming responses. protect open space and workforce houses and we said being in the town of Missouri we can chew gum and walk at the same time. We can do both. Ironically here, I believe Andy, it was you at the hearing this that wanted us to pass a resolution um that combining these two marrying the two concepts together. And I it's a long time ago, but Andy, I think it was you that said, you know, you need to draft a resolution to combine these two to go these together. We did wrote the ordinance and here we are. But I refer if you don't if you don't haven't digested the materials I already sent you. All you need to do is look at note K in the subdivision in the lo it very clearly Mary's cluster and the density bonus is only allowed in a cluster subdivision.

Well, that's not what the court was saying. That's what your lo says. put in adopted at the same time subdivision ordinance to do the subdivision plus open space cluster subdivision with or without workforce housing we needed to adjust the dimensional table no okay only the cluster subdivision so just to provide a little bit of direction to the board in response to Mr. Mr. Summons v's good thoughts page 17 of the law court decision you have weird

tab three let me just finish Mr. someone speak. Um that that discussion by the court says the following. When we apply these principles to reading the text of section 5.1623, which is the section that is the subject of the remand, the land use ordinance provision is not before the board uh because it's not part of the remand. We're focused on the remand. U two points emerge. There's an open space requirement for workforce housing subdivisions. And two, that requirement differs from the requirement for cluster housing subdivisions. Um, I don't want to dispute anything that Mr. Summonsby has said, although I don't agree with it all, but that's that's not my purpose. My purpose is to just ask the board to stay focused within the four corners of the remand. And the court has said the open space requirement for workforce housing is is a different requirement than for cluster housing subdivisions. That's on the top of page 17 at paragraph 26 of the law court's decision. And I don't remember the resolution advice, but it may be that I did.

But is the board not I'm listening to Andy, but is the board I mean I thought we were a small town. of that the board, you know, hears it out, makes a makes a common sense decisions. That's what we try to do with the zoning board of appeals. When something gets hit with you guys is, you know, we listen to the we go back and look, say, did we did we digest all the facts and you know, did we miss something? In this case, I think you missed the whole intent of having this ordinance. Yes, you can look at what the court does or you know once again if we'd embraced it from the first time we wouldn't be here. All right. Thank you. All right. I'm going to keep going with the public comment. Any other Anybody else got anything to convey to the board here in the record? Not anybody out there in Zoom land. Can we change or try to change the view again, Kim? Because I'm only seeing like three people on the board. Like

gallery. That's you want. The speaker is going to go directly to what he's talking. Yeah. Can you click on just out of curiosity multi- speakeraker? I think most people have their videos turned off. Okay. Okay. Um, pretty quiet in here. Awaiting your decision.

Yes, of course. Um, so I think the current decision is to uh close public comment. So going once, twice. All right, public comments closed. Let's continue with the board's discussion on this matter. And I think again I'm going to circle back to one of my initial statements is I think we've got some math to do here and determining the calculation of that math I think is ask number one. Can

I just add that? Mhm. I think this board needs a precedent and it needs to be set tonight with good solid math because this is going to come up again and I tried to find if there was precedent people in Ripple subdivision didn't see the calculation. So

actually to address that Ian um the town is in the process of doing a wholesale amendment of its subdivision ordinance as you know and so this president might be tonight but I I do think your point is well taken the chairman's point is well taken and that is I think it's it is a two-step process. is you've got to figure out what formulation accords with the plain text of your ordinance and then apply that formulation to derive the calculation. That's really where the debate is between the two parties.

You can see it clearly on page three of tab five and page three of tab 8. And that's where I'd start because if you can come to consensus as a board as to which way you apply 5.1623 then that's the first part. Then the question is once you determine what the formulation should be then you do the calculation. But there's a real difference between the applicant's position. Um, and it's very good to hear the lawyer say two very relevant ways of looking at this. One is attorney Pley said the law court found a calculation that had already been introduced into the record from the um applicant and then briefed as an appel before the law court was derive a calculation of zero space. They found that that was imminently plausible. And then you heard attorney Burns, I think, correctly say, but that's dicta. And I think both attorneys have said the board has to interpret and apply the plain language of the ordinance. So I'd start there with 5.1623 and ask yourself that same quoted provision that both attorneys look to, how does the board interpret that provision? And it's going to take a little bit of work I I would predict to come to your interpretation of that provision. I

mean just to jumping around here but the you know in begin to summarize these two C presentations of of open space requirement calculations. Mr. Pleis is a bit more straightforward than Mr. Burns. uh be

um and if I may, I'd just like to circle back for the board to 51623 and just again um read this because I mean this is what it all comes down to is that the total area dedicated for open space must equal or exceed the sum of the area by which the building lots are reduced below the minimum lot size and otherwise required for the respective zone. The open space requirement for workforce housing colon when calculating the open space requirement for qualified workforce housing development which we have determined this is the density bonus units shall be excluded. So I see that you start with two math directions. Total area dedicated for open space. That's a number.

Total area. Yep. Then it must equal the sum, another number of the area by which the building was reduced. That's the number. What's that number? And then we exclude the three density bonus units and we have the number. That's how I read it. But chime in. How do you other math majors?

I'm not a math. Yeah. I I'm confused by the Oh, sorry. Oh, go ahead. Oh, uh the reducing the three units. So that that is what I don't quite understand. Are we So that was part of Mr. Burn's initial presentation of where um you know essentially that was the math of the the the total lot area.

Didn't you have to come up with that number to determine that six units were allowed on the property? you you gave them a a quantifiable number that says this is how much they're being reduced by. So you got the number. We've got the number and we've got we've got the number and the number of units and but you're going to exclude the d three density bonus units in the calculation at the end at the end of it. That's the way I read it. But

yeah, I think there's two reasonable constructions. One is the way you just stated I think that's a reasonable construction. And another reasonable construction is when you're talking about workforce housing before you even start doing calculations, you exclude the density bonus units. What's really interesting to me is to take the ordinance as a whole and look at the difference between how you do density bonus calculation and then how you do open space calculation. They're two very different approaches. And so what I am struck by is you can isolate just on 3A or you can take it in the context of the density bonus and look at the differences between the two. And I agree Mr. Summonsby's earlier comment that part of what you're trying to do is figure out what's what's the purpose of the ordinance that's being expressed in its plain language. But ultimately what you got to come back to is this very provision that the law court sites in its remand saying you determined that for workforce housing there was no open space requirement. The court said that that that dog won't hunt. You've got to determine what the open space requirement is for workforce housing. I think the way I read it um is that the second sentence is part of the same clause that includes the first sentence. And I I can see either way, but I think it's slightly more credible to say what are they trying to do for the open space requirement for workforce housing, which is the project you have before you. And if you take that category of workforce housing, I think this is a prior instruction. It may appear in the second sentence, but it's saying in the case of workforce housing, you got to deduct the uh bonus units first. And

it doesn't say first. It says when calculating the It doesn't say second either, but it comes second.

Math calculations. I mean, is is the wording of that essentially a like a a legacy of the lack of cl prior clarification between a a cluster subdivision in a workforce housing subdivision. Yeah. Yeah, I mean you could look at page 17 of the law court opinion um paragraph 2 28 I think it was that I read from and you can look to their agreement with the board's prior decision that there is a difference between workforce housing and cluster housing as it relates to open space. They also say clearly imposes some open space requirement for workforce housing right after

yes six units.

I agree with you member Daltton and the that's where the court took issue with the planning board's decision. the only thing they took issue with out of the whole decisions. It was just this one issue. So now they're saying there must be an open space requirement for workforce housing. Do the calculation. And I think there really are two alternative views that have been expressed in the two presentations tonight. One view is you start with a total calculation of open space and then you deduct for workforce housing. and the other would say because your application before you is a workforce housing application, you deduct upfront. And those are the two different positions. It's just it's stark to me when I look at page three of each of their submittals. They're they're taking two different approaches to the same text. And I think they're two reasonable positions, but it's your job as a planning board to determine what you think is the more reasonable interpretation and make it yours. That's the point. So in a nutshell, do we divide by six or three?

That's one part of it. I agree. Yeah. For what it's worth, when I was going through this um ladder explanation that you deduct upfront was what stuck in my mind. um you know the court didn't quibble with the density calculation so I do think we are stuck with that number and that's what we need to use three or 3.9 we don't want to round [Music]

yeah I mean I think we talk a lot about the intent of this and it's to preserve open space but the calculations is going to be different for each subdivision that comes before the sport. And I think right now we're just dealing with a small lot. It's going to be wildly different if it's a 20 acre lot, but the math should be the same. The math should be the same. The formula should be the same. Formula the calculation is number. That's what I say. I think the the threshold question for the board is and I think member Delton and member Burke have expressed it in different ways on the board.

It'll be up to a majority of the board to decide what's the formula and then apply the formula to derive the calculation. But the threshold question is the formula. What is the language telling you the formula is? I read that par I read the 51623 paragraph as okay here's the formula and by the way if it's a work workforce housing then then you you don't include the the bonus density

and I think that again that comes back to the legacy of the just the those two those two concepts being a bit more separated than they are now. Can you follow the math on that for the first two in the first sentence? Total area dedicated for open space must equal or exceed the sum of the area by which the building lots are reduced. So if you've applied your um perspective to those two math calculations, what would that come up?

Well, we know we're working with 39204, right? So that's unknown. That's not the total area dedicated for open space. That's the total area. That's the total area. And we know what the minimum I'm just I like to start with what we know. And we we all know that the minimum lot size is per unit is 10,000 square feet and and let's follow along with the language of that

as as an aid to your question. Um Mr. Chairman, member Dalton, you can also look at page three of each of the attorneys. That's exactly what I'm doing. I've got

page three of Mr. Pelagis and I got page three of Mr. Burns. The total area dedicated for open space must equal or exceed the sum of the area by which the building lots are reduced below the minimum lot size. and we're in the context of workforce housing. So, so if we're taking and you guys chime in here too as I weighed through math here, but what's sticking out to me is that we like we have one lot. We haven't reduced that lot any

but you've reduced the requirements to build upon that lot. That's the number we're looking for. But not the fourth density. Oh, interesting. That is the density. That is the density. The lots the number get them on the lot to get six lots on the lot. You gave them a bonus. We gave them a three green unit bonus. That's the density bonus. It was 30,000 which is No, which is units we're talking about. Not a lot. Not lots. Yeah. But they're what? 10,000 per unit.

So why

I I do think that that I mean I think one of the things is it is written for the concept of cluster subdivision. So if you don't think of this calculation in terms of this project but say the Ripple or some other where you have a minimum lot size of say two acres um and you say well everybody's going to be clustered together on this great big property we're going to give them each one acre lot. What it's saying is one acre that you've you've taken the requirement of two acres, clustered it. So there each lot's only required to be one acre and the lost acre now has to become open designated open protected land.

I mean it's a it's a very simple concept in in like a big lot. This isn't have individual lots. Mhm. So that's what I just don't even like my brain's really twisting to make this into a calculation in this situation because uh it's a the square footage allowed per per unit but we haven't reduced it's it's making that a lot size that I struggled with this too that I mean lot is a defined as this. Well,

yeah. I don't And I just don't think a unit can be considered. But is but is there a a minimum area requirement per unit? Then how did you get six units of on an acre? You've gave them a bonus to get them on the acre. That's I think the number that in my mind you have to use and the goal is to divide open space. So that was the first requirement like we need to calculate open space a number.

Agreed. There is an interesting perspective in what number Burke said and I'm been going back to 5.16 23 and if you use the singular total area dedicated open space must equal or exceed the sum of the area by which the building lot is reduced below the minimum lot size otherwise required for the respective zone. And then when I look at attorney Pelagy's page three, and I'll get to attorney Burns page three in just a moment, but what he's saying is, and it's true, um, in terms of the procedural posture of this case, a superior court and law court have upheld the planning board's determination that the proposed development is workforce housing is defined. They also, as I said earlier that paragraph 28 on the top of page 17 of the Lockwart's opinion said for purposes of open space, workforce housing has a different open space requirement than cluster housing. So if you're fetched up on cluster housing, free your mind. The lockard's already said this is a workforce housing application. Next sentence. Accordingly, the three non-bonus proposed dwelling units are allowed on the lot without any reduction of standard lot size requirements. So, he takes 39,2 ft, which is the size of this lot, divides it by 10,000 square ft, and he gets 3.92 units as

and 10,000 square feet being the minimum lot size.

Exactly. As the proposed development contains three non bonus units, all of which are permitted without lot size reduction based upon a plain language of LUZO section 3.5. Section 5.1623 imposes no mandatory dedicated open space requirement. Let me park that for a moment. Then he does the mathematical formula using that formulation. 39204ID 3 is 13,68. 13,68 per unit is greater than 10,000. So you haven't reduced it is his position. Then you go over attorney Burns page three and you've got the opposite view because he's uh attorney Burns is starting with the first sentence as though it applies the way it's written even if you've got workforce housing. And a piece I struggle with is why did the authors of this provision for open space, that being the town meeting or the ordinance review committee up through the planning board to the town meeting, why did you include the second sentence to draw a distinction between cluster housing and workforce housing as to open space? If you didn't intend that, why'd you include the second sentence? it must be describing that for the open space requirement for workforce housing um you exclude density bonus units. So that to me pivots with the second step of attorney Burns uh calculation is where you start. You don't start with this first. I think it it it yields an absurd result for workforce housing if you do it that way. and the courts have been clear. You're not to construe your ordinances to create an absurd result. Um, I just I I I can't get my head wrapped around the fact that you ignore the second provision

uh in subsection A of three. I think you start there. So, but enough of me. You need to see if there's a majority view between the two positions of the two attorneys as to the interpretation and how you formulate before you do the calculation. You haven't heard from either member Loftess or member Henry or others. You've heard from

Tracy. Well, I would I would think that since we've been asked to interpret it using the plain language, the the simpler of the two calculations would be more in line with that. Alan Well, I'm looking at on tad 4, page 1928 where it says to exclude the density bonus unit. So that means we're talking about three units when we do the calculations where attorney Burns always says six. So I think with what it says on that page that we should be dealing with three units. I think five 5162.3 spells out the formula and then it says okay if your workforce housing then you exclude it and we're starting with with three instead of six as we work through that formula. So are you saying that you you calculate six units 10,000 per unit and how the loss of the difference between and

start with three. We start with three slide. Well, then you're saying that it would be uh how small would the lot be that would ever have Um, it had to be over a 30,000 uh square foot lot to start off with to start with the that there could be three buildings on the lot.

So, if you say exclude the missing three, you started off with a lot that was too small to even put three. That's all. So the big enough for three units to be big enough for three units right from the beginning. So how are we coming up with if if you're saying exclude the the extra density units then you never come up with a lot that was there is never any uh calculation to be had. You so we would we had 39,000 square feet right? Mhm. And

for your 10,000 men a month. Well, that's that's that's where I was getting my three. Mhm. Rounding down from 3.9. You density, right? Yeah. Right. So, and so there would be no open space calculation according to that. Right. Calculation would equal zero. So, what's the scenario where you would come up with the calculation? You'd have to have a lot that was Yeah. smaller than 30,000 square feet, which wouldn't allow for three lots. So, we wouldn't start up, you know, you shouldn't start

or if Yeah. Or if you started with more units,

correct? It's it's binary. would be either um larger law or it would be um more bonus units that would inform your your formulation and calculation. Um and so I think you got to look at both of those. It's it's both lot area as well as the number of um workforce housing units because that's what the that's what the language says. you look the total area dedicated for open space must equal or exceed the sum of the area by which the building lot is reduced below the minimum lot size otherwise required for the respective zone and what I hear as an evolving um view is that with 3.9 acres you've got the 30,000 square feet that's required for the excluded excuse me the non-excluded um workforce housing units. So you exclude three and you're left with three.

Yes. That doesn't give you a calculation for open space. I mean, it comes out to be zero, but that to me is not what the ordinance is asking us to do. That to me that's saying that's the regular zoning requirement for the town of amount dessert and it doesn't take into account what we're actually trying to do is calculate open open space when you have workforce housing um applicable. It just ignores the fact that there's actually six units on the property. It just completely ignores it. It doesn't look ignores three. It doesn't ignore all six but it ignores the other three. Right? that calculation just doesn't even take them into account.

I think the problem is that it's because it it applies to the calculation is designed for cluster housing where we're reducing lots and we're not earlier. It just it just simply doesn't that's there's no scenario where you in this case like the the whole project started with that we can put three houses on here. Now how do we make it work for us and how much more density? to the concept of well how much did you have you reduced the lot you wouldn't you can't start off the project you got to have the equivalent of the the amount the court

the court remand acknowledged that we may come up with a calculation that doesn't require or results in a open space not being required I I have a question on tab Page three, uh, it has a a thing with minimum lot areas and it says workforce subdivision state minimum. It doesn't have a square footage for that where everything else the other ones 5,000 10,000. Do we know what the state minimum is for workforce subdivision?

Well, they touched upon that in the initial introduction, but Mr. report. I think you can fill in that blank. Thank you. The blank is strictly is that there is no state min there's no requirement of open space that is imposed by statute. Well, that is no minimum, right? None. They don't the legislature didn't address it. There's no open space requirement. Okay. We're not supposed to revert back to cluster because this is workforce, but workforce says 5,000 square feet.

Okay. I I think what you've said tonight as a board is that this is not a perfect provision. Nonetheless, you have to apply it. So, did I Everybody saw this. Yes. Right. And the Y. So you got like is it Bill? Just for the record. So it's the uh to see it. I just open space uh sketch. Okay. Um what's the date on that? It was

It was from the July 14 packet. I think July 14, 2023. 20 days. Do you remember the date on that? 514 2020 rev. Yeah. And uh that's page eight of that submission. I didn't know I'd be handing it in today, so I didn't give you the whole submission. I thought you had it. There's there's 20,000 square feet of green space there. You know, it excludes the driveways. It's um it's you know they 20,900 square ft

20,900 square feet and they they talk about that that that's also identified in the condom condominium um is condominium declaration declaration. Thank you. So plan as well.

Yep. And so you know in 51623 talks about that you know the this kind of open space is for low inensity recreation wastewater disposal agriculture other passive outdoor living purposes you know and preserving the natural features of site. So, um, you know, we've got 20,000 square ft of undeveloped area on this property and the total property is 39, 204. And you know, one one of my questions with that and just make sure I understand the context of how this is being used when we're, you know, it's it's a workforce housing development is, you know, and how it it it's organ it's allowed within the condominium bylaws is uh I would assume you could go anywhere on this plan in green and use it if you were in if you were a resident of one of the units on the lot. Right? There's

if you So the way the condominium declaration is set up is although those green there are more common area common elements, but all of the green areas on that page are parts of the common elements. They're owned in common by the entire by all of the unit owners. They're managed by an association that is a group of the owners paid for prora by unit owners for the maintenance and upkeep and they are accessible to everyone that lives there. Does that answer the question? Yeah. And then it's it's the common area.

Yeah. It's the common area of the lot and it's, you know, it puts in, I think, into context how ownership works on this property where you're you're ownership of a unit and not necessarily an area. If is it an internal or external wall, condominium, a condominium is the entire structure, the building. So, it's external wall. Gotcha. So, so,

so everything outside the external wall within which you as a unit owner own is common space, common, anybody in that development can use the green dotted area is what he's saying. So I would think of like in a broader or larger scale development, you might have like a open space requirement dedicated for recreation where there's, you know, okay, it's this cool little, you know, treat area over here and, you know, you may have picnics or whatever here, you know, in a potentially more dedicated area. But in this case, you know, we're talking about we're talking about units on a single lot. And essentially any of these units could have a kids birthday party anywhere on the green area of the lot. So it's when we're we're talking about open space, even if we arrived at a calculation starting with three units that that landed at a number where no open space was being required, there's still 20,000 square feet on this lot where You could have a kid's birthday party.

It's communal open space. It's communal. You've also preserved space under section 510. There's a there's a rectangular area noted on there that you've preserved for treat areas and education that's protected. Still a common area. It's still accessible to everybody that lives there, but it's preserved as well by you by by your direction. So, it's clear from the board's decision what that area is that you mentioned. Second, Attorney Pagan. That's 1600 square feet. Can you speak into the record what the green dotted area represents as an area? What's this? What's the square footage of that area? The green dotted area.

20,900. 20,900. Okay. Thank you. I mean, from the perspective of council for the board, I wouldn't mind if you use belt and suspenders, but I wouldn't try to um bootstrap your position from failing to look at what's the formula.

Uh do that first and then get to this second question of even if attorney Burn's interpretation is correct, then use page eight of that exhibit. But I think you got to do those in sequence. And my concern is you don't want to try to bootstrap compliance with the ordinance by failing to to to nail down where you are as a majority on the first question. Yeah, I took a maybe a sidebar there to talk about this.

That's fair. That's fair. Um the on I think in a nutshell what I was trying to say is this 20,900 square ft is is I think it's relative to a calculation if we followed Mr. Peli's approach or we followed Mr. Burns approach. That's right. But I wouldn't I I wouldn't try to say we're going to option two because we find option one to be a tie. you need to decide option, you know, step one first and then as as you said just now, Mr. Jeremy, hit the step two next to me. But

also, for what it's worth, when I was wrestling with this, um, I found going back to what type of subdivision this is was sort of helpful. You know, you've got your land division where you have lots, right? But this is this is not that. This is by development. And it's but it's still on just one lot. Um so go ahead. No, I'm still it's still congealing. Uh sure.

Um you know where you have a land subdivision. Yes. Open space would be uh I think there would be a calculate wait there's a there will be a calculatable area whether it's zero or not I don't know um but it would be the lots would be reduced on a land subdivision and then you'd you'd actually have a you'd have a number to work with where where lots were reduced beyond below the minimum lot size for that district.

Here we've got just one lot. It's using using the density calculation that we that the board has it it comes to over 10,000 square feet. And in here we're not reducing lot size. We're reducing area per unit. Unit. Yeah. Yeah. Are unit. Yeah. Not just unit. It doesn't say area. Yeah.

Yeah. Right. Can I can I address something to try and just expand expound on this? This is an all workforce subdivision. That doesn't happen all the time. It's very common in development law in other towns or other developments to agree to a portion of the development being affordable housing units or workforce housing and others being just standard cluster so you can get a maximum value out of them. And that's when you get into these types of when the calculations become uh meaningful. How many workforce units out of the total get a density bonus? How many how how many get excluded for purposes of open space calculations? How many of your other units get um open space requirements because they're standard cluster and you're getting full value for them? That happens. I I don't it's not before you, but it happens frequently. It happens all the time in in towns with larger subdivisions and larger condominiums. very common for developers to take advantage of affordability density bonuses, but only for some of their units. And this isn't that. This is a we're an organization that's committed to workforce housing. This is entirely workforce housing, this development. And all of these units, as you've known from our submissions, are subject to price uh affordability covenants that keep the price at a target for u to make them affordable. There's 39204. The minimum lot size is 10,000 square feet. They're allowed three units. They have a density bonus of another three units. This language,

it seems like the board is leaning towards is that the the density bonus is not included at the inclusion of or the commencement of the calculations. So when you're talking about this, we're talking about a a division by three. When you're dividing the lot size by three units, and we're looking at the the area the area per unit, you know, you're at 13,000 and which is above the minimum lot size. So, where is the the open space? And if you're above that with that number of units, well, there there isn't. But if they came out of the gate and they had four units, you know, it would be different. It would kick us it would kick us into a a different net result which would

naturally require that. But if they started with the four units, they would have had to already be engaged in that some sort of extra density because the town couldn't. You start the conversation by buy the property. The whole entire thing starts with the calculation of we've got over 30,000 square feet, not 40,000. So, we are allowed three units. That's the that like calculation you're going back to. The whole calculation could never start if there if it wasn't if there wasn't enough lots for those three units. But there wasn't that density bonus to get your other three in there. just to that I'm stuck on

just just to reconcile all of your positions. Um, and it's possible you won't all universally agree. It's only necessary that a majority agree. So, what I'm going to do is take the chairman's statement as a formulation and see if we can test it with the other members. What I hear Merida saying is if you if you'd had four um units that were not excluded as bonus units, you would have had to have more than 39,000 square feet. Right.

Agreed. But we got to deal with the application elements that are before us. And we also have this challenge associated with this very one component remand. A lot of this has already been decided. I don't want to go back and plow old ground of what if, what if, what if. I think you've got a very concrete question to be decided. And I think the chairman has formulated reasonably well his formulation. Um, I would suggest that you're probably not going to have a written decision to act on tonight, but I need to glean enough of what the majority position is on what the chairman said. So if you can

I'm actually still trying to consider all the situation all but you don't have to consider all the different situations that may appear before you in the future for two reasons. One is the remand is focused on agreeing with your decision. I'm not I'm just trying to sort out the the options and how I see this because the the calculation as being cluster workforce housing. This is not cluster. We don't we don't have lots. That's right. So there's that whole factor, but then there's the factor of them saying that we're supposed to have a calcul that the the court has said, what is your calculation for open space?

But it's found even a calculation of zero to be imminently plausible. But you still have to have a calculation. That is a calculation. Zero is a calculation. It's a result of a calculation. The calculation is saying first step is formulation. What is your formulation? What the language means? The chairman has given his formulation. It's okay to take a pass if you're not ready to say whether you agree or have a different formulation. I hear you. I just want to go back to

can you just let us have the conversation because this conversation over here was helping me think it through and you're saying stop having a conversation because I'm not ready to figure out what I I want to hear what everybody but let us talk this through. We have not. You've thought about it. You figured it out. We have not. We still need to be able to discuss it in the process. If this wasn't a workforce housing subdivision application, then I think we would have a different calculation. We would be starting with a different number. I mean, we would be in a nutshell, we would be um dividing by six and not three,

right? So what I'm trying to get at is these incremental steps towards a formulation of a calculation where it seems like there's a general consensus that we're we're dividing six. Yes. you're dividing the the whole lot by three. That we're coming out of the gate following the in our process of formulating a formula here. We're talking about three units, not six as as per five 16.3. Yeah. But you're saying you're dividing the 39,000 by three.

Yeah. I guess the way that I look at it now, you know, we're we're thinking with three and I can see attorney uh PLY going that since we're over 10,000, you know, we're 13,68 for each of those three, we're above the 10,000 minimum lot size. So, we have extra property. Thus, we don't have to specify open space because there is open space already. There's not a lack of open space.

And and that's what I was trying to put in context is like look even if we were to follow that pathway and we arrive at zero, we still there there is still something there. You know, it's not it's not technically zero, you know. It's it's 20,900 square ft of if if the 13,68 was less than 10,000 then we

would be deficient and we would have to find dedicated open space. But because there is extra space so-called, we're above the 10,000 square ft. I can see how we do not have to Mhm. demand ask for designated open space and which would put the open space requirement at zero. And I think if this again if this wasn't a workforce housing development, we would probably I would wager we would be talking more about Mr. Burns formula.

I guess I feel like isn't this what we decided like when we went through the application originally? I'm like this is exactly the conclusion that we came to and that's what I'm like it got wrong apply. Yeah. So what we we said Meredith was like hey this isn't cluster subdivision. This is housing subdivision. What the court said was okay they're they're not mutually exclusive. They're they're of the same family and you guys got to figure a cluster. I think the and I thought we had this conversation when we went through it is cluster can be affordable but affordable doesn't have to be cluster

and that we came to the conclusion of this is affordable it's not cluster but they wouldn't do cluster unless it was affordable food but but they sent it back saying you have to come up with something and I'm like but it's not cluster can't get fast it's not cluster so under a cluster development that didn't have workforce um governance affordability governance, we would be entitled to six units because your lot size minimum for um cluster subdivision is 5,000 square ft. Mhm.

If we didn't have the affordability covenants, there would be no density bonus. It's just a different lot size calculation. Mhm. Um we would have to preserve open space for everything o every unit essentially every 50,000 minus 39,24 whatever that number is 20,000 something right we would have to provide that open space if it was just cluster right so the law says we're making it work with the cluster the law court says that there's there are open space requirements for both right

but Then it says that looking at the ordinance as a whole, the purpose of workforce housing is to allow denser development, i.e. with less open space. So that's from the law court decision on page 17. So it's different calculation from standard cluster calculation. That's why we're starting with three instead of six.

The last time you said did not apply, the law said it does apply. I have to show the math to show where you get a number from. The number could be zero which you know in my world sense that means there's no open space requirement. There's right you're not applying a number other than zero to that section. Zero is a number. Sorry engineer zero. So basically we just have to show our work. work. So I I that's where I fall off. I'm on like what work? I get not closer. So it doesn't

Mr. And like well this is what got remanded. So Emily just said the work I from from the applicant's perspective.

It's important that a majority of the board state what you think the work is. Um but I think you're almost there. I I'm not I'm not pushing the board to get any result. I'm just trying to use your time efficiently and I think there's been variations on the theme and I think all those variations add up to gee it sounds like where you are is this is true 100% workforce housing. If it is you don't apply the density bonus units. You only apply the three base units. So

now would we re we apply the three base units you know that's where you know I can see your thing you know it's supposedly it's not cluster it's workforce but if we use cluster then that's 5,000 square feet per unit and the same math works. Yeah, I come back to something member Burke said just a few minutes ago and that is

this one's a little bit confusing because it's a developmental subdivision. It's not a raw land lot subdivision. Okay, you only got a single lot and you're using a condominium style of ownership which means only the space within the exterior walls are owned by individuals. Everything else is owned in common.

Yes. And so I think to to go to your question, Member Kely, I I think that because it's a true workforce housing unit, the signal in your the plain text of your ordinance sends you to exclude the density bonus units and you're at three. And the question is if you've got 10,000 square feet per unit typically um for workforce habitat per the subdivision ordinance and it's correlative land use ordinance provision then you take 3 * 10,000 that gives you 30,000 and we've got a 39,000 and change square foot law. So therefore you're not reducing below what's required by the formula. So if you come to a majority perspective on that in whatever way you'd like to, I'm not going to push you to get to any given result. I just think that that's the first step. And then the second step is even if you were to reverse the order, is there sufficient um commonly held open space that you would meet it even if you reversed it? But the law court for me has given definite cues to this board. we would find eminently plausible the method that you've described in various ways as a board already tonight and they may well uphold you on that. Okay. But if you want to wear suspenders together with your belt, you could also go on and say even if we were to do it the other way, we find that 20,000 900 square feet is greater than the 10,000 and change calculation that attorney Burns provided. So you would either know it's so hard the train of thought

with the um but the if you were if you had a deficit based upon the the number of units and the lot size when you were first calculating this and this wasn't a workforce housing development then you would follow Mr. Burns math and but that's not what we have here. We have a surplus right with three units and it and it is a workforce housing development. So we end up with a surplus because of that the 13,000 square feet per unit and you know that's for three units that's like 9,000 9,000 square foot surplus. So that doesn't kick us into the math that's spelled out in the first sentence of 516 23. So we end up with a surplus and the minimum above the minimum lot size. And then you know I think when you're looking at that then then that's determining or aiming you at that there's there's not an open space requirement here. It's it's essentially zero as they spelled out. And what I was trying to say earlier is that the net result is is it's technically not zero in the context of this project. I mean there is green space allocated here and protected through the condominium bylaws

declaration by laws get changed easier by the association. That's why I'm making the distinction. Got it. one recorded, the other not necessarily can be.

I I it seems to me that we're now working through Well, I guess uh really just defining how this is said, but when you said that uh if it wasn't done for affordable housing, it would still there would still be space for six. there was a 10,000. The zone has it at 10,000 ft. The cluster housing would get it to 5,000, but the zone, which is representative, the the uh wording of the minimum lot size required by the representative zone. So, it would be from 10,000 square feet if you're calculating cluster housing. I personally like the concept that we say we don't we calculate it as affordable housing and therefore not counting those units and by that calculation there is no shortage of lot and so there is no requirement for open space.

Yes. But if you calculate it for with the cluster uh subdivision requirement, then they're required to have the 10,000 blah blah blah square feet. And they have that because it's a condominium development and all of the open space counts towards that because it it is defined in the condominium law. And then you've got it from both both arguments and both letters. You do. So the the 20,900 square ft plays a different role based upon what the there's no role in the first there's no role

and the second role you're saying well that's open common shared open space preserved by the condominium law open shared space but I but I if it wasn't a workforce housing development I would say that we would be following Mr. Burns math instead of Mr. Pagy's math. What it is? I would disappear because you're just doing village residential one 10,000 square feet per three units. That's not cluster or workforce. That's just what the town allows you to be.

I think for me to do the town a ser a good service of I said precedent. You say we might not need it, but I feel like you've got to calculate the court as close to this ordinance as you can with your math. Mhm. Following the math down and it's great as if it looks like their subdivision meets the requirement, but I just want to see more solid math. You want to see math, but the math is for cluster, right? It's workforce housing. No, workforce housing calculated when calculating open placement grants qualified work.

What you're looking at agree if it's cluster it's be dividing by six. If it's workforce you'd be you're dividing by three. But what we what we came to the conclusion of was that a cluster would be workforce housing but workforce housing doesn't have to be clustered. But the courts said if and again it's got the some of the wording of the court decision I struggled with but I I understood the court told us like they're not they're not exclusive. Yeah. No,

because there has to be workforce, but workhorse doesn't exist in the same sphere of influence and that we can't we can't say, well, there's no open space because it's workforce housing because the court said they clearly impose some open space requirement for workforce housing. our ordinance. They cited the number and they said it clearly imposes some open space requirement for workforce housing in the but is it could be zero. It could be zero. Exactly. Yes. According to which math we picked. But are they coming up with that from the

from 5.12 that says permanently protected site 5.16 in the 16.2. So, if you go to page 17 under tab three, I think you'd find this helpful. Second. Sorry, which tab? Uh, tab three. Tab three. Page 17. Page 17. Got it.

And take the entire paragraph. Don't just take one sentence. Take the entire paragraph. When we apply these principles to a reading of the text of section 51623, two points emerge. There is an open space requirement for workforce housing subdivisions. Underline that because the last time the decision issued, you found that there was no requirement for open space for workforce housing. They're disagreeing with you. But the second point is really important to the thing that you've been wrestling with, Meredith, and that is they find that open space requirement differs from the requirement for cluster housing subdivisions. and it and it differs by three or six.

Right? So they go on to say as reflected in the discussion above regarding density limits and looking at the ordinance as a whole, the purpose of workforce housing is to allow denser development with less open space. Hence, six units are allowed on this lot as opposed to three. That said, section 5.16.23 23 clearly imposes some underline the word sum open space requirement for workforce housing. It expressly references open space requirement for workforce housing and explains how to calculate the open space required. So I'm I've been doing math a long time. Zero is zero is a math digit. Okay, you can say that you got to have some open space requirement then come to a calculation of zero. But again, just as council for the town, the planning board here, I wouldn't feel terrible if you did a belt and suspenders uh rationale, you first find that under 5.1623, you do in fact exclude, as several members have said, you do in fact exclude

the motion on that from the board. Yeah, that's a good place to It seems like that's I would make a motion to regard this as three units versus six because of the workforce housing blah blah blah. Rephrase it more. Yeah.

Yeah. According to 516.23 [Music] and the project being determined previously determined as by the board as being a workforce housing development that the formula for the open space requirement excludes the density bonus. Hold on. Hold on. Therefore, the initial calculation is based on three based on three units instead of six.

Can I ask you excluded the density bonus, but I think you meant to say the density bonus units because did you're not giving me a density bonus number. I've got one. But yeah, the you're not excluding that. No, we are excluding you're excluding the three units. We're excluding the three units allowed by the density bonus for that type of development. Okay. We had exclude density bonus uh therefore based on three units in Oh, therefore it's based on three units instead of six. But you want the word unit. any bonus unit bonuses number.

Is that our motion? I can second. I would I would read it back. Well, I just I would encourage us to do also what was suggested was the the the backup argument for the sake of the courts. Um yeah, we can add that to the motion. No, I wouldn't. No, I'd do two separate motions. David, you're going to have a hard time if you try to bring those two together at the moment. But it is an important second motion. Yeah. Okay.

I I just want to I I see a hole in in the argument and therefore I don't want to get kicked back to court and then just say, "Nope, that's because I feel like we're basically doing the same argument that we did." I mean, it's slightly different, but we're coming up with the same argument that we did the first time, and it got kicked back to us. So, I'd like to back it up with the other argument so that we covered our bases.

However, if it was not workforce housing development, then the bonus density bonus would be included into the initial calculation. and uh

uh saying that the the other calculation of it's it's got six units on uh 39,000 and that whole calculation down and then times it by only three that that's the leaving out that that's treating it under the cluster that the courts are saying there's no difference between cluster and workforce then we make that calculation and say and here is the designated space. So, it's still under the even under a cluster workforce housing definition. It still is okay. Should that be cluster slashworkforce housing?

That's the only thing that I can see is that they're saying we shouldn't have that there shouldn't be separate, but they do recognize that there's a word. Let's get Heidi to mold the clay of this motion. Let's stick with the first stick with the first motion. Yeah. Okay. I don't know who motioned this but right regard this as this uh subdivision maybe this regard this as three units versus six because of workforce housing according to uh section 5.16.2.3. Uh is that the lo or is that subdivision? in

and uh project this is very and then I think this is where we went with bill and project previously determined oh and the project was previously determined workforce Alan not your motion but I think we could just wipe the beginning of your motion sure absolutely from the record I I wiped the beginning of that motion and we just we just need to say as determined previously by the

I make a suggestion that I can't move as an alternate but we maybe we start the motion with the conclusion that

we're not um under 5.16.2.3. The open space requirement um or the open space requirement is zero based upon the calculation. You've tried that blah blah blah based the pie. He doesn't like it. on removing your three units from the calculation at the be which is what you did. So based on rem removing the bonus units I'm helping you out here for it

like you start as at the result the result and then into it. So you say that again slowly I remember it. um we calculate the open space requirement to be zero based on the Can I can I can I give you a hand based on what I'm hearing please?

So I think you're you're actually smart to start with a phrase according to 516.2 two for N3 if you have workforce housing and I think that's the important premise you have 100% workforce housing here and you may want to actually say that if you if you have 100% workforce housing and that is the application the initial calculation under 516.23 two and three is based on three units excluding three density bonus units. Therefore, it is based on Yep.

on three units. Yep. Therefore, it is based on three units and the calculation follows because I think you have to do the formulation first. The calculation is 39,24 square ft divided by 3 gives you 13,68 square ft. You might say divided by three non-bonus units. So you're clarifying.

I I agree. Divided by three non bonus units, correct? That equals 13,68 square ft. period because 13,68 square feet is greater than 10,000 square feet. The minimum lot size requirement for BR1 the minimum lot size requirement what was the number 10,000 square feet based on the min yeah the minimum lot size requirement in the VR1 zone

area in the VR1 zone for lot area agreed the required open space equals Z in this application or for this application the required open space is zero based on this application. Is that what you said?

Equals zero for this application. I you could say for this workforce housing application because I agree with the comments I've heard from both Meredith and an that if you had cluster housing and it wasn't workforce housing it'd be totally different. And Heidi, you're much better at reviewing what you've got than any of us would be. So when you're ready to read back what you've got, that might help the board.

Uh, according to section 51623, I'm going to say of the subdivision ordinance, if you don't mind. Yes, that's correct. If you have 100% workforce housing, the initial calculation is based on three units and the calculation is as follows. You should say based on three units parenthetical excluding three density bonus units. There was a piece I was missing. Yep. No, not a worry. Uh excluding three density

bonus units. Okay. According to section 51623 of the subdivision ordinance, if you have 100% workforce housing, the initial calculation is based on three units excluding three density bonus units. And the calculation follows 3,00 39,204 square feet divided by oh three non bonus unit units uh gives shouldn't it be results in 13,000 results in is better way

um results in 13 hold on I got to write that in in 13,68 square feet because 13,68 square feet is greater than 10,000 square ft based on minimum lot size requirements in the BR1 zone for lot area. The required open space equals zero for this workforce housing application.

That's Alan's motion test. Well done, Alan. Yeah, you nailed it. I owe you coffee. All right, who's going to second? Tracy Keller, I'll second. Any further discussion? Do we need to set forth that in reality this has passive outdoor living space equivalent to 20,900 ft?

That's motion too. Yeah, that's motion still to come. Okay, no further discussion. So I guess I'll call it by member. So um all those in favor I Kimberly Meredith I Meredith Kindle I William Hanley I Tracy Keller nay and Dton. All right motion carries the direction of the map number two. Motion number two. If you turn to tab eight, go to page three.

You want me to try to craft a motion for the board to consider? Yes, please. Yes, please. So um if the first step in the calculation under section 516 23A is to derive the total area for open space.

Okay. I mean, shouldn't you say if this wasn't a workforce housing? I think that is better. Um, I accept the chair's suggestion. So if you if you read back what you've got so far, I think we the first step in the calculation under section 51623 of the subdivision ordinance is to deter to derive total area for open space. Yeah. So before you get is to der derive total area for open space just put in a parenthetical

that just before you say that I don't uh understand how it wouldn't be workforce housing it's cluster workforce it the calculation is for it to be work cluster workforce housing but still to end up with six units on there it has to be workforce so this calculation involves it being workforce as well they only got six units on there because it's workforce Uh let's see that that's where the it's saying cluster and workforce are all one one thing. So, so now we're saying so the parameters of the remand based upon page 17 as we read it together same but different they're same but different

is what I'm saying but it's it's not that it's not work same you you and the chairman work that out because that's the piece that you can't wouldn't have you can't say if this wasn't workforce because you wouldn't end up with six units on the lot guys could just make a finding about how many square feet of preserved health and space are there and it's not the No, but you've got to have something that represents a comparative value. Okay. It's the calculation saying the area of each dwelling of the like can can we say something like if this wasn't an exclusively a workforce housing element.

That's where you should start. I think that's the premise that's the lead into this. So Heidi, go with what the chairman just said. So, if you can say that slower, Bill, and then let's let's let's talk about that. I mean, should we say something even more specific that even if given that this is an is No, no, the way you said it the first time was better. Given that this is exclusively a workforce housing, not given that. Can you explain what we're trying to do for the second one? Because I think I thought we were just now trying to show that they met the requirement of zero open space on what they've already

No, this this this this is a way of saying if you don't at the outset exclude the bonus units, which is attorney Burns premise on page three of his letter, he deres a value of 10,398 square feet. And what Mr. earlier point tonight was even if you adopt 10,398 ft as a requirement, they meet it with 20,900 square feet. We're essentially saying they're both right, but the it depends on what kind of development it is. was the last um didn't we just pass that they're using the calculation from attorney ple and

yeah so let's rather than saying if it were not workforce housing or any of that let's just cut that out and say if you were to calculate this the other way where we're dividing the whole lot by six units to uh that the that each unit needs 10,000 square feet and what do we have per six units read in this calculation calculations. Well, there's there's the calculation that comes up with the 10,398 square feet needed of open space and we have that. I mean, do we need motion two or do we talk about motion two relative to this though?

We are talking about it relative to this. You're coming up with this calculation that you need 10,500. All right, here's the way to start it. Based upon the end the tag of the first motion that Mr. Kimberly made, we said it's it's it's a calculation of zero. Start it this way, Heidi. Maybe if the calculation is not zero under 516.2 2 3 comma Did you say 5.23A? Excuse me. 5.1623. Okay.

Um and were a value of 10,398 square ft. we can talk about later if we want to specify how that Can you give me that number one more time? 10,398 square feet. Okay. The applicant meets and exceeds that requirement with 20,900 square feet of commonly of of common

I'm sorry. Can you give me that number again? 20,900 square ft of common passive outdoor recreation space as identified on the as identified on page eight of the July 14 supplemental submission. We could say July 14, 2023. As as identified on the Can you say that one more time? as identified on the on page eight of the July

18, excuse me, July 14 comment 2023 supplemental submission of applicant. And how about including also and also defined in the uh condominium that defined and protected in the condominium? Yes, the word protected is the right word. I agree. Um so um the 20,900 square ft is um provided for in the condominium declaration as common open space provided for and protected by yes

better common open common common open space you want the provided for and protected by it's got to be attached to the two words condominium declaration.

Okay, I think I have it in the right place. All right, you ready? If the calculation is not zero under section 51623 of the subdivision ordinance and I can't read that word oh was a value of 10,398 square ft the applicant meets and exceeds meets and exceeds the requirement uh with 20,900 square ft of common passive outdoor recreation space as identified on page 8 of the 714 2022 supplemental submission of the applicant and defined and protected in the condominium.

We do have that provide uh defined and protected in the condom condominium declaration as common open space. So we do have the that's what's whose motion was that? Is that yours Meredith? Oh yeah, that was mine. I heard that as your Mhm. Go, girl. I'll second that. Oh, Tracy. Tracy, second. Uh, yes, we did. Any further discussion on that motion? None here.

I'll call it again by individual. All those in favor? Alan? I Alan Kimberly. I Mayor Trandoff. I William Hanley. I Tracy Keller. I am Dolly. And what I'd suggest is that the board give the opportunity for the brilliant board secretary and council to finalize u the draft decision um and get it to you uh at an upcoming meeting coming soon. No motion. We just do that. We'll just do that. We just do that. Yeah.

I know. So, no other motion necessary relative to the remand. Those two cover it. I I I just think that the council for the parties argued well tonight and presented the board with a pretty clear understanding of how they see 5.1623. Just thank them for their efforts tonight because I thought it was well argued. Thank you, Mr. Burns. Thank you, Mr. PGY. More importantly, Brady, congratulations. Have fun. Yes.

Thank Thank you, Dan. Um and and uh so Mr. Chair, as a point of clarification, so the board just took two motions as to uh what I what I interpret as as as findings. Um but the board has not taken a final motion as to the disposition of the application on remand pending the board's review of draft findings by your council. Is that correct? Correct.

That's that's well stated, Attorney Burns. What what I think the board's going to have to do is if they are final give final approval to the decision rationale that was asked for by the law court then attorney Burns is exactly right. then the board will have to say and on this basis we again approve the heelway subdivision application but we've not done that yet and I would hold that in advance until the rationale is really clear and universally agreed to and that's essentially how we did it with our former findings. Exactly. Yep.

So so just just for the purposes of timing then the this matter is still open. a fin a final decision has not been reached by the board and I just want to make sure that the we're close but we're not there yet. You agree? Excellent. All right. Well, I uh Attorney Hamilton, do you have a a sense of the timeline for when a a written um a draft written decision might issue? Um Thanksgiving is next week. It won't be next week. Um and I'd look to you, Heidi. Would we have a chance to talk in the first or second week of December? Yes. Good.

Yeah. Then I'd say what's what's the board scheduling usually because I think it worked well to have this outside of the regular schedule. So do you want to set a special board meeting sometime in December? I think you can count on the fact that I by the by the end of the first week in December. We should have a I can get this done before the end of the When's the first hearing in December? December 10th. But that that's packed. That's packed. Don't touch that. Yeah. So you need to set you need to set a meeting there to be December. Well be nice so everybody can move forward better.

The 10th is on Wednesday and the 17th is the next Wednesday. It's going to be short and quick though right on Wednesday. Just do it one day. Yeah, the the final uh operative motion is not going to take long. It's it's just going to be giving you prior opportunity review and then at a meeting the 3rd or the 17th of Wednesdays or being considered.

I can't do it the 17th. I can do it the third. And you you couldn't do it on the 10th if it's a 15minute item. Okay. We have a contentious application on there. That's a public hearing. I have to see if the rules available. So what state are you looking at? The third the 3rd of December. Can't do the third, but Daniel can take my place. What What day of the week is that in? It's a Wednesday. Wednesday. Okay. And I can take your place.

We have altern that's only gracious member Dalton. That's appropriate. That's why we have an alternate [Music]

crazy spot. So, I'm gonna come back to you, Idiot, and just say if we can get it done by the end of the month, that would be great because I've got another Hancock planning another Hancock County planning board meeting not in Hancock. Good on December on December, too. So, if we can if if we can have the decision hammered out a week before, that's probably good. But I will I'll start tomorrow. Yeah, I I'll I'll be in touch. That means I

No, are you working on certain the the loss so it's not such a snarled mess? That sounds that be six o'clock on the 3.

Kim stepped out to check the room availability. He's coming right back. We're doing all Zoom meeting. Well, we were only doing the like votes where we all held our learnings because of a good practice though. I like it. Then you don't have any question as to how each members voted. But you're right. It it arose out of a co period. Yeah. I didn't I thought that was something we find out now we spread that in co we're right but I thought because we're not on Zoom anymore still

I think it's a best practice actually I've seen other boards do it um even before co and certainly following co so you know exactly how someone's voted you don't have to try how did that person vote right yeah like you're not required to to do it you're absolutely right about that Merida I just think it's the best practice but the last totally up to you. I've seen appeals boards to that and I thought it was just cleaner and it especially when there's like So the 26th of November is a week prior to December 3. December 3rd works but that's okay.

That's what we'll have to do. We'll have we'll have to get a draft done the board's review by the 26 day before Thanksgiving. Y can do that. Okay, here we go. Motion, Bill. Yeah. Like to make a motion to adjurnn. Are we adjourning or are we moving it to a date certain? Oh, no. You got to move to a date certain. Yeah. There you go. Alan just moved to move it to December 3rd 6 p.m. Tracy sec second. Second. All those in favor? I opposed. There you go. Thank you to the board for the work tonight.

Yeah, thank you board members. Thank you all. Thank you. Thanks, Attorney. Enjoy Grady. You are just in a date certain garden.