Planning Board Split On Sundae School Condo Project

 HARWICH – The planning board again postponed a decision on the proposal to build 28-condominiums on the Sundae School ice cream property in Harwich Port.

 The Oct. 28 hearing, the fifth held by the board, showed a split among board members on whether to issue a multi-family use special permit and a site plan review special permit for the project. A straw poll toward the end of the evening resulted in a 4-3 vote in support of the project. 

 However, it was initially unclear among all parties whether a super-majority vote was required for the issuance of the special permit. Town Planner and Community Development Director Christine Flynn later confirmed a super-majority vote is necessary for approval.  A super-majority vote requires that five members of the board support the project.

Attorney Marian Rose, representing applicant SSHPORT, LLC, said the project as presented meets all of the requirements of the town’s multi-family use bylaw. She addressed the adjustments the applicant made in response to concerns cited by town staff and residents of the neighborhood at the multiple hearings. She also emphasized the applicant’s willingness to go beyond the requirements, citing the addition of innovative/alternative septic treatment, 11 more parking spaces than required, and a “generous” landscaping plan.

But the board got bogged down on bylaw provisions that dictate that the project not adversely affect the neighborhood.

Neighbors Bob and Barbara Nickerson, who have been vocal opponents of the size of the project on the 1.75- acre lot, have retained the Brewster-based law firm Senie and Associates, which in a letter read into the record that night questioned the project’s impact on the neighborhood.  

The letter from attorney Jack Herndon urged the board to direct the applicant to reduce the scope of the project to two stories and revise the appearance to better reflect the character of the surrounding neighborhood.

He also claimed that the proposed development fails to satisfy the criteria of the bylaw. Its scale, design and operational features are incompatible with the surrounding neighborhood, pose traffic and safety concerns, and lack adequate facilities for proper use, he wrote.

“The project as currently proposed, is adverse to the neighborhood and should not be granted a special permit without substantial revisions,” Herndon wrote.

Planning Board member Harry Munns said he was going to vote in the affirmative. He said he listened to many people who spoke out against this project, but stressed that the actions of the board are guided by the zoning bylaw. 

He said there are four provisions that must be addressed to reach a decision: the project will not adversely affect the neighborhood; the site is an appropriate location for the proposed use; there will be no nuisance or serious hazard to vehicles or pedestrians; and adequate facilities are provided for the proper operation of the use.

Munns said he heard a lot of opinions from abutters on how the project will affect the neighborhood, but no fact.

“It doesn’t say anywhere we should be guided by the neighbors,” Munns said of the bylaw. “The chairman mentioned a couple of meetings ago we should be guided by public opinion in addition to what’s stated in the bylaws. In my opinion that is a slippery slope.”

Board member Mary Maslowski said the applicant presented facts that back up approval. She cited the Melrose building across the street, adding that she can’t see why 28 condominiums can’t be approved. The staff has said the requirements have been met, the board of health has approved septic, and the town’s consulting engineers said it’s acceptable, Maslowski said.

Planning Board Chair Duncan Berry said the language in the bylaws is the basis to inform opinions. When talking about character, the metrics that should be used is the impact on the town, he said.

“The impact on the town is unambiguous,” Berry said. “We can’t ignore the voice of the people who live next to it.” 

Berry said the board has received 242 statements against the project. The board has not heard that amount of protest in the five years he has served, he added.

 “We are the firewall of public sentiment for the look and feel of our town,” said Berry.

 There were differing opinions from board members on the weight of public sentiment versus the language of the bylaw.

 Property owner Rob DeMarco said it’s a breath of fresh air to hear the board’s thoughts. He said his company has spent a lot of time and money to get to this point.

 “We’re sitting here trying to build a first-class facility,” DeMarco said, adding that a rental restriction could be removed and the condos could become apartments if the board insists on further negotiations. “You guys are molding the clay to something the public has told you they don’t want. It wasn’t Sundae School, or Campanelli, it was the planning board that decided to make those moves.”

“I don’t think that’s our goal. I don’t feel comfortable with that,” Planning Board member Emily Brutti said.

Anne Clark Tucker said she sees the board’s role differently, that the board should tell the applicant where it is on the project.

Maslowski said she has been on the board since 2016 and the board has never done this with an applicant before. She said the staff report indicates that the project meets all the requirements and the board is talking about re-crafting the details.

“We’re not talking about re-crafting a project,” Berry said. “We have a situation with increasing frequency in this town, that we are faced with a large block of public opinion that focuses on a judgment matter that has a substantial impact on the character of  the town. There is no check box for that…That’s all I’m talking about.”

The board provided the applicant with the option for another continuance to provide time to consider how it wishes to move forward. The next hearing is scheduled for Nov. 18