TOWN OF DUXBURY, MASSACHUSETTS BOARD OF APPEALS Decision on Application for Comprehensive Permit Applicant: Project: Decision: Island Creek

Village North, LLC 30 Tremont Street, Case No. 08-07 Approved with conditions

This is the decision (“Decision”) of the Duxbury Zoning Board of Appeals (the “Board”) on the application of Island Creek Village North, LLC (“ICVN” or “Applicant”) for a comprehensive permit to further develop an existing residential project that was permitted under c. 40B in 1980. The project currently consists of 106 units (136 bedrooms) of mostly elderly housing operated by Island Creek Village East L.P. (“ICVE”) and Island Creek Village West L.P. (“ICVW”). The proposed in-fill development would add 214 units (314 bedrooms) including three 36 unit rental apartment buildings, 12 three bedroom townhouses, and a 94 unit assisted living facility (the “Proposed Project”). The site of the Proposed Project is No. 30 Tremont Street, Duxbury, Massachusetts, parcel Nos. 110-452-003, 114-452-002, and 114-452004 of the Duxbury Assessor’s Map, which are zoned in the Residential Compatibility (RC) district. Approximately fourteen acres of the current 21 acre site are open space available for further development; a 1.5 acre parcel is under agreement from the adjacent First Baptist Church (“Church”). The total acreage for the Proposed Project is 15.5 acres, all of which is upland. Background The Original Comprehensive Permits and 1980 Stipulation The two original comprehensive permits were issued on January 29, 1980 to ICVW (No. 79-22) and ICVE (No. 79-23) (together the “Original Comprehensive Permits”). Despite the three decade interval, the general contractor, developer and investors in the original project are largely the same as the principals involved in the Proposed Project, including John W. Keith of Keith Properties, Inc., and Thomas P. Duggan of T. Duggan Investments, LLC, whose father, William E. Duggan, was among the original partners in ICVE and ICVW. Although the Original Comprehensive Permits were granted separately to ICVE and ICVW, the East and West portions were “so closely interdependent as to constitute a single integrated project.” (Original CP at 4) The Board’s chief concerns in approving the original proposal were mostly environmental. Due to the porosity of the sandy soil (“At certain locations it is so pervious that a percolation test cannot be properly performed.” Id. at 5), phosphorus and nitrate would migrate and cause eutrophication in protected resource areas (“Highly pervious soil does little to remove phosphorous and nitrate from sewage effluent.” Id.). Because of these concerns and proximity to sensitive wetland areas, notably Dead Swamp, the Board’s permit was conditioned on the

construction of a sewage treatment facility. (Condition 3) The Applicant appealed Condition 3 of the Original Comprehensive Permits, among others, and that appeal was ultimately resolved by a recorded stipulation dated September 23, 1980, which supplements the Original Comprehensive Permits (the “Stipulation” recorded on January 26, 1982 in Book 5106, Pages 365-71 of the Plymouth County Registry of Deeds). The recorded Stipulation deleted the treatment plant requirement in exchange for reducing the total number of units by 25 percent from 140 to 106, and decreasing the site by five acres. Three of those acres were deeded to the abutting Church and restricted from further development. The other two acres that front Tremont Street were retained by the developer for commercial development, which was subsequently permitted under the Duxbury Zoning Bylaw (Special Permit Nos. 83-4 & 83-5 dated September 15, 1983). The Stipulation, which is signed by Messrs. Duggan and Keith and the Duxbury Board of Selectmen, contains several conditions in addition to those in the Original Comprehensive Permits, most pertinent of which are aimed at addressing the Board’s concern with the effluent from the site: 1. First, the Stipulation states that “[i]n no event will the design standards of the Duxbury Board of Health be waived.” (1/26/82 Stipulation at 3) 2. Second, “no buildings and/or parking lot shall be constructed on the land” being deeded to the Church. (Id.) 3. Third, “the requirement for granite curbing is waived, except at the entrance to Tremont Street, and Cape Cod Burm [sic] substituted therefore.” (Id. at 4) 4. Fourth, “[t]here shall not be any future development of any type on the site (additional units or buildings). The two (2) – acre parcel reserved for future development is not included in this prohibition.” (Id. at 5) 2005 Modification to Lift No-Build Restriction As a result of the no-future-development restriction (described in subsection 4 above), it was long understood that the 106 unit Island Creek project – already the largest multi-family residential development in Duxbury – could not and would not be further developed. Then, in 2005, plans were announced for further expansion at Island Creek if the Town were willing to negotiate a modification of the recorded Stipulation to delete the no-build restriction. (6/16/05 ltr. from J. Keith to R. Troy) On July 11, 2005, the Board of Appeals and Board of Selectmen each voted to petition the Housing Appeals Committee (“HAC”) to strike the restriction, subject to certain conditions. In their letter to the HAC dated July 12, 2005, the Selectmen observed that “without deleting this stipulation, no further beneficial development on the site can take place.” (7/12/05 ltr. Tuffy to Lohe) At that time, the clear understanding was that any expansion would involve up to 120 additional units on a five acre undeveloped portion of the site: “Duxbury Island Corporation has indicated their [sic] desire and ability to construct up to 120 additional apartment units on a five acre (+/-) portion of the site which is currently undeveloped. They propose to construct a sewer package plant to handle the sewage flow for all the new units as well. They also propose to hook up all of the existing units within the development . . .” (Id. at
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2; see also 12/11/08 Tr. at 63; 2/26/09 Tr. at 57; 11/12/09 Tr. at 78-93) Two months later on September 13, 2005, the Town through its counsel filed a Joint Motion to Modify the HAC decision in which the 1980 Stipulation had been entered. The text of the Joint Motion conditioned lifting the no-build restriction on connecting all buildings on site – existing and proposed – to a sewage treatment facility: “There shall not be any future development of any type on the site (additional units or buildings), except that the Board may permit additional units or buildings if, as a condition thereof, Duxbury Island constructs a single sewage treatment facility having a capacity sufficient to meet the needs of the entire site (East and West) and connects all buildings and units (existing and proposed) on the site to such sewage treatment facility.”) (9/13/05 Jt. Mot. to Modify Decision at 2) The stated reason in support of the modification was to “allow the Board to consider granting a comprehensive permit allowing the construction of additional units on condition that all units and buildings on the site, including those now-existing, be connected to a sewage treatment facility.” (Id. at 3) The HAC subsequently endorsed the modification. No other conditions of the Stipulation or Original Comprehensive Permits were changed. Nor did the Applicant request any further changes during the course of the public hearing on the Proposed Project. Other than the no-build restriction that was lifted in 2005, those other conditions and requirements imposed in 1980 remain the operative conditions of record that have governed development on the site to this day. (12/11/08 Tr. at 73-77) 2008 Project Eligibility Application, Town Comments and MassHousing Approval More than two years after the no-build restriction was lifted, the Applicant submitted the Project Eligibility (“PE”) Application on December 17, 2007, a copy of which was provided to the Town. In its review of the PE Application, the Town convened a Development Review Team (the “DRT”), comprised of representatives from the following Town departments: Assessing, Building, Conservation, Fire, Health, Highway, Natural Resources, Planning, Police, Public Works, and Water. The DRT met on January 4, 2008, and provided comments to the Selectmen on the PE Application. Among those early comments, the DRT expressed concerns about increased traffic, access to the site, four story height of the proposed buildings, priority habitat for rare species on site, water pressure for fire flow and increased use of emergency services at the assisted living facility. (1/4/08 DRT memo) A hydraulic analysis was conducted by the Town’s consultant, Stantec Consulting Services Inc., based on design plans dated July 10, 2007, and concluded that fire flows were within applicable guidelines and standards. (8/27/07 ltr. Soracco to Anderson) The DRT met again a year later, and reiterated many of the same concerns. (1/12/09 DRT memo) The Board of Selectmen responded formally to the PE Application with a letter to MassHousing dated January 14, 2008. The Selectmen’s comment letter echoes and amplifies many of the same concerns articulated by the DRT. Traffic was a major concern to the Town. The Selectmen “strongly suggest[ed] that MassHousing require as a condition of the issuance of a project eligibility letter that the proponent be required to pay for the design and installation of
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any required traffic mitigation, including signals” to provide safe access to the site. (1/14/08 ltr. Martecchini to Torres, at 2) The Selectmen’s comment letter also advocated for preserving the affordability of the existing units for as long as the development remains inconsistent with zoning, noting that the “Town may not support the current project if the affordability of the existing units is not preserved.” (Id. at 3) Finally, the Selectmen did not mince words about the 28,000 square feet of commercial space that had initially been part of the Proposed Project: “Absent a rezoning approved by Town Meeting, we believe that the application for commercial development submitted to MassHousing cannot be approved pursuant to a comprehensive permit.” At one point during the public hearing process, the Applicant submitted a warrant article to rezone a portion of the site to allow certain commercial uses by special permit, but later withdrew that article, which was never presented to Town Meeting. MassHousing issued a PE approval letter dated April 28, 2008 (the “PE Approval Letter”) for 238 additional units, which at the time included 64 condominiums. MassHousing’s provisional PE approval was subject to several conditions and prerequisites, some of which may no longer be applicable. The Board has repeatedly and unsuccessfully sought guidance from MassHousing on how changes to the Proposed Project since the PE Approval Letter might affect those conditions and prerequisites. Unless and until the PE Approval Letter is amended or superseded, the Board must continue to rely on the conditions and prerequisites contained therein. Upon any such amendment to the PE Approval Letter, any new or additional conditions or prerequisites imposed by MassHousing are hereby incorporated into this Decision. Final Approval from MassHousing, which confirms compliance with the conditions and prerequisites to PE approval, is a condition precedent to the issuance of any building permits. MassHousing rejected the Applicant’s appraisal, reducing the land value to less than half of what had been claimed. The Applicant’s proposed land value of $3,000,000 was found by a MassHousing commissioned appraiser to be more than double the actual market value, which was just $1,400,000 as of January 15, 2008. (Id. at 5, 9) Since that time, however, in subsequent correspondence between the Board, the Applicant and MassHousing, all parties now agree that because the value of the land already accrued to the prior project, the land acquisition value for the Proposed Project is zero ($0). (9/28/09 ltr Murphy to Gleason, at 2; 11/12/09 ltr Dailey to Murphy, at 2) September 2008 Application to Board Four and a half months after the PE Approval, ICVN submitted to the Board an application for comprehensive permit dated September 12, 2008 (the “Application”). The Application included, among other documents, preliminary plans, drawings, a traffic impact and access study (“TIAS”), a stormwater report, a preliminary construction budget, and the aforementioned appraisal. Throughout the public hearing process, additional submissions have been made by the Applicant and its consultants. A complete list of those documents, reports, memos and correspondence that comprise the written record of this matter is attached hereto as Ex. A and incorporated into this Decision. As those submissions indicate – and as the Applicant conceded during the public hearing
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– the Proposed Project that is the subject of this comprehensive permit decision differs from the initial Application. All of the plans and drawings submitted with the Application, and the various iterations of those plans and drawings that Applicant proposed during the public hearing process, have been withdrawn. (5/28/09 Tr. at 23) In their place, the Applicant has substituted, and the Board has accepted, the comprehensive permit plans and drawings dated December 3, 2009 as the sole and definitive plans for the Proposed Project. Because all right, claim or interest in any other version of the plans and drawings has been abandoned, relinquished and waived, we do not address them here, except to note that at one point the project included condominiums and four times as much commercial space (28,000 sq. ft.) as it does now (7,000 sq. ft.). Never has the number of units changed. As even the Applicant conceded, “density, per se, was not one of [the Board’s] issues. Period.” (11/12/09 Tr. at 82) A few additional points from the Application are notable (where relevant, references are also provided to the record of the public hearing where those issues are addressed): • • All 106 existing units are to be retrofitted with fire sprinklers. (9/12/08 Application, tab 1 at 5; 4/23/09 Tr. at 28) The wastewater treatment plant (“WWTP”) will serve all buildings on site (residential and commercial, new and existing) including the adjacent Church (Id. at 5; 12/11/08 Tr. at 78; 11/12/09 Tr. at 77) New stormwater drainage systems will replace the current one to serve both the new Proposed Project and the existing development. (Id., tab 5) The affordability of all 106 existing units will be extended in perpetuity or for the maximum period allowed by law. (Id., tab 6 at 9; 5/28/09 Tr. at 126) Approximately half of the three acre parcel that was deeded to the Church 30 years ago will be acquired by ICVN for $100,000. A portion of that parcel will be where the WWTP is located. (Id., tab 18; 10/9/08 Tr. at 31; 5/28/09 Tr. at 73-77) In order to release land and reconfigure collateral in the existing project, the mortgages for ICVE and ICVW were refinanced and/or restructured on November 5, 2008. (Leasehold Mortgage, Book 36538/Pages 215-248) The entire site has also been reconfigured to provide for it to be held in common ownership by a new master ground lessor (Island Creek Properties LLC) and for each of the three separate entities involved (ICVE, ICVW and ICVN) to enter into long term ground leases for their respective parcels. (Deeds, Book 36539/Pages 1-6; Notices of Ground Lease Book 36539/Pages 7-28) This new structure will allow separate financing for each of East, West and the Proposed Project. (Application tab 18; 10/9/08 Tr. at 37-40; 12/11/08 Tr. at 39-40; 2/26/09 Tr. at 101)

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A public hearing on the Application was held within a month of submission on October 9, 2008. After some initial disagreement over the completeness of the Application and the
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amount due for the filing and review fees, the Board and Applicant agreed that the purported 180 day time period to conduct the public hearing commenced on December 11, 2008. (10/9/08 Tr. at 89-90; 12/11/08 Tr. at 25) The public hearing was continued to the following dates: February 26, April 23, May 28, June 3, June 25, August 3, September 24, November 12, and closed on December 3, 2009. By letter dated February 3, 2010, the Applicant requested that the public hearing be reopened on February 25, 2010. The public hearing was reopened on that date, and continued to March 1, 2010, when it was closed again. The Applicant agreed in writing several times to extend the time to act on the application, each of which were duly recorded with the Town Clerk. Review and Comments from other Town Boards The Board is grateful for the extensive review and cogent comments provided by other Town boards and departments, all of which have been considered and most adopted by the Board: • In a memo dated September 30, 2008, the Duxbury Fire Department required each structure to have its own, independently operating fire alarm system, which must be brought up to code in the existing buildings. Prior to construction, sprinkler plans must be submitted to the Fire Department for approval, and hydrants must be operational. The Assisted Living building will have two means of access, defibrillators in each lobby, and a comprehensive evacuation policy must be submitted for approval prior to occupancy. In a memo dated January 13, 2009, the Conservation Committee found the draft plans inadequate to constructively review, noting that wetlands were not depicted and no data submitted to show groundwater elevation. The Applicant later filed a request to determine the wetland boundaries, and on April 28, 2009, the Conservation Commission issued an Order of Resource Area Delineation, which is valid for three years. Any work within the 100 foot buffer zone to the wetlands will require further application to, and approval from, the Conservation Commission. In response to a written referral from the Board on December 15, 2008 requesting comments, particularly on the assisted living facility, the Planning Board submitted a memo dated April 17, 2009 that outlines several concerns. First, the height of the thenproposed four-story buildings. Second, the amount and type of proposed commercial space, given that commercial uses are prohibited in the RC district. Third, traffic and access to the site, including whether the existing entrance is a way or driveway, which affects frontage and road construction. Fourth, inadequate parking and the placement of handicapped spaces. Fifth, the need for a medical waste removal policy for the assisted living facility. Sixth, the need for all pedestrian access to comply with applicable codes, including the Americans with Disabilities Act (“ADA”). Seventh, insufficient information shown on plans. The Planning Board also submitted a comment letter during the ENF process dated February 5, 2009. The Design Review Board (“DRB”) reviewed various iterations of drawings and plans. Their memos dated September 15, 2009 and February 24, 2010, contained many insights
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from which the project would benefit. The DRB echoed the Planning Board’s lament about the excessive height and massing of the then-proposed four-story buildings. The Board requested and the Applicant agreed to consider the comments from the DRB in preparation of the Final Plans. • In a memo dated September 22, 2009, the Highway Safety Committee highlighted the major traffic concerns, particularly left turns into the site entrance. The Committee reiterated the recommendation of the Massachusetts Executive Office of Transportation and Public Works that the Applicant evaluate the feasibility of a bypass lane or left-turn only lane be provided at the site entrance. The Committee had also submitted a comment letter during the ENF process to the Executive Office of Environmental Affairs dated January 29, 2009 outlining many of the same traffic and access concerns.

Comments/Requirements from other State Agencies In addition to the Town, the Board also received input from several state agencies, most of which was submitted in the context of responding to the Applicant’s Environmental Notification Form (“ENF”) dated December 17, 2008: • Massachusetts Historical Commission – determined that “there are no recorded historic or archaeological resources within the project area,” and required Applicant to “submit a copy of the soil profiles or any soil borings or percolation test results.” (12/3/08 ltr. Simon to Keith) Massachusetts Division of Fisheries and Wildlife – as part of the Natural Heritage & Endangered Species Program (“NHESP”), the Applicant must abide by certain protocols described in a construction mitigation plan designed to protect and avoid a direct take of Eastern Box Turtles. (2/10/09 ltr French to Bowles; see also 10/9/08 Tr. at 50-55) Massachusetts Department of Environmental Protection (Southeast Regional Office) – advised Applicant to consult with Duxbury Water Department “to ascertain whether adequate capacity exists” for landscape irrigation; also advised that a federal NPDES Stormwater Permit may be required from the EPA; and further suggested that Applicant meet with agency staff regarding the Ground Water Discharge Permit (“GWDP”) for the WWTP to address inspections, hydrogeological and engineering reports, “all of which are required prior to issuance of a GWDP.” (2/10/09 memo Stone to Eglington) Massachusetts Executive Office of Transportation and Public Works (“EOTPW”) – required Applicant to “revise their [traffic] capacity analysis, resubmit the project’s traffic study, and commit to advance the implementation and improvements at this location by providing MassHighway with the necessary 100% Plan, Specifications, and Estimates [“PS&E”] . . . [and] recommend that the proponent evaluate the feasibility of providing a bypass lane or an exclusive left-turn at the project site drive.” (2/10/09 memo Lucien to Mohler) Executive Office of Energy and Environmental Affairs (“EOEA”) – The Secretary of EOEA issued the ENF Certificate on February 20, 2009, incorporating many of the
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comments from the other state agencies, including those regarding the revised traffic report, PS&E and bypass lane, as well as additional testing to verify soil types and groundwater elevations. The Secretary also urged the Applicant to work with MassHighway and the Town to ensure that traffic associated with the project “is minimized and mitigated to the maximum extent feasible.” (2/20/09 ENF Certificate) The Board’s engineering consultant also submitted a persuasive ENF comment letter that highlighted many of the environmental and traffic-related issues and made a case for requiring an Environmental Impact Report (“EIR”). (2/9/09 ltr Houston to Bowles) Although several mandatory thresholds had been met or exceeded (impervious coverage, trip count, and parking), the Secretary declined to require an EIR. (Id. at 3) He may have misapprehended the nature of the Proposed Project -- which by statute requires a state subsidy -- because the ENF Certificate erroneously states: “The proponent is not seeking financial assistance from the Commonwealth.” (Id. at 2) But the Applicant assured the Board this misstatement had no bearing on the Secretary’s decision not to require an EIR. (2/26/09 Tr. at 114) Nevertheless, the Board will continue to monitor compliance with the conditions of the ENF Certificate. Peer Review Reports The Town of Duxbury does not employ an engineer, and the Board has only one parttime administrator. Therefore, under the Board’s authority pursuant to G.L. c. 44, § 53G, it relied on the assistance of outside consultants to help with the technical review of the Proposed Project. The selected consulting engineer, Thomas C. Houston (AICP, PE) and architect, William Keith Patterson (AIA), both of Professional Services Corporation, PC, were the lowbidders in the RFP process, and served the task admirably. The Board also retained a pro forma review consultant Richard H. Heaton, of H&H Associates LLP, whose efforts on behalf of the Town helped resolve of one of the major issues in contention. The Board has been assured that all of the comments of the various peer review reports have been incorporated into the Comprehensive Permit Plans dated December 3, 2009. Our peer reviewers produced five thorough engineering reports on the site plans (dated 2/18/09, 7/14/09, 8/27/09, 11/12/09 and 12/1/09), three architectural reports commenting on the proposed buildings (dated 4/9/09, 7/31/09, and 11/11/09), a traffic report (4/22/09) and a stormwater report (12/3/09). In addition to reports submitted with the Application (stormwater and traffic), the Applicant submitted supplemental reports in response to the peer reviews for engineering (5/22/09, 7/27/09, 11/30/09) and traffic (5/13/09, 6/24/09). In addition to these engineering and traffic reviews, the Board also received a report dated September 22, 2009 on the August 1, 2009 pro formas submitted in response to the Board’s request by letter dated July 24, 2009. Among the major issues identified by the Board’s peer reviewers and during the public hearing process were the following, each of which is addressed in more detail below: (1) wastewater, (2) commercial uses, (3) traffic and site access, (4) preserving the affordability of existing units, and (5) certain pro forma/financial issues. 1. Water and Wastwater: The Proposed Project, together with other buildings on adjacent properties, will use some 63,000 gallons of water per day, and will generate a like amount of wastewater. (2/26/09 Tr. at 26; 5/28/09 Tr. at 18) The percolation rate is reported to
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be approximately 2 min/in. There are no wetlands on site, but an active cranberry bog abuts the site to the north and east. As discussed above, treating the effluent will require a WWTP that connects all buildings on site – new and existing, including the Church. (9/12/08 Application, tab 1 at 6; 12/11/08 Tr. at 78; 11/12/09 Tr. at 77; 12/3/09 Tr. at 14, 41) In addition, as a condition of the PE Approval Letter, MassHousing required “[a]n acceptable plan to provide sufficient . . . sanitary sewer service to the units permitted on this site.” As a material condition to lifting the no-build restriction and the issuance of this comprehensive permit, all new and existing uses and units -- including the Church, existing units and businesses -- must be granted a final Groundwater Discharge Permit from DEP before any building permits may be issued. (Condition 116) The Applicant declined the Board’s request for hydrogeological testing or mounding analysis data to determine the direction of groundwater flow. (2/26/09 Tr. at 72) Instead, the Applicant deferred to the state GWDP process, but refused to fund a § 53G consultant to monitor that process. (Id. at 80-81) On several occasions during the public hearing, the Board was advised to impose a limit on phosphorous from the effluent in order to protect the adjacent cranberry bogs and other sensitive wetlands and aquifer recharge areas that abut the site. (Id. at 36, 81-86; 11/12/09 Tr. at 71) We were further advised by our consultant that “the only agency that has clear regulatory authority to do that would be the Board of Appeals.” (2/26/09 Tr. at 83) Accordingly, given the lack of information regarding groundwater flow, the need to protect adjacent, sensitive resources, and based on the expert advice of our consulting engineer, the Board will impose a limit of one milligram per liter (1.0 mg/l) of phosphorous in the effluent from the WWTP. (Condition 18) Effluent from the tertiary treatment system of the WWTP will evidently be potable enough to use for on site irrigation. (4/23/09 Tr. at 75-76) Therefore, it would seem that standard for phosphorous to protect the adjacent bogs should easily be met. Of course, DEP may set a more stringent phosphorous level standard. In addition to phosphorous and nitrate levels, the Board was also concerned about pharmaceutical and personal care products in the effluent – especially from the assisted living facility – leaching into sensitive wetlands and aquifer recharge areas that surround the site. As with phosphorous, DEP does not regulate pharmaceutical and personal care products in wastewater as part of the GWDP process. Accordingly, the Board and the Applicant have agreed to a Pharmaceutical and Personal Care Products Disposal Policy (“PPCP Policy”). Under the PPCP Policy, those in assisted living will be required to dispose of unused medications in special collection containers. (6/25/09 PPCP Policy) The professional staff will provide guidance and training as part of the overall medication management on how to properly dispose of unused medications. Applicant shall use best efforts to ensure that no pharmaceutical waste, solid or liquid will be flushed into the WWTP system. (Condition 19) 2. Commercial Uses: At no time did the Town encourage further commercial development at Island Creek as part of the c. 40B project. (12/11/08 Tr. at 72) As part of the compromise to settle the litigation over the original project in 1980, the two acres that front on Tremont Street were carved out for commercial development, which was separately permitted after the residential project was complete. (9/23/80 Stipulation at 4) The Application filed in mid-September 2008 “acknowledge[d] that the newly enacted
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Chapter 40B regulations eliminate any appeals by an applicant related to . . . commercial space,” and that the Board had “absolute control” over whether to include commercial space under this comprehensive permit. (9/12/08 Application, tab 13, at 6-7) Yet, just three months later, the Applicant sought to remove that local control by rezoning a portion of the site to Neighborhood Business 1 (NB-1) to allow commercial uses by special permit. At that point during the public hearing process, the Proposed Project called for some 28,000 square feet of commercial space. A plain majority of the Board was hard-pressed to consider either the amount or type (mostly medical offices) of proposed commercial space to be “ancillary,” as required by applicable regulations. (12/11/08 Tr. at 32) The Applicant later withdrew the rezoning article when it became clear that it did not have the two-thirds majority needed to pass at Town Meeting, and subsequently reduced the commercial space to 7,000 square feet. As the Applicant himself even conceded, “the 7,000 square foot commercial building is small enough so it’s not a major factor in this entire development.” (12/3/09 Tr. at 38) Accordingly, and consistent with the Board’s authority, the Board permits the 7,000 square foot building to be constructed as part of the Proposed Project, but declines to specify what commercial uses may be specially permitted as part of this comprehensive permit. According to the proposed phasing plan, the commercial building is the last to be built, which could be as late as 2018. (12/3/09 Phasing Plan at 2) The Board will entertain a special permit application under the Duxbury Protective Bylaw for non-residential uses at Island Creek upon substantial completion of the residential portion of the Proposed Project, including the WWTP, which must be operational and all residential units – new and existing – connected. 3. Traffic & Site Access: Traffic and access to the site have been major issues in the permitting of this project from the beginning. From the initial review by the Town’s DRT to the Selectmen’s comment letter to MassHousing’s PE approval to EOEA’s conditions to the ENF certificate, local and state officials have all registered concerns about the increased volume of traffic and need for safe site access to the project: • The Selectmen “strongly suggest[ed] that MassHousing require as a condition of the issuance of a project eligibility letter that the proponent be required to pay for the design and installation of any required traffic mitigation, including signals.” (1/14/08 ltr. Martecchini to Torres, at 2) As a condition of its PE approval, MassHousing required “A site entry and egress design solution that addresses traffic and parking impacts on the local street system, including . . . installation of traffic signals” (4/28/08 ltr. Gleason to Keith, at 2-3) Massachusetts EOTPW required Applicant to “revise their [traffic] capacity analysis, resubmit the project’s traffic study, and commit to advance the implementation and improvements at this location by providing MassHighway with the necessary 100% Plan, Specifications, and Estimates [“PS&E Submission”]. . . [and] recommend that the proponent evaluate the feasibility of providing a bypass lane or an exclusive left-turn at the project site drive.”
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(2/10/09 memo Lucien to Mohler) • The Secretary of EOEA conditioned the issuance of the ENF Certificate on the comments regarding the revised traffic report, PS&E Submission and bypass lane, and urged the Applicant to work with MassHighway and the Town to ensure that traffic associated with the project “is minimized and mitigated to the maximum extent feasible.” (2/20/09 ENF Certificate)

Tremont Street, also known as Route 3A, is a four lane state highway where average speeds and crash rates far exceed the state average. Under existing conditions, the level of service (“LOS”) for the intersections of the north- and southbound ramps of Route 3, as well as the corridor from Route 53 to Parks and Oak streets, is a dismal failure (LOS E or F). (8/28/08 TIAS at 6-8) Based on existing traffic levels, signals are already warranted according to MassHighway criteria. (5/28/09 Tr. at 50) The Proposed Project will result in over 2300 new vehicle trips into and out of the site each day. (5/13/09 VAI memo) Yet, the Applicant’s proposal called for no upgrade to control the two fold increase in traffic to the site, maintaining the site entrance with only a STOP sign. In spite of recommendations from our peer review consultant, the Town Selectmen, MassHousing, and EOTPW, the Applicant has steadfastly resisted every effort to provide signalized access. (6/24/09 Dirk memo; 4/23/09 Tr. at 105) Even the Applicant’s own consultant acknowledged the “large number of crashes” (5/28/09 Tr. at 39), and that having a signal would be “optimal” (id. at 96). But the three alternatives proposed by the Board’s traffic consultant (4/22/09 Houston memo at 9, 13; 4/23/09 Tr. at 105), were dismissed without any effort to reconfigure the site to provide signalized access. (6/24/09 Dirk memo) Nor has Applicant ever claimed that doing so would make the project uneconomic. To be sure, the Applicant has helped to facilitate the installation of signals at the northand southbound ramps to Route 3 by funding a Project Need Form (“PNF” dated April 2008), and a Project Initiation Form (“PIF” dated October 20, 2009). As recommended by the Board’s consultant (4/22/09 Houston memo at 11) and required by EOTPW (2/10/09 memo Lucien to Mohler), the Applicant has agreed to fund advancement of the PS&E design plans for those intersections at its own expense, estimated to be approximately $75,000. (5/28/09 Tr. at 49, 79; 11/12/09 Tr. at 14-16) In order to expedite the placement of the ramp signal project, the Applicant shall fund submission of the PS&E design plans within 60 days of this Decision. And the Applicant has also agreed to pay a portion of the estimated $550,000 cost to construct those signals based on the amount of increased traffic flow due to the Proposed Project, conservatively projected to be at least seven percent (7%). (5/28/09 Tr. at 66, 110-111; 4/1/08 VAI construction cost estimate) Although the optimal solution would be a signalized site entrance, which may well become necessary over time, the Applicant’s qualified traffic engineer – on whose opinion the Board relies – opined that safe and adequate access to the project site would result from signals at the ramps “by introducing gaps in the flow of traffic along Tremont Street.” (6/24/09 Dirk memo at 2) Unfortunately, the ramp signals were not able to be listed on the state’s Transportation Improvement Program (“TIP”) in 2009. We expect
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the spirit of cooperation between the Applicant and the Town to continue as we work together to bring those ramp signals to fruition. Our mutual hope is that by the time the project is built and ready for occupancy, the signals will be in place. Accordingly, the Board conditions the issuance of any occupancy permits on at least one of the two ramp traffic signals (i.e., Route 3 North ramp) being operational in order to provide safe access to the site. (Condition 146) 4. Preserving affordability of existing units: This was the main impetus that drove the Town and Board to lift the no-future-build restriction on Island Creek. Simply put, without preserving the affordability of the existing 106 units, there was no incentive for the Town to allow any further expansion. ICVE refinanced its mortgage and ICVW restructured its mortgage on November 5, 2008 – after the Application had been filed with the Board – in order to release and reconfigure collateral to develop the Proposed Project. (12/11/08 Tr. at 39-40; 2/26/09 Tr. at 101; 4/23/09 Marchant memo) Although under the new mortgages, only twenty percent (20%) of units in ICVE and ICVW must remain affordable thru November 5, 2023, as a material condition of lifting the Nofuture-build restriction, the Applicant has agreed to extend the affordability of all existing units in ICVE and ICVW in perpetuity or for the maximum period allowed by law. (Id.) Accordingly, the Board conditions its approval of this comprehensive permit on ICVE and ICVW executing and recording a restriction pursuant to G.L. c. 184, §§ 31-32 to maintain affordability of all existing units at Island Creek – East and West – in perpetuity or for the maximum period allowed by law. For purposes of this affordability restriction, the “maximum period allowed by law” shall include the period during which Section 8, Section 13A or other subsidies are available to operate the units at Island Creek. If those governmental housing subsidies become unavailable, the permit holder may petition for an amendment to this Decision to modify the affordability restriction. Given the Town’s paramount concern with preserving the affordability of the existing units, the Board will impose a condition that no affordable unit in the existing developments or the Proposed Project may be converted to market rate housing or removed from the Subsidized Housing Inventory (“SHI”), except upon amendment of this Comprehensive Permit and the Regulatory Agreement. (Condition 15) 5. Pro forma/financial issues: From the outset, the Board was concerned with the height and massing of the proposed four-story buildings, particularly as in-fill development in close proximity to the existing two-story townhouses that would have been dwarfed. The Applicant took the position that it could not lower the height because the loss of a single one of the 238 additional units would render the project uneconomic. (4/23/09 Tr. at 61) After unsuccessful efforts to break the height logjam, the Board requested by letter dated July 24, 2009, pro formas to substantiate the Applicant’s contention. The Board also received a report dated September 22, 2009 analyzing the Applicant’s initial pro forma, and revised, three-story building pro formas. After the pro forma review, the Applicant withdrew the four-story building proposal and substituted three-story buildings in lieu. The assisted living building, however, remains four stories. During the pro forma review, the Board had occasion to examine certain financial aspects of the Proposed Project that may have implications regardless how many stories are built. The review process raised as many questions as it answered. The Board put some of
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those unanswered issues to the subsidizing agency, MassHousing, in a letter dated September 28, 2009, including site acquisition cost, ground rents, and cost allocation of the WWTP, clubhouse and pool. (9/28/09 ltr Murphy to Gleason) In response, MassHousing deferred to its Final Approval, but indicated that the Applicant had conceded that the site acquisition cost should be $0 and that no ground rents would be paid or accrued as a cost for the project. (11/12/09 Dailey ltr. to Murphy) A second round of correspondence yielded no further clarification. (1/22/10 email Smith to Sullivan; 2/8/10 email Murphy to Smith; 2/25/10 ltr Dailey to Keith; 2/25/10 ltr Dailey to Murphy) The Board addresses these issues in more detail in the conditions below. (Conditions 158-166) The mortgages for ICVE and ICVW were refinanced or restructured in order to release and reconfigure the collateral thereunder. (Leasehold Mortgage, Book 36538/Pages 215248) In addition, the entire site has also been reconfigured to provide for the fee interest to be held in common ownership by a new master ground lessor (Island Creek Properties LLC) and for each of the three separate entities involved (ICVE, ICVW and ICVN) to enter into long term ground leases for their respective parcels. (9/3/08 ltr Sullivan to Keith; Deeds, Book 36539/Pages 1-6; Notices of Ground Lease Book 36539/Pages 7-28) Before the reconfiguration, East had 6.81 acres, and West had 14.21 acres. After the reconfiguration, East was reduced to 5.4 acres, West to 1.78 acres, and the remaining 13.84 acres is now North. (Id.) This new structure will allow separate financing for each of three portions of the project. (Id.; 10/9/08 Tr. at 37-40; 12/11/08 Tr. at 39-40; 2/26/09 Tr. at 101) The Applicant’s ownership structure differs for the various portions of the project. The master ground lessor is now Island Creek Properties LLC, whose manager is JWK Manager, Inc. The ownership of ICVE and ICVW is identical: each is a Massachusetts limited partnership whose general partner is Duxbury Island Corp. (.1%), and whose limited partners are John W. Keith (25.9%), Duxbury Island LLC (37%), and T. Duggan Investments LLC (37%). The Applicant, ICVN, is structured as an LLC, whose manager is JWK Manager Inc., the same manager as the master ground lessor. The assisted living facility is to be developed as a joint venture among the Applicant, Winn Development, and William Casper. Accordingly, given that the Board’s repeated written requests for clarification from MassHousing were not addressed, all affiliated entities – Island Creek Properties, LLC, Keith Properties Inc., ICVE, ICVW, ICVN, Winn Development and their constituent members and William Casper – will be considered related entities for purposes of cost certification review. (Condition 162) Upon request, the Applicant shall provide such information about the ownership interest in the Proposed Project as the Board may reasonably request. Decision After the close of the public hearing, on March 11, 2010, the Board voted unanimously (3-0) to approve a comprehensive permit for the Proposed Project as shown on the following plans, and subject to the Conditions of Approval described below: (i) “Comprehensive Permit Plan for Island Creek Village”, dated
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August 29, 2008 (last revised December 3, 2009), in 29 Sheets, prepared by Seacoast Engineering Company, Cavanaro Consulting and Grady Consulting, L.L.C., (ii) “Island Creek Village North, Duxbury, Mass. Comprehensive Permit, Architectural Drawings”, dated December 3, 2009, in 24 Sheets, prepared by The MZO Group; and (iii) “Longwood Place Duxbury, MA Island Creek Village North Comprehensive Permit Architectural Drawings”, dated December 3, 2009, in 12 Sheets, prepared by The Architectural Team. Conditions of Approval General The Comprehensive Permit shall be subject to the general requirements set forth below.
1. Except as otherwise specified in this Decision, the Project shall conform to the

Comprehensive Permit Plans entitled (i) “Comprehensive Permit Plan for Island Creek Village, 30 Tremont Street, Duxbury, MA dated 08/29/2008, last revised 12/03/2009 containing 29 sheets prepared by Seacoast Engineering Company, Cavanaro Consulting, and Grady Consulting, LLC that are signed and sealed by Darren M. Grady, PE; (ii) “Island Creek Village North, Duxbury, Mass. Comprehensive Permit, Architectural Drawings”, dated December 3, 2009, in 24 Sheets, prepared by The MZO Group; (iii) “Longwood Place Duxbury, MA Island Creek Village North Comprehensive Permit Architectural Drawings”, dated December 3, 2009, in 12 Sheets, prepared by The Architectural Team; and (iv) with the Final Design Site Plans as set forth in Conditions through . Any revision or modification of the approved Comprehensive Permit Plans requires written approval of the Board, which shall not unreasonably be withheld.
2. The waivers from the Duxbury Protective Bylaw listed on the attached Ex. B are granted

and incorporated into this Decision.
3. The Board hereby incorporates each of the conditions of the MassHousing PE Approval

Letter dated April 28, 2008 in this Decision. When MassHousing issues a final PE Final Approval, the superseding conditions are hereby deemed incorporated.
4. Prior to any site disturbance, construction or the issuance of any building permit, the

Applicant shall obtain from MassHousing a new PE determination (whether in the form of a letter or otherwise) that conforms to the approved Comprehensive Permit Plans, which differ from the proposal at the time of the PE Approval Letter.
5. The locus includes Lot 4a containing approximately 1.5 acres of land (being a portion of

existing Lot 4 containing approximately 3.0 acres of land) which was the subject of a Purchase and Sale Agreement between the First Baptist Church of Duxbury and Keith
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Properties, Inc. dated May 4, 2007. Prior to any site disturbance, construction, or the issuance of any building permit, the Applicant shall submit evidence of site control in the form of a recorded deed or a duly executed extension of the P&S Agreement.
6. This Permit is conditional upon execution of a Regulatory Agreement by MassHousing

and the grant of subsidy funding through the “80/20 Program,” the “Elder Choice Program,” and/or the “New England Fund” Program. Execution and recording of such Regulatory Agreement, the grant of subsidy funding by MassHousing or other approved lender through applicable programs, and compliance with all terms and conditions of the Regulatory Agreement are to be complete prior to any site disturbance, construction, or the issuance of any building permit. No building permit may be issued until the terms of the Regulatory Agreement and PE Approval Letter have been complied with in full.
7. All work authorized by this Comprehensive Permit shall be commenced within three (3)

years after this Comprehensive Permit becomes final, as provided in 760 CMR 56.05(12), and completed within five (5) years thereafter, subject to extensions for good cause based on customary force majeure events.
8. Except as otherwise specifically provided herein, where this Decision provides for the

submission of plans or other documents for approval, the Board will use reasonable efforts to review and provide a written response within thirty (30) days following submission. The thirty day time period to review submissions that require a consultant does not begin until the consultant’s fee has been fully funded in accordance with G.L. c. 44, § 53G.
9. The total number of dwelling units, each of which shall be dwelling units restricted for

rental occupancy, shall not exceed 214 and the number of bedrooms (as defined by the Duxbury Board of Health regulations or the state Building Code, whichever contains a more restrictive definition of “bedroom”) shall not exceed 314 (for the purposes of this tabulation studio units are counted as one bedroom units) based upon the following:

OneTwoThreeBedroom Bedroom Bedroom & Studio Units Units Units New Apartment Units
*

Total Affordable Total Units Units Bedrooms

36

72

0

108

[22 or 27]*

180

Bracketed numbers in this condition and conditions 11, 13 and 15 reflect the requirements of the two possible subsidy programs. The subsidy program will govern the applicable number. 15

New Townhouse Units Assisted Living Units Total

0 90 126

0 4 76

12 0 12

12 94 214

3 [19 or 24] [43 or 54]

36 98 314

10. Upon completion of the Proposed Project, 214 units shall meet all of the criteria for

inclusion in DHCD’s “Subsidized Housing Inventory” (SHI).
11. No less than [43 or 54] new units shall be low- or moderate-income units in compliance

with Department of Housing and Community Development (DHCD) requirements, and eligible to be listed on the SHI.
12. The new affordable units shall be evenly distributed throughout the site and throughout

each of the categories of new units listed in Condition .
13. For all new dwelling units authorized by this Decision, affordable housing units shall be

constructed contemporaneously with affordable units during each phase of construction, such that Certificates of Occupancy for new affordable units shall at all times comprise a minimum of [20 or 25] percent of the total Certificates of Occupancy issued for new dwelling units
14. The exterior and interior appearance and quality of the affordable units shall be

indistinguishable from the market rate units.
15. An affordable housing restriction shall be recorded senior to any liens on any land or

dwelling unit that requires [43 or 54] new units to remain affordable in perpetuity or for the maximum period allowed by law, in accordance with the Regulatory Agreement, which shall be approved by the Board and enforceable by the Town.
16. The entity or person responsible for operation and management of the WWTP shall be

duly licensed to operate and manage such wastewater treatment facilities. The WWTP shall be operated and maintained in accordance with a Master Operating Agreement, which shall be submitted to the Board for review and approval.
17. Upon the filing of the GWDP application, groundwater modeling shall be submitted to

the Board (along with a copy of the GWDP application) indicating the path of effluent discharged from the WWTP to the project boundary.
18. The maximum permitted concentration of total phosphorous in effluent discharged to and

upgradient of the Soil Absorption System shall be no greater than1.0 milligrams per liter (mg/l), unless a lower concentration is imposed by DEP, or unless the ambient phosphorous levels detected by groundwater monitoring testing at the downgradient property line are greater.
19. In the assisted living facility, all pharmaceuticals, medications and personal care

products, whether prescription or over the counter, shall be disposed in special collection containers, per the Pharmaceutical and Personal Care Products Disposal Policy (“PPCP Policy”) dated June 25, 2009. Applicant shall use best efforts throughout the Proposed
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Project to ensure that no pharmaceutical waste, solid or liquid will be flushed into the WWTP system.
20. The Applicant shall grant to the Town of Duxbury, its employees, officials, and agents

right of entry to the locus to observe the work, maintain access, conduct emergency repairs, and complete construction upon default by the Applicant and said right of entry shall be in the form of a restriction running with the land and recorded in the Registry of Deeds.
21. The Applicant shall indemnify the Town of Duxbury, its employees, officials, and agents

from liability for any damage or injury cased by any act, omission, or negligence on the part of the Applicant, its employees, agents, subcontractors, beneficiaries or trustees with regard to this Project. Required Improvements Prior to construction, the Comprehensive Permit Plans shall be revised and approved by the Board to incorporate the requirements set forth below. – General
22. Site coverage shall not exceed 15 percent in the 100 foot buffer zone to wetlands.

Development work within the buffer zone adjacent to the wetlands and pond will need to be approved by the local conservation commission.
23. [Intentionally omitted] 24. Plans for a toddler playground and a playground suitable for use by elementary school

age children, both accessible for persons with disabilities, shall be designed by a landscape architect registered in the Commonwealth of Massachusetts. Such playgrounds shall provide for the installation of age-appropriate recreation equipment as determined by the Town of Duxbury Recreation Director.
25. Way finding signage shall be installed and maintained.

– Drives, Parking, and Walks
26. Vertical granite curb type VA4 shall be provided for all work within the right-of-way of

Tremont Street.
27. The planting strip shall be eliminated and a monolithic haunched sidewalk having a

reveal of 6 inches and a minimum width of 8 feet shall be provided along Alignment 2 from Station 2+40 Left to Station 11+40 Left.
28. The width of sidewalks shall be 5 feet in heavily trafficked areas, and 4 feet elsewhere, as

shown on the Comprehensive Permit Plans.
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29. The length of vertical curves where the algebraic difference is less than 3 shall be

shortened in accordance with the recommendations of the Board’s peer review engineer to eliminate flat areas and potentially poor drainage.
30. Parking ratio shall be 1.73 spaces per dwelling unit in accordance with approved plans. 31. All structures in the Proposed Project, including associated walkways and parking area,

shall be handicapped accessible in accordance with AAB standards and other applicable code and regulations.
32. The loop trail around the property shall be handicapped accessible in accordance with

AAB standards and other applicable code and regulations, including 521 CMR 22.00. – Stormwater Management
33. The design of Basins A, A1, and C shall be revised incorporating design requirements

based on supplemental soils and groundwater data as set forth in Conditions 63-65 and shall comply with the following: a. Basis shall provide two feet of separation to seasonal high groundwater, b. Basis shall accommodate the 100-year frequency storm event with one foot of freeboard, and c. Basis shall drain within 72 hours following cessation of precipitation.
34. The stormwater management system shall comply with the DEP Stormwater

Management Regulations, and the Applicant shall comply with Best Management Practices in the design and operation of the stormwater management system, in accordance with applicable guidelines and regulations.
35. The lowest invert elevation of any catchbasin upgradient of any infiltration Basins A and

C shall be one foot above the 100 year design water surface elevation which is 65.75 for Basin A and 64.0 for Basin C.
36. The lowest invert elevation of any catchbasin shall be set one foot above the 25 year

design water surface elevation which is 62.69 for Basin 1A.
37. The design water surface elevations required by Conditions and shall be increased, if

necessary, based upon the requirements of Condition and Conditions through . – Utilities
38. Details shall be shown to provide one point of connection to the wet well at the sanitary

sewer pump station.
39. All proposed buildings shall have fire alarm and sprinkler systems in accordance with

applicable code and regulations and subject to Fire Department review and approval.
40. Except during fire flow drawdown, the water distribution system shall provide a

minimum static pressure of thirty-five (35) psi.
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41. PIV valves shall be provided where required by the Fire Department or applicable codes. 42. The location of all private utilities including natural gas, electric, telephone and cable

service shall be shown on drive sections and in plan view.
43. Electric, telephone and cable lines and appurtenances shall be installed underground.

– Landscaping and Planting
44. All on-site drives shall be planted with suitable species of salt-tolerant shade trees located

at 40 feet on-center and the location of tree plantings shall be coordinated with site lighting fixture locations.
45. Native plants shall be used exclusively. 46. Plants included on the Department of Agricultural Resources’ Massachusetts Prohibited

Plants list shall not be planted on site.
47. Shade trees and ornamental trees shall have a minimum caliper of 2½ inches at the time

of planting except shade trees planted along on-site drives shall have a minimum caliper of 3 inches at the time of planting. Coniferous trees shall have a minimum height of 8 feet at the time of planting.
48. Buffer plantings shall be provided in those areas along the perimeter of the site where

existing vegetation has been removed. Supplemental plantings under mature trees shall be provided where necessary for screening.
49. Requirements for turf areas shall include a 5 inch thick loam layer and deep rooted

grasses requiring minimal irrigation.
50. Requirements for planting beds shall include a 5 inch thick cedar bark mulch layer. 51. Infiltration basin plantings shall consist of native and naturalized grasses and wildflowers

that are tolerant of prevailing hydrologic and soil conditions and that provide for high nutrient uptake, sediment removal, and habitat value.
52. Screening shall be provided for all dumpsters and shall consist of evergreen trees and

shrubs and opaque cedar board fencing.
53. Trails in open space areas shall have a stable surface and grading complying with AAB

requirements for accessibility and shall have trailhead and directional signage.
54. A plan showing the location of all trees over 8 inches in caliper within the limits of work

shall be submitted for the Board’s review and approval, which shall not unreasonably be withheld.
55. A plan shall be submitted for the Board’s review and approval that designates trees to be

protected and preserved, including construction details for physical barriers to be placed
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at the drip line of trees to be preserved. The Board or its agent shall be accorded the opportunity to identify additional trees to be protected in the field prior to construction.
56. Limit of clearing and limit of work lines and construction details of physical barriers to

be placed along the limit of clearing line. – Site Lighting
57. Site lighting shall comply with IESNA requirements and recommendations and shall

provide a minimum illumination level of 0.5 foot-candle on driveways, parking areas, and walkways, excepting that a minimum of 2.0 foot-candles shall be provided at the intersection of Alignment 1 and Tremont Street and the intersection of Alignment 3 and Tremont Street.
58. Pedestrian paths in open space areas need not be lighted. 59. Lighting poles shall be residential scale units as proposed by the Applicant except that

poles having a maximum height of 18 feet may be used at the intersections on Tremont Street.
60. Lighting fixtures shall incorporate “dark skies” principals and shall have no direct

upward projecting light and shall have no point sources of light visible in off-site locations.
61. Light trespass shall be limited to 0.5 foot-candle at property lines with non-affiliated

properties.
62. There shall be no light pollution in accordance with approved lighting plan.

Supplemental Testing and Design Supplemental testing and analysis is required for the stormwater infiltration basins as set forth below.
63. One test pit or soil boring shall be provided in infiltration basins A1 and C extending to

elevation 51 or refusal. Two test bits or soil borings shall be provided in Basin A extending to t elevation 52. One monitoring well shall be placed in Basins A, A1 and C which shall be read a minimum of twice in the months of March, and April.
64. Test pits should be provided for each roof drain recharge facility location. Alternatively

soils can be logged during construction. Permeability tests shall be conducted for the initial roof drain systems and subsequent roof drain system when there is a change in soil texture as determined by the engineer and the Board’s agent. Any such field tests should be witnessed by the Board’s agent.
65. A mounding analysis shall be provide for Basins A, A1, and C.

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Final Design Site Plans Final Design Site Plans that conform to the requirements set forth below shall be submitted for Board review and approval at least 30 days prior to the start of construction.
66. The Final Design Site Plans shall be based upon the “Comprehensive Permit Plan for

Island Creek Village, 30 Tremont Street, Duxbury, MA dated 08/29/2008 and last revised 12/03/2009 which shall be revised and updated to be fully consistent with all requirements of this Decision including the requirements of Conditions through above. The plans revisions pursuant to Conditions 22 through 65 and Conditions 66 through 80 may be combined into a single set of revised plans that shall be deemed to be both the final Comprehensive Permit Plans and the Final Design Site Plans.
67. The Final Design Site Plans shall be conformed drawings incorporating all conditions and

requirements of permitting agencies having jurisdiction, and shall be submitted prior to construction. The Applicant shall submit an application to modify the Comprehensive Permit if required to incorporate revisions required by the permitting agencies. Any subsequent request to modify the Final Design Site Plans may constitute a substantial change to the project within the meaning of applicable regulations and require a public hearing.
68. Applicable sheets of the Final Design Site Plans should signed and sealed by the

Professional Land Surveyor, the Civil Professional Engineer of record, and the Registered Landscape Architect of record.
69. The organization and content of the Final Design Site Plans shall comply with the

following: a cover sheet, general notes sheets, typical driveway sections, layout sheets, grading and drainage sheets, utility (water, sewer, gas, cable utilities) sheets, site lighting and photometric sheets, traffic signage and pavement markings sheets, landscape sheets, driveway plan and profile sheets, construction phasing sheets, sedimentation and erosion control sheets, and construction details (civil, traffic, lighting, and landscape) sheets, and sheets incorporating the Board’s Decision.
70. The Final Design Site Plans shall clearly indicate the limits of utilities to be abandoned

and shall specify requirements for plugging and abandoning utilities. Separate demolition and site preparation sheets shall be provided if necessary to clearly depict the work. Septic systems shall be pumped and abandoned in accordance with Board of Health requirements. Requirements for structure demolition shall be provided.
71. The Final Design Site Plans shall include a complete legend. 72. The Final Design Site Plans shall include an updated zoning table. 73. The Final Design Site Plans shall include sedimentation and erosion control sheets

showing the location and construction details for erosion controls, construction entrance tracking pads, soil stockpile areas, and construction staging areas, refueling areas, and storage areas.
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74. The Final Design Site Plans shall show the location and construction requirements of all

private utilities including natural gas, electric, telephone and cable service and shall be based upon receipt of final approvals and permits from the respective utility companies.
75. The Final Design Site Plans shall show the location, elevation, profile, section, and

materials of all retaining walls based upon a foundation engineering report based upon site specific geotechnical investigations and shall comply with requirements for issuance of a building permit.
76. A landscape plan signed by a registered landscape architect shall be submitted to the

Board for review and approval and shall incorporate one or more sheets that depict the following: a. Overall planting plan that includes a demarcation of clearing and the limit of work. b. Planting plans for drives showing shade trees and lighting fixture locations for coordination purposes. c. Planting plans for Basins A, A1, and C. d. Plans of walkways in open space areas. e. Tree protection and preservation plans f. Prototype planting plans for each class of building that includes shade trees, ornamental trees, shrubs, and groundcovers. g. Prototype screening plans for dumpsters depicting plantings and fencing. h. Planting details for coniferous and deciduous shade trees, ornamental trees, and shrubs. i. Planting schedules listing the quantity, size, height, caliper, species, variety, and form of trees, shrubs, and groundcovers. j. Construction details.
77. The Final Design Site Plans shall include or incorporate a list of the waivers from

requirements of the Duxbury Zoning By-Laws submitted by the Applicant on December 3, 2009 (a copy of which is attached hereto). Any subsequent request for additional waivers from the Duxbury Zoning By-Law or other local rule or regulation will constitute a substantial change to the project within the meaning of applicable regulations and require a public hearing. Under the terms of the 1980 Stipulation, no waivers can be granted from the Duxbury Board of Health rules and regulations.
78. The Final Plans shall include a Building Code review by a qualified consultant to be

chosen by the Town and paid for by the Applicant. The Applicant shall fund the review of the Final Plans, in accordance with G.L. c. 44, § 53G, prior to submission.
79. The Final Design Site Plans shall reference and require compliance with this Decision. 80. Copies of the Final Design Site Plans shall be submitted including 6 full size copies, 6

half size copies, one reproducible copy on mylar, and one AutoCAD file using layering and symbol conventions acceptable to the Board.

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Final Easement Plans Final Easement Plans incorporating the requirements set forth below shall be submitted to the Board for review and approval at least 30 days prior to the start of construction.
81. Final Easement Plans suitable for recording shall be provided depicting easements for

utilities and access, including rights to pass and repass, among the First Baptist Church, 20 Tremont Street, 40 Tremont Street, 42 Tremont Street, Island Creek Village East, Island Creek Village West, Island Creek Village North, and all other entities that exist or may be created as part of the Proposed Project.
82. A report showing the location, dimensions, purpose, status, ownership, and beneficiaries

of all easements and covenants including those that are existing, those to be abandoned, and proposed within the project area or on contiguous properties to the benefit of the project.
83. [Intentionally omitted] 84. Final easement documents suitable for recording shall be provided for the easements

indicated on the Final Easement Plans as set forth in Condition above. Final Documents Final Documents shall be submitted to the Board for review and approval at least 30 days prior to the start of construction as set forth below.
85. Incorporation documents shall be submitted setting forth the form and organization of

each entity responsible for ownership and maintenance of the project or components thereof.
86. A Landscape Maintenance Plan shall be provided that requires the following:

a. Prohibits the use of potable water from the Duxbury water system for irrigation. b. Provides reasonable limits for fertilizer application c. Limits the application of pesticides and herbicides to licensed professionals as part of an integrated pest management plan.
87. An affirmative marketing plan with a DHCD approved local preference policy shall be

submitted for the Board’s review and approval prior to any lottery for the affordable units. Any such lottery shall be valid for up to one year and no longer. Required Permits
88. The Applicant shall submit copies of all applicable state and federal permits, applications,

approvals, disapprovals and any correspondence related thereto, including: a. A Massachusetts Department of Environmental Protection Groundwater Discharge Permit which is required for the proposed on-site wastewater treatment plant
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b. A MassDOT State Highway Access Permit which is required for access to both Route 3 (indirect) and Route 3A (direct) c. An Order of Conditions from the Duxbury Conservation Commission that is required for work in buffer zones d. An NPDES Construction Phase Permit which is required based upon disturbance of more than one acre of land.
89. The Proposed Project shall comply with all permit requirements, and any applicable

rules, regulations or certifications of the following: a. Massachusetts Endangered Species Act, G.L. c. 131, § 23; 321 CMR 10.00 b. Massachusetts Wetlands Protection Act, G.L. c. 131, § 40-40A, 310 CMR 10.00 c. Massachusetts Environmental Policy Act, G.L. c. 30, § 61-62H d. Massachusetts Public Shade Tree Act, G.L. c. 87 e. Massachusetts Scenic Roads Act, G.L. c. 40, § 15C, as adopted by the Town f. Massachusetts Historical Commission, G.L. c. 9, § 26 et seq.
90. No permits of any kind will be issued by the Town until and unless all fees that are due

and owing have been paid in full. Site Plan Modifications for Adjacent Properties Site plan modifications are required for existing adjacent properties as set forth below.
91. Site plan modifications are required for 20 Tremont Street, 40 Tremont Street, 42

Tremont Street, and the First Baptist Church of Duxbury in order to properly coordinate with layout, access, parking, grading, stormwater management, and utility improvement within the project site.
92. The Applicant represents that 20 Tremont Street, 40 Tremont Street, and 42 Tremont

Street are owned by entities currently controlled by the Applicant and represents that the owners of 20 Tremont Street, 40 Tremont Street, 42 Tremont Street request that the site plans for these sites be modified in accordance with the modifications indicated on the approved Comprehensive Permit Plans. The Applicant shall submit a letter from a duly authorized representative of the First Baptist Church of Duxbury that authorizes the modifications indicated on the approved Comprehensive Permit Plans.
93. Subject to compliance with all other conditions of this Decision, the Board finds that the

site plan modifications indicated for 20 Tremont Street, 40 Tremont Street, 42 Tremont Street, and the First Baptist Church of Duxbury are minor in nature and therefore no public hearing is required prior to action on the required modifications.
94. The Board grants approval of the modifications to the site plans for 20 Tremont Street, 40

Tremont Street, 42 Tremont Street and the First Baptist Church of Duxbury to allow layout, access, parking, grading, stormwater management, and utility improvements as indicated on the approved Comprehensive Permit Plans. The Board requires that these modifications be constructed.
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95. The Applicant is responsible for construction of improvements on the property of the

First Baptist Church of Duxbury, 20 Tremont Street, 40 Tremont Street, and 42 Tremont Street. Offsite Improvements The Applicant shall provide design submissions for off-site intersection improvements as set forth below.
96. The Applicant shall prepare and submit to MassDOT Highway Division a 25 Percent

Design Submission for Route 3A Intersection Improvement Project providing traffic signal control and the Route 3 and Route 3A highway ramps substantially as indicated in the Project Need Form within 60 days of the date of this Decision. The Applicant shall provide response to comments to MassDOT Highway Division within 60 days. The Applicant shall provide copies of all correspondence and communication with MassDOT Highway Division until the process is completed. The Applicant shall prepare and submit to MassDOT Highway Division “100 Percent Design PS&E Submission” for Route 3A Intersection Improvement Project within 60 days of receipt of comments on the 25 Percent Design Submission.
97. The width of the sidewalk shown on Tremont Street within the site frontage shall be

increased to 5 feet.
98. The Applicant shall show sidewalks on the north side of Tremont Street within the limits

of the Route 3A Intersection Improvement Project described in Condition . Should this sidewalk be approved by MassDOT as part of the Route 3A Intersection Improvement Project, then the sidewalk shown on Tremont Street within the site frontage should be extended to meet the limit of sidewalk construction proposed under the Route 3A Intersection Improvement Project. Prior to Site Construction The Applicant shall submit information to the Board as set forth below prior to the start of any land clearing, land disturbance, excavation, or the installation of any site improvement or utility whether on site or off site and any work on a building or structure.
99. The Final Plans as set forth in Conditions to 80, the Final Easement Plans as set forth in

Conditions -84, and the Final Documents as set forth in Conditions to 87 must be approved by the Board and recorded in the Registry of Deeds.
100.

The Board has approved a phasing plan showing each phase of the project and the schedule and sequence for each phase of the overall project, consistent with the Phasing Plan submitted to the Board dated December 3, 2009. Any subsequent change to the phasing plan may constitute a substantial change to the project within the meaning of applicable regulations and require a public hearing.

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101.

The Applicant shall furnish a copy of a municipal lien certificate or other evidence indicating that all taxes, assessments and charges due on the locus have been paid. The Applicant shall submit for review and approval by the Duxbury Police Department a “Maintenance of Traffic Plan” for Tremont Street, including traffic control devices and uniformed traffic officers. A detailed plan showing or describing the limits of vegetative clearing and construction activity, sedimentation and erosion controls, soil stockpiling area, construction staging, refueling and fuel storage areas, and tree protection measures for all specimen trees over 8” in caliper within the limits of work, which shall be flagged by the Board’s agent prior to any work. The Applicant and the site general contractor shall attend a preconstruction conference, including Town Department heads, Fire Chief and Police Chief. The Applicant shall furnish the names, licensing, and contact information for all principal contractors and subcontractors and for all field engineers, construction managers, surveyors, and other responsible personnel who will be working on site. The Applicant shall designate a duly licensed individual as Construction Manager with overall responsibility for all on-site construction and shall provide complete contact information for the Construction Manager including 24/7 emergency contact information. A detailed construction phasing plan shall be provided prior to construction, which must be kept updated throughout construction. [Intentionally omitted]

102.

103.

104. 105.

106.

107. 108. 109.

MassHousing or FHLBB member bank has provided a written commitment to provide the funds necessary to complete the overall Project, and that at least twenty-five percent (25%) of those funds constitute the required “subsidy”, as defined in 760 CMR 56.02. If MassHousing does not provide funding, at least twenty-five percent (25%) of the financing must be through the New England Fund (“NEF”) through a member bank of the Federal Home Loan Bank of Boston (“FHLBB”). No transfer of that NEF financing will be allowed for at least five years without MassHousing’s prior approval. A legally binding instrument in a form that conforms to this Comprehensive Permit has been executed and recorded in the Registry of Deeds, which provides that the terms of this Decision are enforced in perpetuity. A Monitoring Agreement in a form that conforms to this Comprehensive Permit has been executed and recorded in the Registry of Deed. Neither CHAPA nor South Shore Housing may serve as the Monitoring Agent, and the Applicant shall so request.
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110.

111.

112.

A Regulatory Agreement in a form that conforms to this Comprehensive Permit shall be executed and recorded in the Registry of Deeds, which provides that the affordable units shall be restricted as affordable in perpetuity, or for the maximum period allowed by law, to households complying with applicable area median income limits, designates the Monitoring Agent (not CHAPA or South Shore Housing), identifies the affordable units, and establishes for the affordable units both the initial rents and the basis for subsequent rent increases.

Prior to Building Permit Issuance Prior to building permit issuance, building permit applications shall be submitted and approvals shall be obtained as set forth below.
113. The building permit application shall include complete sets of architectural and

engineering drawings and specifications that are signed and sealed by a Massachusetts Registered Architect or Professional Engineer as appropriate and shall include foundation plans, floor plans, roof plans, elevations, sections, structural plans, HVAC plans, plumbing plans, electrical plans, exterior finishes and all other information required to obtain a building permit in accordance with the Massachusetts Building Code.
114. Copies of all building permit applications shall be filed with the Board. 115.

No building permit shall be issued until the Board notifies the Building Inspector in writing that the submitted plans comply with this Decision. issued by DEP that provides for all new and existing uses and units on site -- including the Church, existing units and businesses -- to be connected to the WWTP. This condition may be modified as an insubstantial change to this Comprehensive Permit if the Board determines in its sole and absolute discretion that each of the following benchmarks has been satisfied:

116. No building permit shall be issued until a final Groundwater Discharge Permit has been

The Applicant has submitted an application for a Groundwater Discharge Permit to DEP within ninety (90) days of the date this Decision is first filed with the Town Clerk; The Applicant has expeditiously pursued the Groundwater Discharge Permit application, including promptly responding to DEP comments; DEP has issued guidance to the Town or Applicant regarding the likelihood and timing for granting a Groundwater Discharge Permit; and All other applicable conditions of this Comprehensive Permit are in full compliance.

• • •

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Prior to Building Construction The Applicant shall complete access and infrastructure improvements sufficient to serve the building as set forth below.
117. For each phase of the Project, all drives to and within that phase of the Project shall be

completed to binder course and hydrants shall be operational. During Construction Work during construction shall comply with the requirements set forth below.
118. No work shall be initiated until the Board provides a written Notice to Proceed. 119. The construction general contractor shall maintain copies of the Final Design Site Plans

and this Decision on-site at all times.
120. The work shall comply in all material respects with the requirements of this Decision

and the Final Design Site Plans.
121. Site access from Route 3A during construction shall comply with all requirements of

the approved “Maintenance of Traffic Plan”. Applicant shall pay for all costs associated with said plan, including any police details required to maintain safe site access during construction.
122. The Applicant shall compensate the Town of Duxbury for the cost of observation of

construction of site infrastructure improvements as indicated on the Final Design Site Plans by Town personnel or the Board’s agent. The Applicant shall deposit the sum of $10,000.00 prior to construction to be placed in an escrow account maintained by the Town. The Board will notify the Applicant when the balance in the escrow account falls below $5000.00. The Applicant shall deposit an amount to be determined by the Board within 14 days following receipt of notice. The Board’s agent shall be retained by a “Request For Proposal,” which the Applicant shall have the right to review and suggest comments that the Board shall consider in good faith.
123. The Applicant shall pay all building, electrical, plumbing and related permit and

inspection fees from the then-current fee schedule as applied to the proposed cost based on RS Means.
124. The Building Department shall at its option retain the services of a Registered Architect

or other qualified professional to review the plans and determine compliance with applicable codes. The Applicant shall pay the greater of the building permit fee normally required or the actual cost of the professional services invoiced to the Town.
125. Construction shall be limited to the hours of 7:00 AM to 5:00 PM on weekdays and to

the hours of 8:00 AM to 5:00 PM on Saturday and no work shall be performed on Sundays and legal holidays.
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126. Construction fencing, barricades, lighting, signs and other safety devices shall be

provided at work areas in accordance with industry standards and as directed by the Board’s agent or the Building Commissioner.
127. No roofwater recharge facility or subsurface stormwater infiltration facility shall be

installed until soil and permeability test data has been provided indicating that the facility shall empty within 72 hours following cessation of the storm event.
128. The Applicant may elect to perform such tests during construction with tests witnessed

by Town personnel or the Board’s agent.
129. The construction manager shall provide 48 hours notice and shall schedule and

sequence the work to facilitate observation of construction by Town personnel or the Board’s agent. No succeeding construction operation shall be initiated until the prior operation has been observed. That for each construction phase, stormwater detention and retention basins shall be constructed, stabilized and vegetated prior to initiating construction of any other improvements. Town personnel or the Board’s agent shall observe erosion control devices and safety devices prior to beginning other work, utility lines and structures prior to backfilling, excavations at extra depth prior to backfilling, pavement subgrade at completion, subgrade beneath embankments at completion, pavement gravel base at completion, and installation of pavement.
130. The Applicant shall comply with any “Cease and Desist” order issued by the Board, its

designee or the Building Inspector/Zoning Officer should he determine that construction violates the requirements of this Decision. Construction may proceed once the Applicant demonstrates that corrective action has been taken ensuring compliance with this Decision.
131. Proper control of the construction zone shall be provided during non-construction hours

to prevent injury to children and others to the satisfaction of the Board.
132. The Applicant shall submit shop drawings, materials certificates, manufacturer’s

literature, and as-built information for site improvements sufficient to allow the Board or its Agent to determine compliance with this Decision and standard construction procedures.
133. Layout shall be established prior to any construction. Erosion controls shall be placed

prior to earth disturbance and shall be adjusted and maintained throughout construction. Infiltration basins or temporary stilling basins shall be completed prior to any other site work. All land disturbance shall be stabilized within 30 days.
134. Once initiated, construction shall progress through to completion as continuously and

expeditiously as possible and in accordance with the construction sequence and timetable approved.
135. Adequate sanitary facilities shall be provided for all construction personnel.
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136. Dumpsters or other facilities shall be provided for proper removal of trash and debris. 137. The work shall be performed in compliance with all applicable Town, state and federal

laws and regulations regarding noise, vibration, and dust and with Town requirements for street openings and use of Town roads and utilities.
138. Construction procedures shall incorporate measures for construction noise abatement

including monitoring mufflers, selection of construction methods, use of smallest practicable construction equipment, utilizing low level back up alarms, minimizing equipment idling, locating noisy equipment far from residences, keeping engine housings closed, and providing power early to minimize generator use. Rock crushing equipment not be allowed.
139. Erosion and sedimentation controls shall be provided in accordance with the approved

plans. Erosion controls shall be installed prior to any construction activity. The erosion controls be increased, supplemented, modified, adjusted, and maintained as required to effectively control sediment and erosion and minimize damage to wetlands and developed properties. Tremont Street at the site entrances and elsewhere as needed, shall be swept daily on each day of active sitework or when required in order to remove sediment and debris.
140. Dust control measures shall be provided as indicated and in accord with best

management practices to minimize fugitive dust including wetting down exposed excavation areas and providing crushed stone surfaces along haul roads and access roads.
141. Construction equipment shall not be parked or stored within one hundred feet (100') of

any drainage channel, drainage inlet, or wetland area or within 50 feet of any property line. Maintenance of construction equipment involving transfer of fluids and fuels shall be conducted in areas away from drainage channels and inlets and wetland buffer areas. Contractor’s on-site personnel shall immediately notify the Town with follow on notification in writing of any hazardous material spill, regardless of size.
142. Access shall be maintained to all occupied buildings as all times. 143. All stumps, brush, and other debris resulting from land clearing or grading and any

demolition debris from structure demolition shall be removed from the locus and no stumps or other debris shall be buried on-site.
144. The site shall be kept reasonably clean at all times and cleanup shall be performed daily

and upon completion of each phase of the work.

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Prior to a Certificate of Occupancy Prior to the issuance of any Certificate of Occupancy, the project shall comply with the requirements set forth below.
145. The Applicant shall furnish documentation verifying compliance with operational

checkout and testing requirements for the wastewater treatment plant as set forth in the DEP Groundwater Discharge Permit, and a Master Operating Agreement for the operation and maintenance of the Waste Water Treatment Plant and other shared facilities and infrastructure.
146. At least one of the two traffic signals at the ramp intersections of Routes 3 and 3A (i.e.,

Route 3 North ramp) shall be operational. This condition may be modified as an insubstantial change to this Comprehensive Permit if the Board determines in its sole and absolute discretion that each of the following benchmarks has been satisfied:
• • •

Condition 96 has been complied with; The Applicant’s share of construction costs has been paid in full and on time; MassHighway has issued guidance to the Town or Applicant regarding the likelihood and timing for constructing traffic signals at the Route 3 & 3A interchange ramps; and All other applicable conditions of this Comprehensive Permit are in full compliance.

147. All site improvements for the applicable phase in the Comprehensive Permit shall be

completed, including all utilities to serve each unit and infrastructure necessary for safe access for that portion of the Proposed Project.
148. The Applicant shall provide an interim As-Built Plan showing locations, grades,

accessible inverts, materials, thickness, and related information for all site improvements, roadways, stormwater management facilities, and utilities.
149. Alternatively, access, parking, and utilities shall be provided for an approved phase of

the project consisting of all required utilities, stormwater management systems, lighting, curbing, walkways, landscaping, and pavement to binder course, and landscaping provided; however, that the top course of paving may be deferred for up to 24 months and landscaping may be deferred until the beginning of the next planting season if a Certificate of Occupancy is sought during winter conditions provided that security is provided in the amount to ensure completion of all work.
150. Surety shall be provided in an amount and form reasonably determined by the Board to

be sufficient to ensure proper completion of all site improvements and site infrastructure, including a construction cost contingency of 35 percent and an inflation factor (the “Construction Surety”). The Construction Surety is separate and in addition
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to the bond assessed to ensure compliance with cost examination regulations and guidelines, 760 CMR 56.04(7)(c).
151. The form and amount of the Construction Surety shall be determined by the Board in

accordance with local rules and regulations of the Town of Duxbury, and may include naming the Town as a dual obligee or additional insured.
152. The amount of security may be adjusted from time to time to reflect changes in

prevailing construction costs and in such case reasonable additional security shall be provided by the Applicant within 30 days following notice. Failure to provide additional security in a form acceptable to the Board within 30 days of notice shall be deemed a default and allow the Board to call the surety following notice and hearing.
153. The Applicant may from time to time petition for a reduction in the amount of security

based upon work satisfactorily completed and the Board shall act on said request within 30 days.
154. No temporary certificates of occupancy will be issued.

Prior to Final Completion Prior to final completion, the project shall comply with the requirements set forth below
155. An As-Built Plan shall be submitted and a Certificate of Compliance shall be submitted

from the engineer of record confirming compliance with the approved plans and this Decision and noting each exception thereto. Receipt of the Certificate is a prerequisite to full surety release. Following Completion Upon completion of work required under the Comprehensive Permit, the project shall comply with the requirements set forth below
156. A parking demand study shall be conducted upon completion of construction and rent

up in order to assess adequacy of parking spaces and whether to implement reserve parking areas.
157. The Applicant shall submit plans for approval and shall construct additional parking

spaces as needed based upon the parking utilization study.
158. The Project shall be limited to the profit allowed under the Regulatory Agreement or a

maximum of ten percent (10%) of total development costs, whichever is lesser (the “allowable profit”). Any profit that is above the allowable profit shall be returned to the Town. The profit limitation may be enforced by the Town or its agencies, boards or commissions at anytime.

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159. The Applicant shall provide the Board with a copy of all financial documentation

required by the Regulatory Agreement or submitted to the Project Administrator, including, but not limited to, the annual and final cost certifications.
160. As specified by the subsiding agency in the April 28, 2008 PE Approval Letter, the

rental, assisted living, and commercial portions of the Project will be reviewed as independent projects and the portions must be regulated and compliance determined separately. All operating costs for common areas (waste water treatment plant, roads, clubhouse, and other areas) will be allocated to the respective independent projects, either new or existing, based on usage.
161. Because the land value has previously been accrued to the original comprehensive

permit, in conducting the cost certification review of this project, site acquisition cost will be calculated at zero ($0).
162. All affiliated entities of the Applicant – Island Creek Properties, LLC, Keith Properties,

Inc., ICVE, ICVW, ICVN, Winn Development, and their constituent members, and William Casper – are related entities.
163. The developer’s cost certification shall be examined by an independent certified public

accountant in accordance with all applicable rules, regulations and guidelines. It is the duty of the Applicant to provide or cause others to provide any and all information needed to perform an examination in accordance with those standards.
164. Prior to acceptance of the certified cost report, the Applicant shall request the Project

Administrator to deliver a copy of the Developer CPA’s report to the Board with the Project Administrator’s determination of the developer’s compliance with the limited dividend requirement. The municipality shall have the option of evaluating the report for accuracy (e.g., absence of material errors), applying the same standards as set forth herein for a period of 90 days after receipt which may be extended if requested by the Town of Duxbury.
165. The Applicant shall pay all costs incurred by the Town to review and audit the results of

the cost certification and shall make an advance payment to the Town to be used to retain qualified experts to review the cost certification.
166. Receipt and approval of the final cost certification is a prerequisite to release of the

Construction Surety. In Perpetuity The project shall comply in perpetuity with the requirements set forth below
167. The Applicant or its successors and assigns shall be responsible for managing the

Project and ensuring that the terms and conditions of this Decision are enforced.
168. The site shall remain forever private and the Applicant shall be responsible for

operation, maintenance, and repair of the drives and parking, dwelling units, common
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areas, infrastructure, stormwater management facilities, landscaping and amenities, snow plowing, trash removal, and site lighting at no cost to the Town of Duxbury.
169. The wastewater treatment plant serving the project site, the First Baptist Church of

Duxbury, 20 Tremont Street, 40 Tremont Street, and 42 Tremont Street shall remain forever private and the Applicant or its agent shall be solely responsible for proper operation, maintenance, and repair of the wastewater treatment plant in strict compliance with all requirements of the Department of Environmental Protection Groundwater Discharge Permit.
170. Any change in the terms and conditions of the Groundwater Discharge Permit shall be

subject to review by the Board for consistency with this Decision. Any material inconsistency shall be deemed a substantial change to this Comprehensive Permit, and require a public hearing to determine whether the amendment to the terms and conditions of the original Groundwater Discharge Permit require an amendment to this Decision.
171. New clubhouse and other facilities shall be open to all Island Creek residents. 172. The common mail facilities will be located in the club houses. 173. Existing dumpster locations serving the existing residences shall be maintained at or

near their currant location.
174. Only slow release or organic nitrogen lawn fertilizers shall be used throughout the

Proposed Project to help limit nitrogen in groundwater.
175. All on-site drives should be posted with “No Parking Any Time” (R7-1) signs and the

parking prohibition shall be enforceable by fines provided in the lease agreements.
176. On-site drives within 100 feet of the proposed school bus stop shall be posted with “No

Standing Any Time” (R7-4) signs and the restriction shall be enforceable by fines provided in the lease agreements.
177. Restrictions on left turns entering and exiting the southerly site drive for 20 Tremont

Street and related channelization are indicated on the drawings and shall be enforceable by fines provided in the lease agreements.
178. The one way counterclockwise circulation at the Assisted Living Facility is indicated on

the drawings and shall be enforceable by fines provided in the lease agreements.
179. The site shall comply with the Final Operation and Maintenance Plan provided under

this Comprehensive Permit and with any Operation and Maintenance Plan approved under any Order of Conditions issues for the site.
180. The Applicant shall ensure that the Assisted Living Facility is continuously served by

non-emergency ambulance service. In the event that the Town is called upon to provide emergency medical service (“EMS”) to the Assisted Living Facility, the Town
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shall bill the resident at a rate normally billed by the Town for similar services to the general public or to other property owners. To the extent a resident’s bill for EMS services is not covered by insurance or paid by the resident, the Applicant or its designee shall indemnify the Town to ensure that all costs involved in providing EMS services (including ambulance transport and “lift and assist” calls) to the residents of the Assisted Living Facility are borne by the Assisted Living Facility.
181. This Comprehensive Permit is non-transferrable and non-assignable without the written

consent of the Board, such consent not to be withheld unreasonably. Conclusion Any departure from the representations made by the Applicant will be cause for review of this decision if the Board finds, after notice and hearing, that such departure is significant, as determined by the Board in its sole and absolute discretion. This decision herein may be amended, revised, or revoked by the Board, acting on its own motion or on the motion of the Planning Board, Director of Inspectional Services, or of any interested person, after notice and hearing. The Board hereby certifies that copies of this decision and all plans referred to therein have been or shall be filed forthwith in the office of the Town Clerk. For this decision to become effective, a copy of said decision and notice thereof must be recorded by the Applicant at the Plymouth County Registry of Deeds and must bear the certification of the Town Clerk that twenty (20) days have elapsed and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied. A certified copy of said recording must thereafter be filed with the Board of Appeals. Any person aggrieved by this decision of the Board of Appeals may file an appeal pursuant to the provisions of G.L. c.40A, § 17, and c. 40B, § 22. Such appeal must be filed within twenty (20) days of the filing of this decision in the office of the Town Clerk. If no appeal is taken within 20 days, the Clerk will so certify. By the Zoning Board of Appeals of the Town of Duxbury, March 12, 2010

Dennis A. Murphy, Chair Copies to: Applicant Board of Appeals Development Review Team Director of Inspectional Services Duxbury Board of Assessors Duxbury Board of Health Duxbury Board of Selectmen Duxbury Clipper
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Duxbury Conservation Commission Duxbury Design Review Board Duxbury Fire Department Duxbury Highway Department Duxbury Historical Commission Duxbury Housing Authority Duxbury Parks Department Duxbury Planning Board Duxbury Planning Director Duxbury Police Department Duxbury Public Library Duxbury Reporter Duxbury Town Clerk Duxbury Town Counsel Duxbury Water Advisory Board Planning Board of Kingston Planning Board of Marshfield Planning Board of Pembroke Planning Board of Plymouth

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