By Carol Britton Meyer

An issue relating to the developer’s right to install a water line along an access easement on adjacent private property could delay the comprehensive permit process for the proposed 12-unit condominium development at 25 Ipswich Street in the Rockaway Annex neighborhood.

**ILL AT EASEMENT.** At Tuesday night’s meeting, Hull Town Counsel Brian Winner told the zoning board of appeals that unanswered questions about the developer’s ability to use an easement for utility access ‘touches the fundamental feasibility’ of the Rockaway Annex condominium plan.

In a recent letter to town officials involved in reviewing the project, 20 Ipswich Street owner Derek M. Paris objected to the developer’s plan to install utilities on his property and any other improvements or alterations.

Paris’ property, which was originally part of a larger lot of land surrounding the former Veterans of Foreign Wars post, was sold to him and his wife with an easement for public access.

In his letter, Paris said he’s aware that “the small road is open to public access,” but his deed states that he has to allow access to abutting parcels only and that he is opposed to the utilities, “as there is no mention of this in my deed.”

This issue came up during the fifth lengthy zoning board of appeals hearing Tuesday night on the proposed four-story, 12-unit project in the Rockaway Annex neighborhood. Three of the units would be affordable.

Chair Patrick Finn read the letter submitted by Paris, who attended the hearing. The letter is posted on the ZBA’s page on the town’s website, along with other documents and plans.

The ZBA supported Town Counsel Brian Winner’s suggestion that he and his legal team meet with developer Alan Mckenzie’s attorney, Walter Sullivan, to try to resolve this complicated issue.

Click here for plans, correspondence and other details on this project

Winner noted that the attorneys’ role isn’t to determine “who has rights to what property – we’re not the land court,” or to address abutter concerns.

Housing consultant Dean Harrison, representing Mckenzie, a Hull resident, and engineer Tim Powers provided an update on the project this week. This included a revised building design, landscaping, sewer system details, a rain garden to collect surface runoff, and a blasting plan update.

Powers said that the blasting of 2,700 cubic yards of ledge would take about two weeks and involve about 100 trucks to remove those materials. Outstanding issues include stormwater management, waivers to be requested by the developer, and the easement issue.

The comprehensive permit process, more commonly known as Chapter 40B, allows developers to circumvent most local regulations in exchange for an affordable housing component if the town has less than 10% of its housing units designated affordable. Hull’s current percentage of affordable units is 1.6%, according to the state’s formula.

According to Harrison, the Weir River Water System requested that the developer loop the water service for the development through the easement, which connects with North Truro Street.

“With this outstanding issue, it would be difficult to get financing,” he said. “We will work it out to the benefit of all.”

Winner read a preliminary legal opinion into the record of the meeting, noting that the easement appears to be improperly filed at the Plymouth County Registry of Deeds. He said that while legally there is a potential solution, this doesn’t mean it could be executed, or completed within a particular timeline.

“In the abstract, there is a pathway to potentially go forward, but it’s up to the applicant, if interested. I imagine this will be a topic of discussion among the attorneys,” he said.

Winner added that time is of the essence “because I think it gets to a very fundamental component of this project. If they don’t have the rights to proceed along this easement the way they are suggesting they do, that touches the fundamental feasibility of that proposal. We need an answer to this sooner rather than later.”

Also, Paris wrote in his letter, “I have seen the plans for the project and am very disappointed that anyone would consider allowing someone to build a road on my property which would come within inches of my home and disrupt my family’s life for the foreseeable future. … I will fight this to the end.”

At the hearing, Paris said he’s a “good neighbor,” taking no issue with allowing access to abutters or emergency vehicles.

“I heard from my neighbors that they were going to rip up my property,” he said. “There has been no communication from the developer.”

Finn responded that Paris has “a right to protect” his property and that after the attorneys consult with each other, perhaps there will be an adjustment to the current plan.

Harrison noted that “if it gets to the point where we can’t get this issue resolved within the timeframe for the project, MassHousing [which is involved with approving plans under Chapter 40B] will look at this as a title and not a ZBA issue.”

This means that if the project is approved by the ZBA, the board could set a condition requiring that the developer have a clean title to the easement.

“I’m not suggesting we go that route yet,” Harrison said. “Let’s get the minimum number of attorneys in the room [together to talk about this issue].”

In response, Finn asked, “But [what] if [the] number 20 Ipswich St. owner isn’t in the room? How will this get resolved?”

Harrison said that while he can’t answer for the homeowner, “if he has an attorney, he’s more than welcome I assume to join or to represent himself.”

North Truro Street resident Dan Sullivan read a letter submitted to the ZBA that day and signed by a number of abutters asking that the zoning board deny the comprehensive permit, citing concerns about the “overwhelming scale” of the project and blasting, among others.

Finn expressed appreciation for the developer’s willingness to appear before the design review and planning boards, although not required under the comprehensive permit process, and for completing four sets of drawings, including revisions.

“Time is money,” he said.

The next hearing is scheduled for February 18.

A replay of the meeting will be available on Hull Community Television’s broadcast channels and on demand at www.hulltv.net.

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