The preliminary approval for the plan, however, was contingent on the developer addressing several points that were raised by the commissioners relating to street width, easements for adjoining properties, and adherence to the town’s new stormwater regulations.

David Dombert, president of Gaithersburg-based Main Street Homes, and Steven Hutchins, the development’s project manager from Georgetown, Del.-based Morris and Ritchie Associates Inc., discussed the plans for the development and responded to questions posed by the commissioners.

Dombert said the plan had not substantively changed since it was first submitted in 2009.

However, several issues had been raised since that time. One concern, raised by William and Charlotte Dennis, and William and Susan Ferster, was that a planned open space buffer between their homes and the proposed development could restrict future development of their properties. The landscape design would leave them without road frontage, which would be required to subdivide the property at any point in the future, the homeowners said.

Another concern was that the State Highway Administration wanted the width of the development’s roads expanded from the planned width of 24-feet to 30-feet, to allow for emergency vehicles entering the proposed community and traffic clearance.

In a May 6 staff report, Berlin Planning and Zoning Director Chuck Ward, recommended that only a preliminary site plan be approved if the commission’s concerns were adequately addressed. He recommended that the commission not make a final determination that planned unit development provisions of the Town Code had been met until the final site plan was approved.

The report also said, the staff recommended the commission condition any approvals with the requirement that other applicable approvals are secured by the applicant. The other requirements the development plan must also meet included the county’s Forest Conservation Act, an erosion and sediment control plan and construction requirements for sewer, electric, infrastructure construction and stormwater management designs.

Regarding the effect of the development on adjoining properties, provisions under the town code require that structures and open spaces within a development’s site plan not adversely affect adjacent properties. Vice Chairman Ron Cascio and Commissioner Newt Chandler asked the developer whether he would be amenable to granting an easement through a section of open space that would give the neighboring property owners road access to the other side, where the plans included a town-owned street inside the boundaries of the development.

Ward said since the area in question was open space, granting an easement might pose a few complications, such as additional requirements that would have to be  met under the town’s subdivisions code. For example, if the open space area in the developer’s plan was left in place, the adjacent properties might still be blocked from access to the street, if the developer intended to maintain ownership of the open space between the internal street and the short boundary line with Dennis and Ferster.

Dombert said that he was open to finding a legal agreement that served the purposes of the development, town and adjoining properties.

Chandler also asked about height and density issues, specifically if there were height restrictions and whether there would be other living spaces allowed in the development. Dombert said the residences were primarily two-story dwellings, although some might have attics, and the garages were single-story structures. Ward noted the code only allowed one dwelling per lot.

Dombert requested help from the town regarding SHA’s concerns with the width of the street entrance. He proffered the idea that town officials might intercede by writing to SHA on behalf of keeping the entrances narrow.

Cascio asked how parking needs would be accommodated on narrower streets and whether a landscaped planter island in the middle of the intersection would meet the mutual needs of the development and SHA. Dombert said the streets were not set up for parking because the garages were designed for the rear of the housing units. But the discussion seemed moot, since Ward pointed out that if the development is approved it will be the town that decided whether street parking would be allowed.

On the issue of the planting strip, Dombert said the design of the development was intended to be a subtle and low impact addition to the surrounding community. Medians, he said, give the impression something large and new. He seemed more amenable to an entrance that gradually narrowed from 30-feet at the cross street to 24-feet a short distance inside.

Also, the commissioners discussed current plans that called for a street that would dead end at the last home on that street. During the discussion, it was suggested that a cul-de-sac would serve a similar purpose. Dombert appeared to be hesitant to agree to build a cul-de-sac at the location.

Near the end of the meeting, Cascio made reference to a waiver letter the developer received from EA Engineering, Science, and Technology Inc., the town’s storm water consultant. Cascio told the developer, “This causes me some heartache.” Referring to Berlin’s new stormwater management plan, Cascio said, “It pains me that this property will come up under the old regs.”

New stormwater management rules are set to begin on July 1 and will include billing other town businesses a fee based on the square-footage of water impervious space that exists on their properties.

Dombert said at the time the preliminary plans for the development were being compiled, stormwater standards were being handled by the county. He said the waiver was granted based on the understanding that the plans were 5 percent to 10 percent away from final approval at that time.

In an April 22 town council meeting, Councilmember Lisa Hall said she had been assured that no grandfathering of existing properties would be permitted under the new stormwater policy. Town Administrator Anthony Carson said the waiver, which was approved by stormwater engineering contractor Darl Kolar of EA Engineering, was still in affect when the stormwater program was approved.

In a Dec. 21, 2011 letter, Kolar told Jeffrey Harman of the architectural firm Becker Morgan Group the approval “[I]s based on the fact that the number of lots and planned density was established and the project’s stormwater management review was substantially completed by Worcester County prior to May 4, 2010 and occurred prior to the Town of Berlin initiating its own stormwater management plan review program. The project is required to obtain stormwater management approval through the Town of Berlin under the pre-Stormwater Management Act of 2007 requirements.”

Kolar further said “[T]his Administrative Waiver will expire on May 4, 2013 unless final project approval has been obtained to include any and all phases or sections.” It would expire on May 4, 2017 if final project approval was received prior to May 4, 2013, Kolar said, adding that all authorized construction would be required to be completed by the May 4, 2017, deadline.

In a May 10 interview, Kolar said the stormwater approval was more of a review process than a formal letter, which he said did not exist. “It’s more like they have addressed all the comments,” he said, estimating that the discussions generated several iterations of comment and responses. The developer was required to submit and resubmit the environmental site design, until the stormwater consultants’ requirements and questions had been addressed.

Kolar said the final project approval was granted just under the wire on May 3, “When we informed them that our comments were satisfied.” He said the developer actually went beyond what was required. While the development was grandfathered under stormwater management regulations that existed before 2010, by incorporating rain gardens, it included features that were reviewed against the new stormwater regulations, Kolar said.

He said it was a misconception that there was a waiver from stormwater management requirements. “They still have to meet stormwater management requirements,” he said, whether under the old regulations or new ones.