ORLEANS — You might call it the nuclear option.
Should the board of selectmen decide to refer the F. W. Webb project to the Cape Cod Commission for review, and should the commission accept, all local permitting would be suspended.
In a memo responding to the board’s request for an update on the proposed 38,329-square-foot development bordering Route 6A near the Brewster town line, Director of Planning and Community Development George Meservey said the project had been approved by the site plan review committee and was still being considered by the zoning board of appeals and the Old King’s Highway regional historic district committee.
The project did not meet the guidelines for a mandatory referral to the commission, Meservey noted, because it would not create 10,000 square feet of additional commercial space beyond the size of the existing commercial buildings at what’s known as the Underground Mall. Webb’s plans call for demolition of those buildings. “However,” Meservey added, “any regulatory board, or the board of selectmen, may make a discretionary referral of the project and ask for its review as a DRI,” or development of regional impact.
“The board of selectmen did this when Orleans Toyota wanted to add a new dealership on (Route) 6A,” Town Administrator John Kelly told the selectmen May 6, “and we worked with Jack Carter at the time and moved it over (to O’Connor Road). If the board would like to have further discussion, I could schedule George Meservey next week (May 13). We could discuss having a vote of the board to refer to the Cape Cod Commission, which has additional authorities beyond what the town has.”
That opportunity appealed to the selectmen, including Kevin Galligan. He said he’d viewed the March 4 zoning board meeting on the project and asked Kelly to remind regulatory boards that “they can have access to town counsel or other help… We’ve gotta tell these boards they have support in the form of town resources. They may be getting themselves in hot water on this one.”
The Cape Cod Commission can accept discretionary referrals of developments which may have regional impacts and present one or more concerns from a list that includes environmental impact; impact on existing infrastructure; physical size and the site; traffic; numbers of new residents or employees generated; location near a waterway, public land or municipal boundary; extent of facilities required for development; importance to economic development in the region; effect on the resources of neighboring communities; and “other factors of regional concern as they may arise.”
The commission “need not accept every request for DRI review made under a discretionary referral, and has on occasion declined to accept such requests in the past (generally, discretionary referrals are requested infrequently),” Jonathon Idman, the CCC’s chief regulatory officer, wrote in an email. “In distinction to a ‘mandatory’ DRI referral, the CCC must hold a public meeting to consider a discretionary referral request received and vote at the meeting whether to accept the referral for DRI review… The CCC needs to find in accepting such a referral for review that a project would pose regionally significant development effects per the concerns articulated in Section 12 of the CCC Act. There is also discretion in the referring board to make, and in the CCC to accept for DRI review, a ‘limited’ discretionary referral, i.e., a request for DRI review limited to certain issues like water resources, transportation, etc.”
Idman wrote that “as a practical matter, a town that is interested in making a discretionary referral should not wait too long in the local permitting process, after all or most of a project’s required local permits have been obtained, to make a referral. Further, any local permits issued for a project prior to a discretionary referral might have to be modified to comport with a DRI decision.”
The only permit F. W. Webb has secured is a certificate of demolition from the OKH to take down the two buildings on the site. The company needs a certificate of appropriateness for the new development from that committee, as well as three special permits from the zoning board to exceed allowed building size for a retail use, to provide less than the required parking, and to develop on a lot that extends into two zoning districts.
Whether the planned use is retail or wholesale is the crux of an argument by resident Lawrence Diaz against allowing the development in a General Business zone. In a letter to the selectmen, Diaz stressed that he is “not against F. W. Webb setting up shop in Orleans,” but considers the development a wholesale/warehousing operation that is allowed nowhere other than the Industrial zone.
In an interview in January with The Chronicle, Bob Mucciarone, F.W. Webb’s chief operating officer, confirmed that the proposed Orleans location would offer wholesale merchandise for contractors as well as retail showrooms for homeowners. At a zoning board meeting March 4, Ben Zehnder, a local attorney representing the project, argued that the development qualified as a retail use because it did not involve warehousing materials to be sold at retail centers elsewhere. The board discussed a memo from Building Commissioner Thomas Evers that concluded the project “did not completely fall under the wholesale/warehouse definition.”
“There’s no wholesale, is there?” ZBA chairman Michael Marnik asked. “The way you explained it would elevate it out of Mr. Evers’s concerns.” “I looked at your zoning bylaw and went to the dictionary,” Zehnder replied. “I don’t believe this is a wholesale operation, at least as (described) in your bylaws.”
To counter that, Diaz wrote to the selectmen that Webb’s own website refers to the company as “the largest wholesale supplier of plumbing, heating, cooling, PVF (pluming, valves and fittings) and industrial products in the Northeast.” He called the amount of warehouse and storage space at the proposed facility “tremendous,” with its outdoor storage area “over twice as much as the outdoor storage area of the Webb facility in Hyannis, a site located in an industrial zone.”
Diaz warned about weighing a potential increase in tax revenues against “the very negative consequences of allowing a clearly industrial-use-and-industrial appearing facility to be installed at one of the main gateways to the town...”