Published March 27, 2019

By DAN TOMASELLO

LYNNFIELD — Town Counsel Tom Mullen gave an overview of proposed changes to the Planned Village Development District (PVDD) agreement to the Board of Selectmen on March 20.

Mullen said he has been working with Town Administrator Rob Dolan and National Development attorney Robert Fishman in order to revise the PVDD for MarketStreet Lynnfield.

“This is an attempt to update the development agreement between the town and National Development to deal with the issues that would be raised if Town Meeting approves allowing a theater within the National Development project,” said Mullen. “The town made a number of requests for changes in the last few days, and National Development has agreed to all of them.”

Mullen said the revised agreement stipulates that MarketStreet would still be 475,000 square feet.

“The mix of uses would be changing,” said Mullen. “It goes from 395,000 square feet of retail space and 80,000 square feet of office space, which are the current maximum requirements, to 375,000 square feet for retail, restaurant and recreation, 60,000 square feet for office and 40,000 square feet for the theater.”

If approved, Mullen said the cinema would be allowed to operate Sunday through Wednesday 10 a.m. to 10:30 p.m. He said the theater’s hours for Thursday through Saturday would be 10 a.m. to 11:30 p.m.

All shows or all events would end by 1 a.m., said Mullen.

Mullen said the revised PVDD would “fix the location” for the theater and the parking garage. National Development has proposed building the theater next to Gaslight and the parking garage behind Wahlburgers.

“The agreement provides that no certificate of occupancy shall be issued unless several things happen,” said Mullen.

If the project moves forward, Mullen said the revised PVDD mandates that a parking garage of “at least” 300 spaces be constructed. He also said the revised agreement requires National Development to follow through on its promises to make traffic improvements. He said the revised PVDD would require National Development to build a right turn lane onto the Route 95 South Exit 43 off-ramp and install an adaptive signal system at the Walnut Street intersection.

“Because both of those changes will require approval from the Massachusetts Department of Transportation, the full risk of MassDOT saying no is borne by National Development,” said Mullen.

Mullen said the only way for the theater to open before the traffic improvements are completed is that “National Development would need to post a bond equal to at least 150 percent of the anticipated cost of completion.” As a result, Mullen said National Development “would remain liable to complete the construction as soon as possible.”

Additionally, Mullen said the Board of Selectmen would be authorized to approve food and alcohol licenses for the cinema. He also said National Development has agreed to pay the town $300,000, which Selectmen Chairman Dick Dalton said would be used to make improvements to Jordan Park.

“That payment would be made within 30 days of all building permits being issued,” said Mullen.

If Town Meeting approves the eight-screen, 800-seat cinema proposal, Mullen said the revised PVDD would need to be approved by the Department of Housing and Community Development because the state agency is required to approve changes to a 40R district such as MarketStreet. He said Attorney General Maura Healey will need to approve the zoning change as well.

“All town bylaws need to be approved by the attorney general,” said Mullen.

Concerns aired

MarketStreet Advisory Committee member Anne Mitchell, 2 Fernway, noted residents are confused about the PVDD and the proposed warrant article that will be appearing at the April 29 Town Meeting.

“Lynnfield residents need to understand that unlike the Zoning Bylaw, which can be changed by a two-thirds vote at Town Meeting, the proposed amendment to the development agreement is not being voted on at Town Meeting,” said Mitchell, a theater opponent. “The development agreement is a contract between the developer and a majority of the Board of Selectmen. And most important, the development agreement can be amended at any time without the public’s approval and input. It was amended previously in 2011 and again in 2013. With this new amendment, this would be the third time it would be amended. The residents of this town, especially those in (Colonial Village) who are concerned about the location of the parking garage, would have no say in that process if the development agreement is further amended.”

Mitchell also raised concerns about the type of adaptive signal system that would be installed at the Walnut Street intersection.

“If we are going to negotiate with the developer, what you are asking for should be more specific,” said Mitchell. “More importantly, the town should have input into the type of adaptive signal technology that is to be installed. If the town is negotiating these traffic improvements, the town should have a say about the technology that is being implemented.”

Mitchell said the MSAC’s report stated that the adaptive signal system “will not help if there is a high volume of overall traffic.”

“That is exactly the type of traffic we can expect from an eight-screen, 800-seat multiplex,” said Mitchell.

Mitchell also expressed concerns about the proposed start and end times of movies that would be shown at the theater.

“This is not only vague, but it has no legal effect whatsoever,” said Mitchell. “The theater operator is not a party to the development agreement. We cannot enforce this provision against the operator. Each time a movie comes out and it’s a popular movie, the show times are going to be close together.”

Mitchell also expressed concerns that National Development would abandon its pledge to build the garage behind Walburgers because there are utilities located below the parking lot there. She noted National Development Managing Partner Ted Tye originally said the only location the garage could be located was next to California Pizza Kitchen, but said he abandoned those plans after Colonial Village residents aired concerns.

“I think people need to understand the risk, but more importantly traffic is a bigger issue,” said Mitchell.

Mullen agreed with a number of Mitchell’s points including the adaptive signal system. While he said the town would be unable to have the cinema’s operator, CMX, abide by the revised PVDD, Mullen said National Development would be forced to make sure that CMX “does not violate these terms.”

“I think we need to be cognizant of it and hold National Development’s feet to the fire,” said Mullen.

In response to a question from Selectman Chris Barrett, Mullen said the selectmen could amend the PVDD if Town Meeting approves the proposed cinema.

Dalton suggested that Mullen and Dolan continue refining the revised PVDD. He also asked MassDOT to weigh in on the proposed adaptive signal system.

Selectman Phil Crawford said he wanted to get more details on the type of adaptive signal system that would be installed and more information about the proposed Exit 43 right turn lane.

MSAC member Wally McKenzie, 4 Debston Ln., accused the selectmen of “rezoning the use of MarketStreet.”

“You are increasing it by 20,000 square feet for retail by taking it away from office space,” said McKenzie. “People were fearful in 2007 that the board would start to make changes without having to go to Town Meeting.”

Alexandra Road resident Joe DeMaina agreed.

“I have been going to these meetings for a very long time,” said DeMaina. “The ambiguity in some of the language ended up biting us. The ‘shoulds’ and ‘shalls’ are famous. I am not in favor of this cinema at this time, but if you people want to do this and want to approve it, the language on this should be so tight that there is no room for discussion. It should be locked down.”

National Development Senior Vice President Doug Strauss said Article 14 would mandate that the garage be located behind Walburgers, which he said would be more expensive than the originally proposed CPK location.

“We agreed to incur that cost in order to get the support of the community and satisfy Colonial Village folks who were upset about it,” said Strauss. “We did the right thing in that regard, but it’s a substantial cost.”

Strauss also noted that MassDOT will decide which adaptive signal system gets installed.

“If we don’t get MassDOT approval for these off-site mitigation components, the theater won’t move forward,” said Strauss.

Mitchell thanked Barrett for voting against recommending the cinema article and listening to abutters’ concerns. She was “very disappointed” that Dalton voted to recommend the theater proposal, especially because he served as the selectman liaison to the MSAC.

“I don’t understand what is the rush to push this thing through now when the Lahey building is nowhere near being fully leased,” said Mitchell. “The residents in our area just feel like we are not being heard. It’s important for the selectmen to hear from residents as well.”

The selectmen were scheduled to discuss the revised PVDD during Tuesday’s meeting, taking place after deadline.