SHARON BOARD OF APPEALS MINUTES OF APRIL 30, 2008

SPECIAL MEETING

A special meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, April 30, 2008 at 8:00 p.m. in the Lower Level of the Sharon Office Building.

The following members were present:  John Lee, Chairman (8:13 P.M.); Kevin McCarville, Secretary; Larry Okstein, Walter Newman, Seth Ruskin, Lee Wernick.

8:13 P.M. Sharon Commons, Case No. 1609 – Continued Hearing

Mr. Lee stated this has been broken up into two phases:  Phase I is the conceptual plan; Phase II is the site work, tree removal and site leveling.

Mr. Houston, PSC, presented the peer review.  He reviewed the following:

Condition #7:  this was modified today because there is an ongoing concern with the restoration bond, which will go into effect in case of some unforeseen problem.  It will provide a sum of money sufficient for the town to engage their own contractor who will enter the site and right of way of Old Post Road and restore it to a wooded and vegetated condition.  The slope will be 2-1; they will re-spread an average of 4-5” of topsoil on the site that has been disturbed. 

Mr. McCarville asked if they will be purchasing new topsoil and Mr. Houston stated no, they will reuse the existing topsoil.  In addition, at 30” on center, the applicant would be required to plant trees to accelerate the reforestation process.  They are suggesting $880,000 to go from a stripped condition to a vegetated condition.  The town would hire its own contractor.  They could use up to $880,000.  They are satisfied and so is Peter O’Cain.

Mr. McCarville asked Mr. Houston to explain the three types of bonds.  Mr. Houston stated there is a trilateral bond (tripartite agreement between the town, the applicant and the bank); a cash bond or a bond provided by a bonding company.  Some of the members discussed a desire to have a cash bond in a passbook that would be in the town’s name only.  Mr. Wernick asked if this is in the decision and Mr. Houston stated it is in the bond language, but should be added to the decision.

Mr. Ruskin asked at what point the project would be considered complete.  Mr. Houston stated the security could be released when the Phase 2 site work is done or when the restoration is complete, the loam spread and the hydro seed mix takes root.  Mr. Ruskin asked what about putting up a building and Mr. Houston stated that if all the money is not used, any unused portion would be returned to the applicant.  That would mean roads, parking, utilities would all need to be in place or anything else approved in Phase 2.  Mr. Wernick asked if it would cover road construction and Mr. Houston stated no. 

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SPECIAL MEETING

Mr. Wernick stated he would like to see that in terms of the town’s right to initiate Condition #3, not #7, it be the at the sole discretion of the town.

Mr. Lee stated he would like the exact wording from Blue Mountain (?) to be included in the decision as it discusses “woody hydro seed” and trees on center.  Mr. Houston stated he will add this to Condition #7.  Mr. Houston stated he will also add to Condition #7:  if it is determined by a majority vote of the Zoning Board of Appeals, at its sole discretion…..

Condition #47:  Mr. Lee asked if this is going to be on Old Post Road and do we have a plan? Mr. Houston stated yes.

Condition #49:  Mr. Houston stated cash in the town’s name is by far the safest and he is not sure if the applicant had anticipated doing that.  Mr. Shelmerdine stated that cash was one of just four forms of bonding.  Richard Rudman stated they will have a letter of credit from the lender and surety bond under the terms of the master plan decision.  They will make sure that everyone is very comfortable with this.  They will involve Richard Gelerman and give him the financial information to review.  Mr. Houston stated the original decision required approval by the town treasurer and town counsel.  Because we have the “look back” provision, the board can advocate a particular surety if they want to.  Mr. Wernick stated he wants this only within the town’s control.  Mr. Houston stated that would be a legal question regarding if only the town has control.  He will talk with Richard Gelerman.  Mr. Lee asked Mr. Houston to request the exact language from Mr. Gelerman, what the account would be called and who would hold it.

Condition #50:  Mr. Lee asked if there is further reference on this.   Mr. Houston stated yes.  There is a requirement that a traffic plan be approved by the Police Chief.  It doesn’t exist at this point, so they need to meet with the police chief and get his authorization.  Mr. Shelmerdine stated this has already been submitted and they will review this tomorrow.  Mr. Houston stated there is a truck route and an access plan, but they don’t have the necessary level of detail now.  Mr. Intoccia agreed.  Mr. Lee stated he can’t approve this condition at this time.  Ken Caputo stated that Drawing DA2 shows what the board is looking for.  Mr. Houston stated this is paraphrasing what is required in the Master Plan approval.  He feels at this juncture of time, we need an agreement with the police department that the applicant will provide police details or anything else the police department might want or need.  Mr. Lee would like Condition #50 removed.  Mr. Rudman stated the maintenance of the traffic plan is to be coordinated and adjusted with each phase of the work.  He suggests the board leave this condition in and add “approval of the maintenance of traffic plan for the area site work”.  Mr. Okstein suggested adding the words “or as amended by the chief of police” for each phase.  Mr. Houston stated he will rewrite Condition #50.

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SPECIAL MEETING

Mr. Newman questioned Condition #47 – refueling.  Mr. Intoccia stated a fuel truck will come on site for that purpose.  Mr. Houston stated he will craft language that addresses the board’s concerns. Mr. Lee stated the wording should address containment and past practices for field fueling.  Mr. Houston stated they anticipate they will need local permits from the fire department.  Mr. Intoccia stated he would like to put in two or three areas with stone on the bottom for refueling.  Mr. Lee stated something is needed to contain spills.  Mr. Intoccia asked him if he would like a vapor barrier and Mr. Lee asked if it would be impervious containment and Mr. Intoccia stated yes.

Condition #5, Page 8:  Mr. Lee asked if we have a copy of the Memo of Understanding and Mr. Houston stated he thinks it is part of the original decision.  Mr. Shelmerdine stated it was recorded at the Registry of Deeds.  Mr. Rudman stated he thinks it is attached to the decision filed with the town.  Mr. Lee asked if the cranberry bogs going to the ConCom would be covered in the Memo of Understanding and Mr. Shelmerdine stated yes along with a lot of other timely conditions.   Mr. Houston stated it is all right just to cite it as long as it is part of the original decision. 

Page 9:  Mr. Lee questioned the houses on Old Post Road.  Mr. Houston stated those houses that have it now will continue to have it. Mr. Gobi stated he would like to have Old Post Road stay as it was in the 1962 layout. He is not sure why it is being relocated off the 1962 layout.  He was told that 101 Old Post Road would be turned into a cul-de-sac for Laurel Road and then he received a letter from Michael Intoccia informing him that the road will be relocated.  He would like to know why.  Mr. Intoccia stated everyone on Laurel Road complained.  He will do landscaping and fencing to protect everybody and to prevent people from seeing trucks going by.  They can’t do that if the road remains in the 1962 layout.  Mr. Houston stated that those questions pertain to the permanent construction of the road.  Mr. Lee stated those questions should be addressed to the Board of Selectmen as road commissioners.  He stated he thought that the two houses on Laurel Road would have access to Old Post Road.  Mr. Shelmerdine stated they have that ability now.  Further, Mr. Gobi agreed to this.  Mr. Intoccia stated that when he is 100% done,  Mr. Gobi’s two homes will have access to Old Post Road. 

Mr. Gobi stated his concern is that the new road as drawn is 58’ wide.  The existing layout under the 1962 taking is 60’ wide.  The grade is what it was in 1962.  If everyone down on Laurel Road doesn’t want to know there is a mall there, that is there problem.  Mr. Rudman stated this is not a new issue and he thinks it is unfair for Mr. Gobi to say he hasn’t heard of this.  They explained the commitment to him and his attorney regarding the Laurel Road neighborhood.  They told him it would be necessary to relocate Old Post Road.  When Frank Gobi agreed to sell his land, he agreed they could relocate Old Post Road as long as the changes to Old Post Road were minimized.  They have done what they could.  Everything is in the agreement that Mr. Gobi signed when he sold his land.  Mr. Lee stated this is not a matter for this board as we are not the road commissioners. 

SHARON ZONING BOARD OF APPEALS MINUTES OF APRIL 30, 2008  (4)

SPECIAL MEETING

He just wants to know that any house on Old Post Road that is going to remain will have access to Old Post Road.

Condition #12:  Mr. Shelmerdine stated that #91 and #97 will continue to have access to Old Post Road.  Mr. Lee asked if there are any other neighbors that fall into similar situations?  Mr. Intoccia stated no because he owns the property.  Mr. Lee asked if all is good with Mr. Gobi’s sister and Mr. Shelmerdine stated they met with her last week and they have agreed to provide her with landscaping and a buffer right away.  Mr. Intoccia stated he wants to make sure that Mr. Gobi is happy.  Mr. Lee stated that again this is not a Zoning Board issue.  Mr. Wernick stated he feels Mr. Intoccia is doing the best he can on this issue.  He doesn’t think that Frank Gobi will be happy if the road is changed regardless. Mr. Lee asked him why he wants to remain with the 1962 road layout and Mr. Gobi stated there are three reasons:  1)  the house is situated on the that street the way it was laid out in 1962; 2) to relocate the road will devalue his property as it will be on top of a hill looking down the street; 3) regarding the comments from Mr. Rudman, there is an agreement which says “widen the road”, not relocate it.  He doesn’t own 97 Old Post Road, just 91.  Mr. Lee asked who owns 97 and Mr. Gobi replied not him.

Condition #13:  Mr. Lee asked if we have the indemnification form and Mr. Rudman stated they did have.  Mr. Lee asked if it needs to be signed by the Selectmen and Mr. Shelmerdine replied yes and that he will also review it with town counsel.  Mr. Lee questioned the words  “duly executed” as it is not done yet.  Mr. Rudman stated he will get it signed after Dick Gelerman reviews it.  Mr. Wernick asked if it will be done before this board renders their decision?  Mr. Lee stated that some of the conditions are not done yet.  Mr. Shelmerdine stated this approval can be signed as it is just a condition.  Mr. Lee stated he would like this all locked up before we sign anything.  Mr. Intoccia stated it will be all locked up before they start.  Mr. Lee stated he doesn’t think the Zoning Board should be chasing anything.  Mr. Intoccia stated “you won’t”.  Mr. Lee asked that the wording “prior to any work on the site………” be added.

Page 10, Condition #15:  Mr. Lee requested that the word “should” be changed to “shall”.

Condition #19:  signs to be paid for by the applicant.  Mr. Houston stated that “Sharon Commons Construction Access” will be paid for by the applicant also.

Fred Simon, 680 South Main Street:  he is concerned about the impact on his property as they are proposing to widen South Main Street.  He gave Mr. Lee a letter that he would like to be part of the record.  He asked if he is at the right meeting and Mr. Lee stated yes as this meeting is for the safety aspect of the site plan.  He suggested that Mr. Simon also talk to the Selectmen.

Page 11, Condition #21:  Mr. Caputo stated that the Order of Conditions has been issued and there are no appeals.  Mr. Houston stated that Greg Meister is satisfied.

SHARON ZONING BOARD OF APPEALS MINUTES OF APRIL 30, 2008 (5)

SPECIAL MEETING

Condition #22:  this is a no cut zone.  Also, the snow fence is done.

Condition #32:  Mr. Intoccia stated they hire the DPW after 4:00 and pay them. Mr. Lee asked if they can bill him directly and Mr. Intoccia stated yes.  They also have a full time water truck and sweeper on site.

Condition #33:  Mr. Lee asked Tom Houston if he needs an office.  Mr. Houston stated yes in a stable, well-lit area, although it doesn’t need to be permanent.  Mr. Lee stated that we want the town to be well represented without any appearance of impropriety.  Mr. Intoccia stated that if there are any problems, they will get him a separate trailer.  Mr. Houston stated he can work around that.

Condition #42:  Mr. Intoccia agreed to what is shown on the master plan.

Condition #44:  Mr. Lee asked that they remove the last sentence, as Peter O’Cain is the manager.

Condition #47:  this is not possible.  Mr. Lee asked Mr. Houston for re-wording.

Condition #48:  Mr. Lee asked how many feet of fencing will be along South Walpole Street.  Mr. Newman questioned the fencing for the final project.  Mr. Intoccia stated that at one meeting he said they would continue it down Old Post Road.  Mr. Lee stated that will be approved by the Design Review Committee.  Mr. Caputo stated the fence is part of the MOU.  They are putting up a plain wooden cedar fence along South Walpole Street so you can’t see into the site.  It will be solid and there will be about 1500’ of it.  Mr. Intoccia asked if the board wants to put up the fencing when they are ¾ done with the job.  If they do it now, it will look like an old fence when they are done.  Mr. Lee asked if there is a security issue?  Mr. Houston stated the motivation was to ensure a 50’ no disturb area.  It will be a permanent physical barrier, but they can leave it until later.   Mr. Intoccia stated he would like the red fence up at all times and would prefer this fence be done later.  Mr. Lee suggested “at the end of Phase 2 construction”.  Mr. Rudman stated that because it is part of the master plan, the board should state this is being deferred.  Mr. Okstein stated that for security, it should go up now.  If there is no problem, let it wait.  Mr. Lee asked Mr. Houston to re-word this condition that the fence could go in later.  Mr. Newman feels a fence would be a visual blind and it should go in.  Mr. Intoccia stared he need seven days’ notice to put up the fence.  He asked that the board just let him know when they want it.  Mr. Lee stated it should be put in the decision that if necessary they will ask Mr. Intoccia to put it up.

Condition #49:  Mr. Lee questioned if this is for Ms. Gobi at 147 Old Post Road.  Mr.  Shelmerdine stated they don’t have an approved agreement with her yet and may need relief from this condition.  Mr. Lee asked if he is asking the board to approve something that doesn’t exist?  Mr. Caputo stated it did exist and then she changed her mind. 

SHARON ZONING BOARD OF APPEALS MINUTES OF APRIL 30, 2008  (6)

SPECIAL MEETING

Mr. Okstein asked if there is a legal agreement and Mr. Shelmerdine stated he doesn’t think that will happen.  Mr. Lee suggested they get an agreement in order and stated we need revised language on this condition.  Mr. Shelmerdine stated they agree to the language the way it is.  If they need relief, they will come back; if not, they won’t.  They are working with her attorney.

Fred Simon, 680 South Main Street:  understands the road will be moved 18’ closer to his house.  The only four-lane section will be in front of his house also.  He asked 1) can the road be moved toward the other side and if not they would like some kind of compensatory remediation.  Mr. Lee stated we all think our front yard is our front yard, but it’s not always the case.  He asked if it is staying within the layout and Mr. Caputo stated no.  Mr. Lee stated what he thinks is his front lawn, is not.  Mr. Simon asked if they will need a construction easement.  Mr. Houston stated there is no projected easement shown on any documents.  Mr. Shelmerdine stated no easement is needed.  Mr. Caputo asked if restoration of lawn will be done?  Will it go onto Mr. Simon’s property?  He doesn’t have those answers right now.  He will need to look at this situation.  Mr. Shelmerdine stated he has Mr. Simon’s phone number and will meet with him and the other neighbors.  Mr. Lee stated it is within the existing layout and in our conditions already stating a fence will be done if you want one.  There is an existing 25’ driveway.  Mr. Lee asked if they are okay with meeting with the Selectmen and Mr. Simon stated yes.  Mr.  Lee asked if they put up the fence and Mr. Simon stated no it was there when they bought the house.  Mr. Lee asked if it has been surveyed by them on their own and Mr. Simon stated no.  Mr. McCarville stated they might want to do that.

Mr. Lee stated that Mr. Houston has a lot of things to work on.  He gave him his letter that is marked up.  Mr. Lee asked the board if they want to vote contingent on the changes and the board stated they would like to see the corrections.  Mr. Lee continued this hearing to May 14, 2008 at 7:30 p.m. for a vote only.

There were no further questions. 

It was moved, seconded and voted to adjourn.  The meeting adjourned at 10:20 p.m.

                                                            Respectfully submitted,

Minutes accepted on 12/10/08