ZONING BOARD OF APPEALS MINUTES OF NOVEMBER 12, 2008
A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, November 12, 2008 at 8:00 P.M. in the Lower Level of the Town Office Building. The following members were present: John Lee, Chairman; Kevin McCarville, Secretary; Walter Newman, Seth Ruskin, Larry Okstein, Lee Wernick (8:15 p.m.).
Mr. Lee opened the meeting at 8:00 P.M.
8:00 P.M. New Hearing: Ingrid J. Miller, 84 Oak Hill Drive, Case No. 1627: Mr. Lee read the public hearing notice and letters from Greg Meister, Conservation Agent dated November 10, 2008 and Jim Andrews, Health Agent dated November 6, 2008. There were no objections presented.
The applicant was represented by Joel Fishman, Esq. Also present was the applicant’s husband, Ron Miller. Mr. Fishman gave the board a package which includes a legal justification for the grant of a variance. He stated there was a prior variance on this property granted in 1975
Mr. Fishman stated that the Miller’s are seeking permission to add a closet on the second floor and a family room. There is presently a two-car driveway, but only a single car garage on site. This property is located next to wooded conservation land. He further stated that the packet that he submitted to the board includes a legal justification for the grant of the variance. Mr. Fishman also read a letter submitted to Jim Andrews, Health Agent and his response. There was a prior variance on this property granted in 1975. The plot plan submitted shows that to the right of this property is Town of Sharon conservation land which wraps around the rear of all the houses in the area. They are proposing to make the current one car garage into a two-car garage and on the second floor add a walk- in closet with access to the closet from the existing bedroom.
Mr. Lee asked if the applicant has a problem with granite monuments being done by a surveyor. Mr. Miller stated that previously there were tacks done by a registered surveyor, but he will do monuments again if necessary. Mr. Lee stated that would be a condition of our approval. Mr. Lee stated that this is only 7’ from town owned property and town owned property should not be used as a private person’s property. Mr. Newman stated that we should probably include language about no abutting dwelling given to the uniqueness of the situation regarding the abutting land being open space. Mr. F ishman stated they are asking for a 12.45’ variance.
Mr. Lee asked that the following be added to the board’s findings: the finding is that the abutting property is town owned open space and the board is aware of the importance of protecting this open space.
There were no questions from the public. Mr. Fishman asked to close the public hearing. Mr. Lee asked him to draft a decision, including findings, and email it to the board’s secretary.
Mr. Lee stated that Mr. Okstein, Mr. Ruskin and Mr. McCarville will be voting. Mr. Wernick moved to grant the requested relief. Motion seconded by Mr. McCarville and voted 3-0-0.
Mr. Newman stated that he would like the decision to reflect the fact the board’s justification for allowing this variance is that this is not abutting a house, but it is abutting open space. In other words, the open space played a part in our granting this variance.
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8:25 P.M. New Hearing: Omnipoint, 215 S. Main Street, Case No. 1626: Mr. Lee read the public hearing notice. He also read correspondence from both Greg Meister, Conservation Agent and Jim Andrews, Health Agent, neither of whom had any objections or issues.
The applicant was represented by Joseph Giammarco, Esq., Prince, Lobel, Glovsky & ye, 100 Cambridge Street, Suite 2200, Boston, MA. He stated they have an executed letter with the town and will be paying monthly payments to the town. He stated it will be monopole for three carriers and will also accommodate town users free of charge. He stated it will be a 40’x40’ compound surrounded by a chain link fence and access will be via the DPW town yard. The existing utilities will be run underground to the site. There will be one or two monthly maintenance personnel trips to the site.
Samir, a representative of Omnipoint showed the board where the dead zones are in the area. The existing sites are on a golf course and there is one over the town line in Walpole. The coverage footprint will shrink if the height is reduced. The frequency of this tower is at 1900 mhz and no one else will be using this frequency. Tab 4 in his hand out is a copy of the coverage map.
Mr. Giammarco stated that typically when a cell carrier identifies a need in a portion of a town, they will draw a map and have the field agent drive the area. He will then find an existing structure on which to mount the towers if possible. When they can’t find one of sufficient height, they will petition to build a new one. Mr. Newman asked how the Upland site overlaps with this one. Mr. Giammarco stated it doesn’t overlap where it would eliminate the need for this one. Mr. Ruskin asked if they have one that covers the Cobb Corner area and Mr. Giammarco stated if they could get approval on another one, that would cover that area. Mr. Newman asked if he is saying if they get approval, they will have both. Mr. Giammarco stated yes as it is a significant overlap. Mr. Newman stated that we want to minimize the cell tower locations in this town and he hopes they are trying to help achieve this goal, not maximize, but minimize. Mr. Giammarco stated that the tower they are proposing is for three carriers, one of which is Omnipoint.
Mr. Newman asked if they have talked to Amtrak yet. Mr. Lee stated he would like a letter from Amtrak certifiying their position as this tower is within the fall zone of the tracks. Mr. Newman asks what determines the height and Mr. Giammarco stated that whatever will give them the best coverage determines the height. Mr. Newman asked if they went higher would that eliminate the need for another location. Samir, from Omnipoint, stated no. Mr. Lee stated that the one permitted on the golf course was 120’. Samir stated they might have to come back again. Mr. Ruskin stated that the back of the DPW site sinks down quite a bit and he asked if they have checked that out. Mr. Giammarco stated they put this in the back of that lot for that reason. Mr. Ruskin feels this area could be shrunken down a lot. Mr. Giammarco stated he wasn’t sure they could cover the area at 120’ and Samir stated there was a problem to the south with that height. Samir had a copy of the tower at 120’ which he submitted to the board. Mr. Giammarco stated he would like to submit something to the board regarding total coverage gaps and how to fix them. Mr. Lee agreed. He stated he would also like them to look into Upland Road. Mr. Giammarco stated there was a packet of photo simulations in the packets given to the board. He also stated that 140’ would be above the tree line.
Bill Pastuzek, a real estate appraiser stated he has some information regarding the property values near the proposed locations which he submitted to Mr. Lee. He stated he has looked carefully at this site and also at sites in Dover and Stoughton. The real estate activity within these sites was that if the pole was built at 140’ it would not affect the real estate prices.
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Mr. Giammarco asked if they have come across a situation where it does affect property value and if so, why. Mr. Pastuzek stated there were instances they the towers were so close to a house that did affect the real estate pricing. Also, a height of 180’ is detrimental to the community. Mr. McCarville asked if he thinks it turns away prospective buyers having a tower so close. Mr. Pastuzek stated he has been a real estate appraiser for 25 years, but he doesn’t sell real estate. They have to consider the many factors that affect housing marketing. Mr. McCarville stated he thought it might affect the sale of a home. Mr. Pastuzek stated there are many factors, such as traffic, location, etc. It does introduce another variable and some people might decide not to buy.
Mr. Giammarco stated that in terms of relief, they are actually asking for variances. He knows the town can’t grant a use variance; however, in order to prevent no coverage in the area the board would have the authority to grant a use variance. Mr. Lee asked if we could issue that as a special permit and Mr. Giammarco stated yes.
Mr. Lee asked for questions from the public.
Karl Pease, 23 Flintlock Road: he is a direct abutter and also owns Century 21 for the past 11 years. He would like to differ with the appraiser who spoke. The three properties that are almost adjacent to the towers received 16% less for their properties that other properties at the other end of the road. The experts will say there is no radiation, but people have concerns about that. Therefore, those properties will bring in less money. The board needs to look at other considerations. The town owns land on the other side of the railroad track and no one lives near there. The town garage creates a disturbance and noise and also there is Amtrak. The cell tower would be third strike for the people in that neighborhood.
Kathy Tragar, 15 Flinlock: she got the zoning bylaw and feels that this request by Omnipoint is not in the spirit of the town’s bylaw and violates everything listed in Section 4610. She feels they would need more than three variances and therefore she doesn’t know how the board could grant so many variances. Mr. Lee stated that the bylaw that was passed was with the intent to not put these on town owned properties. Another board wanted them on town owned land and that is what passed. We have to deal with what is in front of us. The bylaw states what restrictions are on this. We don’t have to grant the request. If we don’t do it, they will probably appeal it.
Peter Madonan, 5 Pleasant Park Road: asked why this site was selected. He asked if it was the ground elevation. Pole Plain Road is above that. There must be other places in town that are higher. Mr. Lee stated that the zoning bylaw that we voted on specifically states we want them on town owned property or on town owned structures. That is why they are here.
Mike Feldman, 11 Pleasant Park Road: what are the health concerns whether real or not. Mr. Giammarco stated that the only question that can be asked is if this facility will operate within FCC conditions. This cannot be denied for health reasons. Mr. Lee asked if cell towers are detrimental and Mr. G iammarco stated that in the 90’s, this was a brand new technology. That is not the way it is now.
Bill Pastuzek stated he was not paid to state anything. He was paid to provide an opinion whether or not it was positive or negative. Regarding the health issues, he has worked with scientists from MIT and most of myths have been debunked.
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Peter Madonna, 5 Pleasant Park Road: there is enough information on the internet that will create a stigma to be attached to your property. He doesn’t see where his analysis is incongruous. Mr. Lee asked if he is an appraiser and Mr. Madonna stated no. Mr. Lee stated Mr. Pastuzek is a professional and we have his credentials.
Eileen Wong, 18 Flintlock Road: doesn’t want to look out the window and see this every day.
Kathleen Congdon, Pole Plain Road: a 140’ monopole and necessary equipment within a fenced compound and they are talking three arrays on one pole. Mr. Giammarco stated that an array refers to the line of antennas. They are proposing nine with three on each side. They are approximately 6’ tall and 12-14’ across. Ms. Congdon pointed out that they said the town could have the top and asked if they are proposing more. Mr. Giammarco stated they are proposing a total of three plus a whip antenna on top. The board will make the decision as to how many. Ms. Congdon asked about how big each of these arrays would be and Mr. Giammarco stated it depends on the carrier. She asked to see an illustration. She asked what is the groundwater protection district as noticed in small print in the notice. Mr. Lee stated it is the area that we are concerned about because our drinking wells are in that area. We are concerned about contamination to the wells, but this application won’t affect it. Mr. Newman stated there is no concern as we are not discharging anything into the ground.
David Gill, 20 Pleasant Park Road: he spoke with a real estate agent and she said this would significantly lower the price of their house if they wanted to sell. It might be prudent to hire an outside authority to find out the effects of this on re-sale versus estimated value. It would be a different criteria. Also, he wanted to know the primary criteria that the board’s decision would be based on. Mr. Lee stated the question is does the applicant have gaps in their service area in the town and how can they best cover those gaps. Mr. Gill stated the law says because it is a variance they are seeking, there are things that need to be addressed. Because so many people are vehemently opposed to this, maybe they should go to a commercial structure where there would be no issues. Mr. Giammarco stated there is nothing is the area. Mr. Gill stated they get nothing out of this, but their house values will go down. Mr. McCarville stated we need to keep in mind that the Federal government says we can’t prohibit them from providing contiguous coverage. Therefore, we can’t deny them. We are trying to negotiate with them. Mr. Gill asked if he is saying they are putting them wherever they want. Mr. Lee stated no, only for contiguous coverage. Mr. Gill stated the applicant doesn’t meet what the town says. Mr. Wernick stated we can’t bar them.
Century 21 agent: asked don’t they need approval from a land owner and Mr. Lee stated yes, they have a lease already. Mr. Giammarco agreed and stated it has been signed by the Board of Selectmen and Ben Puritz, Town Administrator. The C-21 agent asked what the payments are and Mr. Lee stated we can’t discuss that as our issue is placement of this tower. The C-21 agent asked if they looked at the site across the track and Mr. Giammarco replied not to his knowledge. Mr. McCarville asked if they can do that and Mr. Giammarco stated he will look into it.
An abutter stated he understands there is a way to camouflage such towers and asked if that will be done. Mr. Lee stated that is a good point. Mr. Giammarco stated yes, but he doesn’t recommend a tree. In Rhode Island, they put up a pole on Route 295. It was a straight pole with wires and it looks like a traffic pole. Mr. Lee asked if they have considered camouflage and Mr. Giammarco stated it is not amenable. An abutter asked Mr. Lee if the board could impose camouflage and Mr. Lee stated yes.
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One of the abutters questioned the fall zone. Mr. Giammarco stated the fallzone is 100% of the tower plus 50’.
Mr. Lee stated he would like to continue this hearing to give the applicant a chance to get a letter from Amtrak, look into camouflage and also to look at the site on the other side of the tracks on Farnham Road.
Kathleen Condon, 2 Pleasant Park Road: questioned if everyone will be covered by this tower and Mr. Giammarco stated it depends on what services they buy. Mr. Gill asked if the abutters will be noticed about the next hearing and Mr. Lee stated no.
Mr. Lee stated this board is concerned about what the public has to say. This is not a done deal.
Peter Mahoney: did you take any other sites into consideration in theRFP? Mr. Lee stated it was not the Zoning Board’s RFP.
Sharon Lerner, Flintlock Road: asks that they seriously consider the Farnham Road proposal.
Barbara Walsh, 231 S. Main Street: is the RFP specific to the address given to the town owned property. Mr. G iammarco stated it is specific to this parcel. Mr. Lee stated that Farnham Road was not put out as a potential site. He has asked the applicant to find out if Farnham Road is available. Mr. Giammarco stated the area could be in a swamp, but he will check it out. Mr. Lee asked him to speak with Ben Puritz.
Paul ______, 99 Pleasant Street: what is maximum power and what would be the interference to people nearby with medical devices or the like? Samir stated it is a maximum of 3,000 watts overall for just T-mobile. Mr. McCarville asked if it could be more because of the other carriers and Samir stated it depends on what their output is. Mr. Giammarco stated it takes 30-40 days to do this after permitting is done. The C-21 Agent stated this will become a disclosure issue for every seller in the neighborhood. Not to do so puts them in violation of the law.
Barbara Walsh, 231 S. Main Street: Sharon has decreased its property values by 20% because of the economy and that is a big down fall.
Kathleen Brady, 2 Pleasant Street: knows they can’t address health concerns, but there is missing data about increased cancer risk. Her major concern is for the health of the community, therefore it needs to go as far away from people as possible.
Mr. Lee Continued this hearing to January 14, 2009 at 8:00 P.M.
9:53 P.M. Omnipoint, 2 North Main Street, Case No. 1628: Mr. Newman recused himself. Mr. Lee read the public hearing notice and read letters from Greg Meister and Jim Andrews, neither having any problems with this application. The Historic Commission was also present.
David Martin, Chairman of the Historical Commission stated they met tonight and continued their meeting until December. There are some concerns from the residents. One of the concerns is about the historic steeple that houses the Paul Revere bell and replacing it with fiberglass. There was a question if both towers will be needed.
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Mr. Lee asked if the church steeple will look the same when this is done. Mr. Giammarco stated there is a small GPS unit on the steeple, but that will be masked and the sheathing will be replicated. Mr. Lee asked if they have signed a lease with the applicant and the president of the Unitarian Church stated yes.
David Briscoe, 6 Pleasant Street: at the zoning meeting for Case No. 1619, the church presented plans to build an extension on the church. The zoning board approved those plans. As part of that meeting, Joel Fishman stated there was no cell tower and that was a misleading statement. Doesn’t that put this entire project for the extension plus this into question? He would like a hold on this entire project and would like the church to come back and explain their motive. Mr. Lee stated he asked the question that night and Joel Fishman said no, not at this time and they proceeded with the hearing.
Mr. Lee stated we are approving this as two applications: 1) modification to the church and 2) a hearing for a cell tower in the steeple.
The Church president stated that the proposed addition is to the right rear of the church and the steeple is in the front. There is no connection between the location on the building and the addition. Mr. Fishman was correct; there was no signed lease with T-mobile at the time it was presented to this board.
Valerie Gundlah, 22 N. Main Street: there was misrepresentation to the neighbors outside this meeting. She asked Ray point blank and he said no. She feels the approval for those plans was fraudulent and should be revoked. Mr. Lee stated we can’t do that as the appeal period has passed. What we now have before us is the cell tower application.
There were no further questions at this time. Mr. Lee continued this hearing to January 14, 2009.
10:15 P.M. Continued Hearing Sharon Commons, Case No. 1609: Mr. Lee stated that Beth Greene, Paul Olivera, Ed Hershfield, Christine Turnbull and Ann Bingham have done a great job working with the applicant, Target and the Zoning Board.
Michael Wang, Arrowstreet Architect: showed the board the updated plan and went over the changes. Mr. Lee stated we will incorporate that into our decision. Mr. Wang stated that the front façade was changed and the left and rear elevations will have a textured colored pattern that is compatible with the other colors. Beth Greene stated she would like to see some additional clapboard integrated into the design to break up the expanse. They were impressed with the brick and stone to be used. Christine Turnbull stated the people from Target did a great job and were easy to work with. Mr. Wang agreed. Mr. Lee stated we didn’t like the first version that was presented. They have done a very good job in representing the town’s interest. Mr. McSweeney asked if the issues of the residents will be considered. Mr. Lee stated we are talking about the Target building right now. Mr. Houston stated it looks like a significant improvement. Mr. Lee stated we have delegated this to the Design Review Committee.
Mr. Newman stated that what is being presented looks like a big store, not a series of small stores. He is still not happy with the way it looks. Mr. Okstein stated he thought Target addressed that issue. Mr. Lee agreed with Mr. Newman and asked if this is the best they can do. Mr. Wang stated they did present Whole Foods as a model to show how to break down a big store, but that was before Target was on board. This doesn’t work on all types of stores.
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Richard Rudman stated that Target has done a lot to make this a special store. Therefore, he would like to poll the board for their opinions so he can report back to Target. They need to know if they shouldn’t go forward. Mr. Lee thinks this is the best we can get for this site and is in favor of it. Mr. Wernick, Mr. Okstein and Mr. Ruskin agreed. Mr. McCarville stated that the only thing that mitigates some of the big box look is vegetation and trees. He is okay with this, but would like a warmer feel.
Mr. Shelmerdine stated they will be back on Phase 3 soon.
Regarding the Phase 2 approval, Mr. Houston stated Page 4 will change and he will email that to the board tomorrow. Also, a stormwater management plan has been around for a long time, but there have been a few changes made to it. This draft decision comes up with specific conditions of approval and incorporates by reference all the applicable conditions of the master plan. They are here for the approval of the site work and with the board’s approval they could move forward with the grading of the site, the roads, utilities, parking, etc., but no buildings as that would be Phase 3. Mr. Lee stated that Mr. McSweeney, an abutter, is concerned about the water tie in for himself and other abutters. Mr. McSweeney wants to make sure he is still protected and that the things put forth in the Phase 1 decision are still going forward. Mr. Rudman stated they have tried to obtain permission from Ms. Gobi and they are committed to doing that. She has not agreed to anything yet. Mr. Lee stated that was part of the decision. Mr. Shelmerdine stated that was sent to her months ago and they are still waiting to hear from her. They need her permission and they are committed to getting it. Mr. Lee stated that when the water is run past McSweeney’s house, what will happen? Michael Intoccia stated they said there was a utility line that runs right beside the pond. They would run a water main and leave a tap in for whenever they need it.
Ed McSweeney, 68 South Walpole Street: Condition #32 in the original Phase 1 decision states the developer will bring it right to his house. Mr. Shelmerdine stated they will do whatever the decision states. Mr. Lee asked if he wants this done all at once and Mr. McSweeney stated yes. Mr. Intoccia stated it will be done as part of Phase 2. Mr. Okstein stated he is more concerned about a timely notice as to when the work will start. Mr. Shelmerdine stated they will give good notice and it will be about when they are doing the roadwork. Mr. Intoccia stated they will give him a two-week notice and will provide the meter also.
Mr. Houston stated that 32 to 36 conditions in the Phase 1 decision relate primarily to Old Post Road. Mr. Shelmerdine stated he doesn’t know if they will ever get a signature from Ms. Gobi. Mr. McSweeney stated he is okay now. He asked if it is gentlemen’s agreement and Mr. Lee stated no, it is in writing within Phase 1. Mr. McSweeney stated he doesn’t want to be here for Phase 3 with the same issues. Mr. Intoccia asked if the neighbor at 70 South Walpole Street want it down now also? The line was going to go to the lot line, but not hooked up. He will send letters. Mr. Lee stated this should be stubbed at his property line.
Mr. Ruskin left at 11:00 p.m.
Mr. Lee stated he has reviewed this draft with Tom Houston already. Mr. Shelmerdine reminded the board they always have the “look back” condition. Mr. Lee stated that regarding traffic, there are some big concerns with mitigation. Mr. Caputo stated that 25% plans have been sent to Mass Highway.
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John Morgan, Traffic Engineer, was also present tonight. He stated he will be sending a package to the board and Peter O’Cain sometime next week. Mr. Lee stated that the Selectmen will be doing the final sign off. He also feels we need a master plan for the entire area, including the Shaw’s area. He asked Mr. Houston when we could get that plan. Mr. Houston stated the 25% for Old Post Road was approved by both this board and the selectmen and the plans are on record.
There were no further comments or questions.
Mr. Wernick moved to approve the Phase 2 site plans for Sharon Commons, Case No. 1609 as per the draft decision submitted by Tom Houston. Motion seconded by Mr. Newman and voted 5-0-0 (Lee, Okstein, McCarville, Newman,Wernick).
t was moved, seconded and voted to adjourn. The meeting adjourned at 11:20 P.M.
Respectfully submitted,
Accepted 5/13/09