SHARON ZONING BOARD OF APPEALS MINUTES OF JANUARY 14, 2009
A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, January 14, 2009 at 8:00 p.m. in the Lower Level of Town Hall. The following members were present: John Lee, Chairman; Kevin McCarville, Secretary; Larry Okstein, Seth Ruskin, Lee Wernick.
Mr. Lee opened the meeting at 8:00 P.M.
New Hearing: Sharon Residences, Case No. 1632
Mr. Lee read the public hearing notice. The applicant was represented by Robert Shelmerdine, Esq., Washington Street, Foxboro, MA. Mr. Shelmerdine stated that Phase 3 Sharon Commons has not been filed yet. He stated that the residential buildings are all located on the east side of Old Post Road. The first phase will consist of 29 town houses. The have not filed Phase 2 and 3 yet; therefore, they are only here tonight for the first phase. Mr. Shelmerdine stated there will be a primary access across from Old Post Road. Construction should start in about sixty-five days or around March 1st. There will be an access out to S. Main Street. It was intended for this to be an “emergency access” only, but through the Memo of Agreement with the Board of Selectmen it will be for construction access temporarily.
Mr. Lee stated that the Zoning Board could say that is not a good idea for safety reasons. Further, this is the first time the Zoning Board has seen these plans. Mr. McCarville asked why they are doing this in three separate phases. Mr. Shelmerdine stated that 168 units in this economy would not be feasible. Mr. Intoccia stated they are trying to get the lights onto the football field by Spring as agreed. Mr. Lee stated that is not a concern of the Zoning Board. Mr. Intoccia stated it is part of the Memo of Understanding. Also, these plans are the same plans that they showed the board in the very beginning, as this is what the town voted at town meeting. Mr. Shelmerdine stated they had to reduce a unit in this phase, but they added it to the last phase. He presented a rendering of the triplex and duplex buildings. Mr. Intoccia stated there will be no vinyl siding on any of the units. They are still working on the coloring, which will be the same on all the buildings. Mr. Shelmerdine stated that most of the lofts are presently open. Mr. Intoccia stated all lofts will be open. Mr. McCarville questioned the lofts as they are all about 1800 s.f. and stated the lofts cannot be used as bedrooms.
Mr. Lee informed the applicant that he is hearing something from the board regarding lofts as there was a previous 40B project that presented to the board that they would not use any lofts as a bedroom, but then later advertised a 2-bedroom as a possible 3-bedroom, using the loft as the third bedroom. Mr. Intoccia stated he will do whatever the board wants. Mr. Lee stated we need to look at this. We also need to go through traffic, safety issues, wastewater, etc.
Greg Meister, Conservation Commission Agent stated he doesn’t think the ComCom will like the five units closest to the wetlands. He asked the applicant to comply with local regulations as opposed to 40B regulations. Mr. Lee asked Mr. Shelmerdine to look at their proposed buffers. Mr. Shelmerdine agreed to file with ConCom. Mr. Lee stated he is not sure how the units will fit and if the neighbors will be happy. Mr. Intoccia stated they will make sure the neighbors will have a buffer. They will also build a berm with trees. Mr. Shelmerdine believes the locations of the units comply with 40R setbacks. Mr. Lee questioned the patio and/or decks for the back. Mr. Intoccia stated there will be only patios, no decks.
Mr. Lee asked for comments from the public.
Louise Patane, 665 S. Main Street: she is concerned with the 38’ height. Mr. Intoccia stated that to comply with Sharon code, he thinks the roofline has to be 30’ high, but he will check. Mr. Lee stated the board will check on that also. Mr. Intoccia stated there will be no attics. There will be a first floor and the second floor will be built into the roof. Ms. Patane would like some screening. Mr. Intoccia stated he will have his engineer walk and stake the property line with Ms. Patane. Mr. Lee stated that Mr. Intoccia has already walked this site with the neighbors. Ms. Patane asked if the board will be discussing safety issues later and Mr. Lee stated yes as tonight was only to open the hearing.
Susie Walsh, 680 S. Main Street: originally when the project was brought forward, they were told there would be no entry onto S. Main Street. Mr. Intoccia stated it will always be there for emergency access and there will be a gate, but it will be a temporary access during construction. By September or October, the gate will be there and they will switch to the main access. Mr. Lee stated we will have a traffic engineer review this. He suggested that Ms. Walsh question this again. Mr. Intoccia stated that Mr. Houston has already gone over this. Ms. Walsh asked if they will be widening the road soon. Mr. Intoccia stated they have to have all site improvements done before the mall can open. However, he cannot meet with them until Mass Highway approves this. Mr. Shelmerdine stated they will meet with the people on S. Main Street before they do the actual work. When Mass Highway approves the layout, they will meet with the abutters.
Ed McSweeney, 68 S. Main Street: asked if the board will vote on anything tonight. He also asked if this meeting starts the 90 days process. Mr. Lee stated it starts the 120 days allowed for the review process. If it takes more than 120 days, the applicant can grant an extension of time so the board we can go beyond that time as the board wouldn’t have enough information to make a decision. Mr. Lee stated that the applicant does not have all their submittals yet and Mr. Shelmerdine agreed. He also stated the Zoning Board would be allowed to go longer than 120 days if necessary. Mr. Lee stated if the applicant doesn’t want to extend the time, the board would close the hearing and say that we don’t have sufficient information and would most likely vote to deny. The Housing Appeals Committee would then remand this back to the board. Mr. Shelmerdine stated that a developer doesn’t want to be in that position where a petition is denied.
Mr. McCarville stated the board can also ask for more information. Mr. Intoccia stated that whatever the board needs, he will provide.
Mr. Lee stated that to answer Mr. McSweeney’s question, the clock starts ticking today. The purpose of the time frame is so that no one can drag out the process. Mr. McSweeney stated he was not noticed of this meeting. He asked if they will be here at every meeting for the next few months. Mr. Lee stated he will announce the continued date.
Brian Florek, 147 Old Post Road: asked if 40R or 40B has been approved. Mr. Lee stated this is a 40R. At the last town meeting they voted to approve a 40R overlay district. Mr. Shelmerdine stated that in order to be eligible to go to town meeting, the State approved this. Mr. Intoccia stated they couldn’t go before town meeting without that approval from the State for a 40R.
Ed McSweeney, 68 S. Main Street: asked if A, B and C have all been approved. Mr. Shelmerdine stated tht A & B have been approved. “C” is across from Laurel Road and they haven’t submitted it yet as that is not even on the table or part of the bylaw yet.
Ardis Hare, 675 S. Main Street was represented by his daughter. She asked that it be confirmed that they will be getting a fence. Mr. Shelmerdine stated they will meet with them and talk about a fence or a hedge. This will be done before the board votes. Mr. Lee stated we will put whatever is agreed to right in the decision. If you don’t work things out, we can’t enforce anything.
Susie Walsh, S. Main Street: stated they want to be reasonable, but just don’t know the timing. Mr. Lee stated it would be helpful if the abutters would write up what they are looking for and give it to the board.
Louise Patane, 665 S. Main Street: asked if Mr. Shelmerdine would point out on the drawings where they are starting. Mr. Intoccia stated he is not sure.
Mr. Wernick moved to have Tom Houston do a peer reviewon this project for traffic, wastewater, etc. and the cost would be paid by the applicant. Motion seconded by Mr. McCarville and voted 5-0-0.
Mr. Lee continued this hearing to February 25, 2009 at 8:00 P.M.
8:45 P.M. Continued Hearing: MetroPCS, 149 East Street, Case No. 1629: Mr. Lee stated the applicant is proposing to add an antenna onto an existing tower. There were no questions from the public.
Mr. Wernick moved to approve the application before the board with the board’s standard conditions and two special conditions. Motion seconded by Seth Ruskin.
Kathleen Brady, 2 Pleasant Street: asked what this will do for the town as far as coverage. Mr. Ruskin stated this provider has no coverage in this area of town. Mr. Lee stated it should increase the coverage in the center area of Sharon. Ms. Brady asked what the name of company is and Mr. Ruskin stated MetroPCS. Ms. Brady asked if it is the intent of the law that we have to support every individual company. Anne from MetroPCS stated the intent was that the carriers need to provide coverage. Ms. Brady asked if we have 3,000 telecommunication companies, will we then have 3,000 cell towers. Mr. Lee stated that is what the ZBA deals with. The interpretation that this board works with is if the individual carrier says they need coverage in a particular area, they can have it. Ms. Brady asked how many cell towers are in Sharon. Mr. Ruskin feels we should move forward as he feels Ms. Brady is arguing about the next continued hearings. To answer Ms. Brady, Mr. McCarville stated there is no limit on towers. Congress says we can’t prevent them from coming into town. We can’t stop them.
Mr. Lee stated we will cover some of these issues in the next hearing. FCC issues licesnses for those carriers. The blocks of frequency that is available is what puts limits on this. Mr. McCarville reminded Ms. Brady that this is an existing cell tower. Mr. Lee stated the nearest abutter is 600-700’ away and there is already a tower there. MetroPCS is only seeking an antenna.
There were no further comments. Mr. Lee reminded the board that the hearing is closed and there is a motion and a second on the table. Motion voted 3-0-0 (Lee, Okstein, Ruskin).
9:20 p.m. Continued Hearing: Omnipoint, 215 S. Main Street, Case No. 1626: The applicant was represented by Joe Giammarco, Prince, Lobel, Glovsky & Tye, Boston, MA. Mr. Lee stated the board previously requested the following: 1) letter from Amtrak, 2) plan showing other possible locations, 3) availability of town parcels and why they are using it and 4) input for questions raised by the abutters.
Mr. Lee asked if this is a monopole and Mr. Giammarco stated yes. Mr. Lee asked if they have received a letter from Amtrak and Mr. Giammarco stated they are still trying to contact them. Also, regarding the coverage plans, they are still working on them. Mr. Lee reminded everyone that we are dealing with a tower request at the DPW, not the church. Mr. Giammarco presented plans that were given to him by Eric Phelan, a radio frequency engineer with T-mobile. The plan showed Sharon and surrounding towns. Mr. McCarville stated Omnipoint is T-mobile.
Mr. Lee asked for the board’s comments on this application.
Mr. Okstein asked the height and Mr. Giammarco stated 140’. Mr. McCarville asked about the fall zone. Mr. Giammarco stated that is one of the issues they are trying to contact Amtrak about.
Mitch Klausner, 3 Pleasant Street: asked how close is the nearest abutter. Mr. Lee stated about 200’ from the base of the pole to the nearest property line, not houses. Mr. Klausner asked the applicant to show him that distance on the map. Eric from T-mobile showed him a map with in-building and in-vehicle coverage. Mr. Giammarco stated coverage would reach Depot Street. Mr. McCarville stated that the range can depend upon foliage and terrain. Mr. Lee asked if with the tower at the DPW, would they have coverage at the Unitarian Church? Eric Phalen stated yes.
Mike O’Shea, 1 Pleasant Park Road: asked how many towers there are currently around town, two or three? Mr. Lee stated there are more than that. Mr. O’Shea stated his carrier is Verizon and he has full coverage in this town. He asked why they can’t put an antenna on one of the existing towers. Mr. Lee stated there is one more tower on the golf course. However, just because one carrier has coverage, it doesn’t affect another carrier’s coverage. Mr. O’Shea asked if Omnipoint is on every other existing tower in town and Mr. Lee stated that is what they are trying to accomplish now.
David Briscoe, 6 Pleasant Street: asked what is the DBM that would be present close to the Unitarian Church. Eric from T-mobile stated that anything shown in white on the plan is a negative 84. Mr. Briscoe stated that means the parcel area is better than 95 and Eric stated yes. Mr. Briscoe stated that the FCC maintains 95.
Kathy Trager, 15 Flintlock Road: asked if there are any other poles at this height in the middle of a neighborhood. Mr. Lee stated the golf course, but it is surrounded by residences.
Carl Pease, 25 Flintlock Road: the dump area may be 12’ lower than the DPW site according to Google Maps. He feels the town should also look into the area behind the Sacred Heart School which has an elevation of 260’.
Mr. Lee stated we are going to have to continue this because the applicant has not gotten a letter from Amtrak.
Dave Martin, 350 N. Main Street: knows there are a lot of restrictions on that land, plus it is wetlands.
Barb Walsh, 231 S. Main Street: stated she was told to investigate why it wasn’t feasible on Farnham Road. Mr. Giammarco stated he emailed Ben Puritz, but didn’t get an answer. Mr. Lee stated the applicant needs to get answers from Mr. Puritz. These people answered RFP’s put out by the town. Mr. Giammarco stated his client will not want him to start over. Mr. Lee stated they have spent a lot of time and resources at this point, but we do have some leverage.
Kathy Trager: handed the board a petition from the residents on Flintlock Road asking that this application be denied. Mr. Lee asked if they give reasons for wanting the board to deny the petition. Ms. Trager stated they have all discussed this and feel this will decrease their property values. If that happens, they will petition the town to decrease their taxes and will probably fight this legally. They didn’t bargain for a 140’ monopole that needs variances to be placed somewhere. They feel this is unfair. Mr. Lee stated the board will not pit one neighborhood against another. Ms. Trager stated there are other locations nearby such as Farnham Road.
Paul Mende, 9 Pleasant Street: asked if maybe the board would consider it is not necessary to have either of these towers. The coverage maps that T-mobile uses for marketing are different than what is being presented tonight. He feels this is a misrepresentation and urges the board to consider this application closely. He would like an independent review. Mr. Lee asked him if he has a copy of the information he is referencing. Mr. Mendes stated not with him, but he will get it. Mr. Giammarco stated he has an affidavit from his engineer stating this tower is necessary and he stands by that.
of 1996 and gave a copy of same to the board. Mr. Giammarco stated that the law as written left many things undefined. Each carrier defines what they need for coverage.
Mr. Lee stated that gives the carriers a lot of leverage. He read the definition of “Decibels per Meter”. Ms. Brady stated that federal law does give actual numbers. The
Valerie Gundlah, 22 N. Main Street: she spoke with Ed Markey’s office who wrote the law. It means there should be “a provider in every corner of the town”. Mr. Lee asked her to get documentation from Mr. Markey’s office.
Mr. McCarville questioned “contiguous” coverage. Ms. Gundlah will get that information requested.
There were no further comments or questions.
Mr. Lee continued this hearing to March 11, 2009 at 8:00 P.M.
9:45 P.M. Continued Hearing, Omnipoint, Unitarian Church, 2-4 North Main Street, Case No. 1628:
Mr. Lee stated the applicant is seeking a special permit, but no variances. The applicant
was represented by Joe Giammarco, Prince, Lobel, Glovsky & Tye, Boston, MA and
Eric Phelan, an engineer with Omnipoint. They are proposing to mount eight panel
antennaes which will be behind fiberglass replacement panels. There is one GPS unit
that will be put on the base of the belfry. It looks like a Styrofoam coffee cup turned
upside down. There will also be a HVAC condenser unit to control the temperature of
the air. There will be one or two maintenance trips to the site per month which will be
coordinated with the church. They are meeting with the Historical Commission on
February 11th to allow time for them to meet with an acoustical engineer to check
The impact on the bell. The facility will not produce any odors or smoke.
Mr. McCarville questioned the electrical room. He asked what fire protection they have
to protect the members of the congregation. Mr. Giammarco stated that Sheed Z-1 has
an illustration showing what they are doing and also any installation would have to
comply with building and fire codes.
Eric Phelan: showed existing coverage on a map. They looked at this facility along with
the DPW site. This provides sufficient coverage by linking up with the DPW site.
Mr. Ruskin asked if they have a map that shows the church itself. Mr. Phelan stated yes.
Mr. Ruskin stated his concern is that from Depot Street down receives coverage from the
DPW tower. He doesn’t think this one is necessary. If they approve this, he thinks they
will be back requesting more space. Mr. Lee asked if the towers need to closer together
with high frequency and Mr. Phelan stated yes. Mr. McCarville stated the higher the
frequency the lower the signal over any distance. Mr. Phelan stated that coverage is
their main objective. Mr. Lee stated he expects this to be continued because they are
still before the Historical District Commission.
Dave Martin, Chairman Historical District Commission: Mr. Giammarco did address
most of his concerns. The Paul Revere bell is of concern and Mr. Giammarco will be
working with them on acoustics. They will be meeting on February 11th with them.
One issue with the whole cell tower issue is if the board decides that one tower is all
that is needed they would prefer that the Historic building not be tampered with.
Rich Schroeder, Historical District Commission secretary: Their concern is with the
bell that is irreplaceable. The steeple was rebuilt in 1990 or so. Their interest is to
protect the historic structure relative to American history.
Mr. Lee asked if there have been any other towns that have done this with historic
steeples. Mr. Martin stated it has been done in other towns, but he hasn’t seem them
or heard any horror stories.
Valerie White, 156 Massapoag Avenue: Their sister church built in 1816 in Bedford
had the same issue and concerns. She was assured by a long time member of that
congregation that there was no change whatsoever in the sound of their bell.
Susan Rich, Historical Commission: She wants it on record that this is the only
Paul Revere Bell in Sharon.
Valerie Gundlah, 22 N. Main Street: there are only four of those bells in existence on the
planet and she thinks this is the only being used. Mr. Martin questioned the
Congregational Church and Ms. Gundlah stated that one is not the same size and
weight.
David Briscoe: Handed out some documentation to the board. He has been in
touch with a lawyer. He would like the town to reject this based on current law,
both State and town. If this church was not in a historical district, it would be
allowed, but because it is it is impossible to put this request here. Mr. Lee asked
if the church is listed with the National Register of Historic Places and Mr. Martin
stated yes because it is in a historic district. Mr. Lee stated the ZBA is looking at
this as being in a residential district. They are asking for a special permit because
if it were in a different district, there would be no issue at all.
He asked Mr. Briscoe where he got the information he submitted. Mr. Briscoe
stated it is from the updated model bylaw. It is a guide; it is a bylaw from 1997
and also on page 70 of the Sharon Zoning Bylaws.
Mr. Lee stated that is why he mentioned the only reason they were here is
because of Section 4620, #4. This is in a residential district. Mr.
Briscoe stated it is an historical district also. Mr. Briscoe stated it was created by
a Cape Cod Commission. Mr. Lee that was specifically for Cape Cod issues in
Barnstable. Mr. Briscoe stated it is a guide, not a law. The only real law is the
Federal law, the rest are guides. Mr. Lee stated the Zoning Bylaw is in front of
us. What you have is not specific to Sharon and does not apply to what we are
dealing with. The Sharon Zoning Bylaw addresses historic issues. Mr. Briscoe
stated he was told by lawyers that this shouldn’t even be considered because it is
in an historic district according to State law. Mr. Lee stated it has been done in
Ipswich, Hingham and Bedford.
Michael Lyons, 2 Pleasant Street: would like the two maps that show the DPW
site and the church site.
Dave Martin: questioned the area coming from Cobb’s Corner this way. He stated
there is a tower and asked if T-mobile is on it. Mr. Phelan stated yes, but it is in
Canton.
Valerie Gundlah, 22 N. Main Street: wants to point out that within the bylaw she
thinks this has to be denied. It is on the National Register of historic places. If she
wants to paint her door a different color, she needs permission. She would be
charged $100/day for every day her door is a different color because she is also
within the historic district and is in the Historic Register. She also feels this will
diminish her property value.
Mr. Lee would like a copy of the Harvard School of Public Health article as we
cannot find it. He asked Ms. Gundlah to get it for the board. Ms. Gundlah stated
she saw it in the newspaper. She also feels this would affect her quality of life. Mr.
Lee stated we didn’t write the Zoning Bylaw, we just interpret it. Ms. Gundlah
Stated she would be worried 24 hours/day, 365 days/year which would affect
her quality of life. She questioned the definition of “antenna”. This doesn’t
meet the setback requirement for an antenna.
Mr. Lee questioned a repeater. Mr. McCarville stated it reverberates the signal.
Mr. Phelan stated it takes the signal and amplifies it in a specific direction. Mr.
Lee stated that the bylaw does separate these things out: towers, repeaters, and
antennas.
Mr. Wernick stated we could invalidate our own zoning bylaw if we go down the
road that Ms. Gundlah wants us to. Then, they could put up whatever they want.
Mr. Giammarco stated that “definitions” define repeaters, towers, and antennas.
Ms. Gundlah stated that Section 4640 states that the antenna needs to meet the
Antenna bylaw. Mr. Briscoe stated this should not be in an historic district as it
is free standing. Mr. Lee stated it is not free standing.
Ms. Brady stated she understands research. What was safe with lead in the
1950’s is no longer safe; also, like cigarette exposure and asbestos. Until we
can say it is 100% safe, it shouldn’t be near children or residential areas. She is
worried and concerned for all the kids in the area and also the elderly.
Ms. Gundlah gave Mr. Lee a copy of the Harvard study.
Mr. Briscoe again asked the ZBA to deny this application now.
Mr. Lee stated we can’t do that. They will be meeting with the Historical Commission
and they have heard the arguments. We will do research on this. Mr. Briscoe asked if
the Historic Commission finds this is restricted and they state that to the ZBA, then could
the ZBA not permit it? Mr. Lee stated they requested a special permit because they are in
the residential area. Our decision needs to stand up in court, if necessary.
There were no further comments.
Mr. Lee continued this hearing to March 11, 2009 at 8:00 p.m.
Continued Hearing: Ronald Lubin, 12 King Philip Road, Case No. 1625: Mr. Lee
continued this hearing as Mr. Lubin was not present. He asked that we contact him.
It was moved, seconded and voted to adjourn. The meeting adjourned at 11:00 P.M.
Respectfully submitted,
Minutes accepted 4/22/09