SHARON BOARD OF APPEALS MINUTES OF APRIL 22, 2009

A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, April 22, 2009 at 7:30 P.M. in the Lower Level of the Town Office Building.  The following members were present:  John Lee, Chairman; Kevin McCarville, Secretary; Seth Ruskin, and Larry Okstein, Richard Gelerman, Town Counsel.

Mr. Lee opened the meeting at 7:31 p.m. 

Mr. Lee moved to go into executive session to discuss pending litigation.  Motion seconded by Mr. McCarville and voted 4-0-0.   Mr. Lee asked for a roll call vote:  Mr. Lee, yes; Mr. McCarville, yes; Mr. Okstein, yes; Mr. Ruskin, yes.  The board went into executive session at 7:32 p.m. but will be returning to regular session.

Mr. Lee moved to come out of executive session and back into regular session.  Motion seconded by Mr. Okstein and voted 4-0-0.  Mr. Lee asked for a roll call vote:  Mr. Lee, yes; Mr. McCarville, yes; Mr. Okstein, yes; Mr. Ruskin, yes.  The board came out of executive session at 8:14 P.M.

Atty. Gelerman left at 8:005 P.M.

Minutes:  Mr. Lee moved to accept the minutes of September 24, 2008, December 10, 2008, January 14, 2009, February 25, 2009, March 11, 2009, March 25, 2009 and April 15, 2009 with clerical corrections.  Motion seconded by Mr. Okstein and voted 4-0-0.

8:15 P.M. Continued Hearing MetroPCS, 135R Upland Road, Case No. 1634:  The applicant was represented by Arthur Kreiger, Anderson & Kreiger, Jamal Kahari, Site Engineer and Jerry Spires, Site Acquisition Engineer.

Atty. Kreiger stated they were last before the board on March 25, 2009.  He wants to emphasize that this is not a cell tower request.  He submitted an updated draft to the board showing changes from local law to federal law.  Mr. Lee stated it was updated to reflect Section 4600.  He also stated that Mr. O’Cain’s memo dated  March 13, 2009 to be included in the decision.

There were no comments from the public.

Mr. Lee closed the hearing at the request of Mr. Kreiger.

Mr. Okstein moved to approve Case No. 1634, MetroPCS, 135 Upland Road as per the draft decision submitted.  Motion seconded by Mr. Ruskin and voted 3-0-0 (McCarville, Ruskin, Okstein).

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8:25 P.M. Continued Hearing Omnipoint, 2 N. Main Street, Case No.1628: Mr. Lee read a Certificate of Appropriateness dated  April 21, 2009 from the SHC.  Also, present was the SHC chairman, Dave Martin.  He stated that they have met with Omnipoint.   Their main concerns were the fiberglass panels and the Paul Revere bell located in the steeple. He stated they had an expert come in and he said there would be no affect on the bell or change in the sound of the bell.  He stated the SHC decision is subject to a 20-day appeal period.  Mr. Martin also questioned the bond process.  Mr. Lee stated we try to avoid them.  We typically don’t bond our projects.  Mr. Giammarco, the applicant’s attorney, stated they could get some estimates and submit those to the commission at an acceptable amount.  Mr. Lee stated that the bond will be handled by the SHC, not the Zoning Board.  Mr. Martin stated they just want some protection in case there is some fading of the panels.  Mr. Lee stated that the applicant would be responsible for maintaining this in the proper historical condition.  Mr. Ruskin asked who would be responsible, the owner or the church.  Mr. Giammarco stated the applicant.  Mr. Lee stated we will be leaving the bond issue to the SHC.  Mr. Martin stated they will work this out with the applicant.  Mr. Lee stated we don’t have a removal bond, as this is an issue between the applicant and the church.  Mr. Martin stated they do have an issue with the way this looks.  Mr. Lee stated this needs to be worked out between the SHC and the applicant.

Mr. Giammarco submitted a copy of the acoustical report and also responses received from the State historical office.  One of the questions that arose at the last meting was fire prevention.  A separate equipment room will be built in the attic area and they will have to comply with code.  Each room would have a fire extinguisher and tie into the existing control panel.  There were also concerns of health.

Mr. Don Hayes, a certified health physicist with over 30 years of experience, is being heard tonight as an independent consultant. He is not an employee of any carrier.  He has served on many committees for public exposure for radiation safety and has reviewed about 500 sites and did an evaluation for compliance with FCC regulations.  He will be paid by Omnipoint.  Mr. Lee stated that is typical of what happens.  He asked if he has any safety or radiation concerns.  Mr. Hayes stated there is very limited access to the antennas being installed, as they will be in the steeple and people would not typically be working on the rooftop.  He has reviewed dozens of these facilities and none exceeded the FCC or Board of Health requirements.  He does not have any concerns with this type of installation.  These sites are well within the requirements of safety to the public.  Mr. Lee asked if he had ever found any that he had concerns with and Mr. Hayes said yes as some sites have a lack of a filed safety plan and there were a couple of sites where antennas did not have access control.  There were no issues with this one at the church.  Mr. Ruskin asked him his feelings about the FCC standards.  Mr. Hayes stated he has no problem with what has been adopted.  Mr. McCarville asked what is the danger to the people that he has seen and also what can happen. 

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Mr. Hayes stated that with these types of antennas, nothing can happen as they are about 50,000 times below the limit from the ground.  Mr. Ruskin asked if any of his MIT colleagues have disagreed and Mr. Hayes stated he can’t speak to the MIT standards.

Mr. Lee asked for public comments.

Paul Mende, 9 Pleasant Street:  asked what the proposed maximum power levels for the facility would be, noise that would be added.  What is the current level and what would be the future level.  Mr. Hayes stated that what exactly is proposed should be addressed by Omnipoint.

Scott Heffernan stated they are proposing very low power transmittals.  Mr. McCarville asked how many channels and Mr. Heffernan stated six channels and each one would have 291 watts per channel.  Mr. Lee asked if that would be over the kW of cumulative power and Mr. Heffernan stated yes.  Mr. Hayes agreed with Mr. Heffernan and stated that 1 KW per ERP and it will be at 50’.  Mr. Lee said Mr. Hayes had said it wouldn’t apply and Mr. Hayes agreed it wouldn’t.

David Briscoe, 6 Pleasant Street:  he is certified in radiation safety and is very familiar with radiation practices.  He asked how many radiation safety officers were at MIT and Mr. Hayes stated around ten or eleven and he is one of them.  Mr. Briscoe questioned access, signage and availability to these facilities.  He asked what are the FCC terms with regard to this.  There is no provision in the plan for 24-hour access, only someone you could call at the church.  He understands the signage is on the inside, not the outside of the building.  He would like the current FCC regulations.  Mr. Hayes stated that what is required for signs aren’t covered under a standard involving safety signs.  There are three basic signs.  That sign is required to be posed in an area of general access, which   typically, would be on the nearest access door.  Mr. Briscoe asked him to explain the character of the access door.  It sounds like the sign needs to be on the outside.  Mr. Hayes doesn’t know where on the outside you would put it.  Mr. Giammarco stated that the equipment room being built in the attic will have a door with a sign on it.  Mr. McCarville asked what would be the security on this door and Mr. Giammarco stated he doesn’t know but he knows it will be secured.  Church sites don’t typically want people just showing up and ask that visits be scheduled ahead of time.

Mr. Briscoe stated that his understanding of the current FCC rules is that some people provide a separate access and the public should be aware of it.  There should be a number the public could call if needed.  They would probably call 911 and they would provide services.  Mr. Lee asked if they have anything that says there must be 24-hour access and Mr. Briscoe stated no.  Mr. Hayes knows the FCC regulations have recommendation for 24-hour access, but it is not a requirement.

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Mark Giordani, 14 Briggs Pond Way:  he would like some questions answered from the health and safety officer.  He has never spoken before a board before.  He stated that Mr. Hayes had stated this would be built in compliance with FCC guidelines and Mr. Hayes agreed.  Mr. Giordani would like to know what those standards are.  Mr. Hayes stated that FDA, EPA and NCRA gave them input on what values there should be.  Also, the 1996 Telecommunications Act.  Mr. Hayes stated they don’t set the numbers, they adopt them.  Mr. McCarville asked Mr. Giordani his background and he stated he is a computer consultant.  Mr. Ruskin asked him if presented his findings to the FCC and Mr. Giordanio stated no.  Mr. Lee asked if his research has been published and Mr. Giordani stated no.  Mr. Giordani questioned if these are safe or legal based on FCC standards.  Mr. Hayes stated there are studies they say anything.  The levels that are set by the FCC are well within safety limits for the public.  Mr. Giordani asked if the FCC considered chronic long-term exposures when they set those standards and Mr. Hayes stated he can’t answer to what the FCC did or didn’t do.  They did however look at all the published literature.  He can’t say what they did look for.  Mr. Giordani stated they are saying these things don’t have a health risk.  He gave Mr. Lee some documentation and CD’s.  In some places they have been taking down these towers.  Mr. Ruskin asked about the World Health Organization.  Mr. Giordani stated he will get to that.  The FCC completely dismissed non-terminal affects, children, elderly and the infirmed when putting together the guidelines.  We are relying on standards that do not protect human health.  Mr. Lee asked who is the cell phone task force and Mr. Giordani stated they didn’t write it, they only enforce it.  Mr. Ruskin stated you are asking us to ignore what the WHO says and also who the FCC relied on.  Mr. Giordani stated no, but you can’t just look at the standards.  Mr. Hayes stated that different standards will have different effects on the human body.  Mr. Ruskin asked if Mr. Giordani read what he gave the board and Mr. Giordani stated that right now the U.S. has a limit of 61 volts per unit.  In other parts of the world it is .02.  Mr. Hayes stated this is not for a tower, but the antenna will be inside a steeple.   Mr. Giordani stated there is nothing that actually services the marketplace to be certain that no ill effects will take place.  Mr. Giammarco stated that T-mobile monitors their installations to make sure they are in compliance with FCC requirements.  They comply with the law.  Mr. McCarville stated that 35 countries have adopted different standards for different reasons.  He is not disbelieving what Mr. Giordani is saying, but there are many reasons why these towers are being removed. Mr. Giordani stated that in summary the FCC fails to protect human health.  These towers are not safe.

Mr. Hayes stated that when the FCC standards where adopted, they looked at all effects.  Mr. Giordani doesn’t agree as he feels they only considered thermal.  He submitted a letter.  Mr. Hayes stated he is saying the FCC reviewed all the literature to date.

Atty. Paul Schneider, Canton, MA was representing Mr. and Mrs. Gunlach, who are immediate abutters.  He has been doing this for 40 years and has represented cell towers in many towns.  He stated there are 15 omissions in the town’s zoning bylaw.  He submitted these errors to the board via a letter dated April 22, 2009. 

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He hopes the board will put something in the decision to protect the people in case they do exceed what is allowed.  Mr. Lee stated that a lot of this has already been addressed.  He stated that Mr. Schneider is coming into the game late.  Mr. Schneider stated that none of this was in the file.  They also missed all the overlay districts.  He feels this should be denied to protect the residents.  Mr. Lee stated he prefers that the applicant’s attorney come back and address these points.  Mr. Giammarco stated he would like to address them tonight and close the hearing.  Mr. Lee stated the board will not be rushed.  He feels the applicant should respond to the April 22, 2009 letter from Paul Schneider.  We want this done correctly and we want to make sure we are on solid ground for either a denial or an approval.  We want to do what is right for the town.

Mr. Giammarco stated he will prepare a response and get it to the board within a week.  Mr. Lee stated a lot of these have been addressed.

Valerie Gundlah, 22 N. Main Street: questioned the fact that T-mobile has not shown why this is needed.  Their website states this location is between “good and best”.  Contiguous doesn’t have to mean contiguous coverage by the same provider.  This documentation is pulled right off the T-mobile website.  Regarding co-location, the bylaw states within five miles.  There are 28 towers and 229 antennas they could co-locate on.  Some of them are not specifically for cell services.  The other issue is the overlay map; 2 North Main Street is not listed, therefore, it is an undesirable location.  It wasn’t desirable in 2004.  Most of these installations require electrical systems that need to run 24 hours per day.  What happens if there is a power outage?  How will it be cooled?  They would need a generator.  Mr. Lee stated there is a generator on the plan and Mr. Giammarco stated a battery back up kicks in.  Ms. Gundlah submitted the information.

Michael Lyons, 2 Pleasant Street:  regarding health, the time frame for these tower studies, are they still valid?  You mentioned the town did a study to look at the coverage and wanted to know if that is still applicable.  Also, did Omnipoint coverage change in that time or is it outdated?  Mr. Lee stated that the plan was done in 2002 or 2003 when we were doing the country club and he doesn’t know the answer to that question.  Mr. Lyons stated that the bylaw requires that you should state whether or not the study is correct or not.  Mr. Lee asked if we should be working to update this and feels that is a good question.

Nadine Mende, 9 Pleasant Street:  reading the application process, she found nowhere the specifics of the facility.   She still hasn’t heard what the total power outage is.  She would like a technical answer.

Mr. Lee asked what type of radio equipment we are talking about and what is the spectrum.  Ms. Mendes asked how the expert can certify this is safe if he doesn’t know what it is.  Scott Heffernan stated they will be operating in the 1945 frequency range. Mr. Lee asked if that is in this application. 

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Mr. Giammarco stated if so, it will be in with the application.  Mr. Schneider feels this petition is fatally faulty.  Mr. Lee stated we followed the procedure.

Carol Briscoe, 6 Pleasant Street:   stated she didn’t get her answer and Mr. Lee stated she did.

Nadine Mende, 9 Pleasant Street:  would like everything put at the library so people can review it.  Mr. Heffernan stated he will provide that.  Mr. Lee stated we will make sure it goes to the library.

David Briscoe, 6 Pleasant Street:  is very concerned about the historic issues.  They will be protesting the certificate of appropriateness.  There will be a change in the sound of the historic bell.  There will be an audible sound difference that will be perceivable.  Also, in regard to the golf course, did the Board of Selectmen abide by the Telecommunications bylaw?  Mr. Lee stated it was the Wireless Facility bylaw.  Mr. Briscoe would like clarification.  Mr. Lee stated we deal with the zoning bylaw.  Mr. Briscoe stated he will go through the zoning bylaw.

Dave Martin, Historical Commission questioned the appeal process.  Mr. Lee stated our decision will be filed with the town clerk and then there is a 20-day appeal period.  Someone can appeal our decision via the land court or superior court.

There were no further questions or comments.  Mr. Lee continued this to May 13, 2009 at 8:00 p.m.

10:10 P.M.      Continued Hearing Omnipoint, 215 S. Main Street, Case No. 1626:  Mr. Lee continued this to May 13, 2009 at 8:00 P.M.  He stated that at that hearing the board will discuss the hiring of flagman and railroad insurance being purchased.

10:15 P.M.      Continued Hearing Tran, 25 Meadow Road, Case No. 1631:  The applicant was represented by Tracy Sharkey.  She stated she would like to amend the application to allow construction within the 100’ wetland setback.  She is meeting with Conservation on May 4^th.

Mr. Okstein moved to modify the application for Tran, Case No. 1631.  Motion seconded by Mr. Ruskin and voted 4-0-0.  Mr. Lee continued this hearing to May 27 at 8:00 P.M.

Other Business:

Reorganization:  Mr. McCarville moved to nominate Mr. Lee for Chairman.  Mr. Ruskin seconded the motion.  Nominations were closed.  Motion voted  3-0-0.

Mr. Lee moved to nominate Mr. McCarville as Secretary. Mr. Okstein seconded the motion.  Nominations were closed.  Motion voted 3-0-0.

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Members:  The regular board members are:  John Lee, Kevin McCarville and Lee Wernick.  The alternate or associate board members are:  Seth Ruskin, Larry Okstein and Walter Newman.

It was moved, seconded and voted to adjourn.  The meeting adjourned at 10:25 p.m.

                                                            Respectfully submitted,

Accepted 5/13/09