SHARON ZONING BOARD OF APPEALS MINUTES OF MAY 13, 2009
A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, May 13, 2009.
7:00 P.M. Wilber School Site Visit: John Lee, Seth Ruskin, Kevin McCarville, Walter Newman
8:00 P.M. Town Office Building, Lower Level: John Lee, Seth Ruskin, Kevin McCarville, Walter Newman, Lee Wernick, Larry Okstein.
Minutes: Mr. Lee moved to accept the minutes of November 12, 2008 and April 22, 2009 as submitted. Motion seconded by Seth Ruskin and voted 5-0-0.
8:05 P.M. Sharon Residences, Case No. 1628 Modification: Town Counsel, Richard Gelerman was present. The applicant was represented by Atty. R obert Shelmerdine, Washington Street, Foxboro, MA. Mr. Lee asked Mr. Shelmerdine and Michael Intoccia if they had a statement for the ZBA tonight and Mr. Shelmerdine stated no. Mr. Intoccia stated they would like to try to move forward. Mr. Lee read a statement regarding the last meeting held on April 22, 2009.
Mr. Intoccia agreed with Mr. Lee’s statement. However, regarding the emergency access, without it, they won’t be able to go forward. He stated this is his life and his style. He can’t build with what the board was giving him. He felt the board didn’t listen to what the consultants wanted. Everything he asked for was approved through an MOU through town meeting. If the fire chief wants the emergency road, he has to give it to him. He reacted out of anger at the last meeting because there was financing on the line. Mr. Intoccia apologized for his actions at the previous meeting. He stated he would do anything for the town. He just wants to move forward. Mr. Lee stated the town doesn’t get reimbursed under 40R until Old Post Road is completed. Also, the Zoning Board did look at traffic. Mr. Intoccia stated they have to pay the money by June 15th and then get reimbursed when Old Post Road is done.
Tom Houston stated that basically the change that is being considered at this juncture affects the access, not the project site. The proposed change doesn’t affect the ultimate access from Old Post Road. Initially, if the board adopts this draft decision, it will allow access over a temporary access road. The temporary access road wouldn’t be built to full town standards. It would serve for a maximum period of two years and at the end of that time they would have to fully reconstruct Old Post Road. They could build it in its entirety or the first 500’or if it looked like the mall wasn’t going to be constructed they could come back and build a full subdivision street with 24’ of pavement, lighting and sidewalks. To ensure that the permanent roadway would be constructed, they would have to bond the construction of that roadway. The use of the gated access would be for a 6-month period while Old Post Road is being constructed to allow access to the residents at that time. There would be a full roadway in place in two years or gated and used on for a temporary period of six months.
Mr. Lee asked if they have a letter from the fire chief and Mr. Shelmerdine stated no. Mr. Lee stated he met with him last week and he said he would have one. He also wanted sprinklers. Mr. Shelmerdine stated he wanted either sprinklers or access around the buildings. Mr. Intoccia stated he will install sprinklers because it is safer. Mr. Lee stated the fire chief would like an emergency access for only that purpose. Mr. Intoccia stated there will be a gate so no one can use it as a cut through.
Mr. Newman asked what the culverts will convey. Mr. Houston stated it was a recommendation of the applicant’s negotiations with DEP and ACOE.
Mr. McCarville stated he suggested a temporary road months ago and the applicant said he couldn’t do it. Mr. Intoccia stated he couldn’t do a finished roadway there. Mr. McCarville stated the applicant choose not to do any construction on Old Post Road. Ken Caputo stated they are still working on a design at this time. Mr. Shelmerdine stated they have not been given the money to build the 4-lanes in and out. They will be utilizing an access for the unit owners, so they need some relief. Mr. Houston stated that the other key issue is that there will be no more than 14 certificate of occupancies issued for Phase 1 of the project. Mr. McCarville stated no one walks away to annual Phase 2.
Mr. Lee asked Atty. Gelerman to explain the Tripartite Agreement. Mr. Gelerman stated that the draft decision provides for a tripartite agreement which is an agreement among the developer, bank and town. The bank will tell us they are holding funds in an amount and they actually hold those funds. To trigger the release of a tripartite agreement, takes a vote of the board. The money is to reconstruct the road to subdivision standards. Mr. Houston stated that the developer can 1) come back to the board and request to build out a minor street to Planning Board rules and regulations or 2) he could actually build the first 550’ with a temporary turnaround. Mr. Intoccia stated the road has to be feasible for 29 units. The road will continue out to Old Post Road. Mr. Lee stated they will have to bond the cost of the road, which is probably $200,000. Mr. Intoccia stated it wouldn’t be that much. Mr. Shelmerdine stated an estimate would be prepared by the board’s consultant.
Mr. Newman stated we have discussed this before – if there is a dispute the bank can hold the money until that dispute is settled. We wanted him to do a passbook. Mr. Gelerman stated the only condition for the release of funds is a vote of the board – nothing else. Mr. McCarville asked why town counsel is recommending something different from last time – previously he suggested a letter of credit. Mr. Gelerman stated it is a smaller amount of money. There will also be a time limit on this. The board would hold a hearing and the applicant would be given a certified copy of the vote and then he would go get his money at the bank. Mr. Intoccia stated he can’t touch the money. Mr. Shelmerdine stated the bank can’t not honor the agreement. The developer is required to give his consent. Mr. Okstein asks what happens if the bank goes under. Would another bank honor the tripartite agreement. Mr. Gelerman stated it is insured by FDIC and it would be less than $250,000. He will check into that though to be sure.
Mr. Houston stated it is $300,000 for the road and $900,000 for the culverts. The total amount wuld be over one million dollars. Mr. Intoccia stated they are not securing that. The culverts will be built with the road. Mr. Houston stated there is an ambiguity in “subdivision grade”. Mr. Caputo stated he thought the estimate was appropriate for a temporary road off S. Main Street. The right of way is a non-issue. Mr. Houston stated that the language in the decision says “a subdivision roadway, everything to Station 5.25
Mr. Houston stated that the language in the decision says: “a subdivision roadway extending to STA 5.25 which is just beyond the entrance to the site with a cul-de-sac”. He is not saying that they are saying could not be made to be acceptable. Mr. Caputo asked if it would be more acceptable if the language said the roadway infrastructure will be built to subdivision standards. Mr. Lee stated that means a 60’ layout and then the question would be is there space. Mr. Caputo stated it is wider than 60’ now. Mr. Shelmerdine stated the layout is 120’; however, the question is do we have 60’ outside of the culvert. Mr. Caputo stated it will need to meet the design standards of put forth in the subdivision rules and regulations. Mr. Lee asked if that can be done and Mr. Caputo stated yes. Mr. Shelmerdine stated that the final pavement width will be 24’ and they do have room for that. Mr. Caputo stated they would have to do a design change of the culverts.
Mr. Lee stated it says “temporary”, but in reality it is the only access to the site. Mr. Houston stated that was correct. The roadway will have curbing, sidewalks, drainage and it will be 24’ wide, although there s an issue of cost.
Mr. Lee read the public hearing notice.
Mr. Gelerman stated that when he met with the board, he talked about a process for resolving this and now it is different. There has been litigation filed. Counsel for the applicant and himself have reached an agreement. They will not be required to file a response. The applicant can file a voluntary withdrawal and litigation will get dismissed.
Mr. Intoccia stated that when they cut the trees in a few weeks, they will put up the gate. They will cut only the trees they need to. They don’t want traffic coming through there; therefore, they need to put up the gate immediately. He will remove it when they have temporary access. Mr. Lee stated there will be no traffic going through. They won’t be using temporary access out to S. Main Street until you start building out Old Post Road. Mr. Intoccia stated there will be a sign on the gate. Also, they will be starting foundations in the next couple of weeks. They need two accesses in case someone gets hurt. Mr. Houston stated it is standard operating procedure to have a second means of access, which is a safety thing.
Mr. Lee read letters from Mr. and Mrs. Patane dated May 11, 2009 and a letter dated May 10, 2009 from Nancy Bloomfield.
Susan Walsh, 680 S. Main Street: appreciates how the decision was handled, but she questions the emergency access road: 1) will it be surfaced; 2) how wide will it be; 3) what kind of gate. Mr. Houston stated the emergency access roadway out to S. Main Street will be 20’ in width and the pavement will be about 4” thick. From S. Main Street it will look like a residential driveway, but will be a little wider. There will be gates at both ends. It will be opaque at the cul-de-sac at S. Main Street to prevent headlights. The exact design will be up to the fire chief, but the two gates will be back to back. Mr. Intoccia stated it should be a nice gate when you drive by. Mr. Houston stated at least one will be opaque.
Louis Patane, 665 S. Main Street: what is the distance between the new emergency road required by the fire chief and the Old Post Road entrance as they appear to be very close together. Mr. Lee stated the issue is there should never be any project with only one access in.
Susan Walsh, 680 S. Main Street: how much tree loss will there be? Will there be good amount kept? Mr. Lee stated we don’t want it cleared out to S. Main Street. He has to market this area and he doesn’t want a lot of trees down either. Mr. Lee questioned the right of way. Mr. Houston stated there is not much grade along there. The total amount
of area that could be removed is about 40’, 20’ roadway and 10’ on each side. Mr. Intoccia stated he will go to 30’ with 5’ on each side. He may have to go more, but will try not to. Mr. Lee asked if there is a curb cut from Mass Highway. Mr. Intoccia stated they have filed for it. Mrs. Patane asked if there is a buffer rule about abutting someone else’s property. Mr. Gelerman stated he is not aware of any. Mr. Lee stated there is an application before Mass Highway to access this. The EAR is on State property as is part of the Patane’s driveway. Mr. Gelerman will check with Mass Highway to see if they have any rules.
Mr. Gelerman stated the board needs to vote in the affirmative to amend the decision as drafted by Mr. Houston subject to corrections regarding the language. They will correct the scrivener errors. Mr. Lee stated that the date of the plan is April 27, 2009. Mr. Lee stated that the members voting on this will be: Mr. McCarville, Mr. Lee and Mr. Wernick.
Mr. Lee moved to accept an amended decision as provided by Mr. Houston PSC as shown of plan entitled MP-1 dated April 27, 2009 subject to corrections to reflect the description of where a permanent roadway may go. Motion seconded by Mr. McCarville for discussion. Mr. Lee stated that Mr. McCarville has huge concerns about this. Motion voted 2-1-0 (Mr. McCarville voting against the motion).
9:15 P.M. Omnipoint, 2 N. Main Street, Case No. 1628: Mr. Lee stated there was a report dated March 2006 showing where cell towers should be placed. The Unitarian Church is not included in this report.
Mr. Giammarco, of Prince, Lobel, Glovsky & Tye, represented the applicant. Also present was Atty. Jackie Murray and Scott Heffernan and Dave Hayes. Mr. Giammarco stated he would like to respond to Atty. Shelmerdine’s letter dated April 28, 2009. 1) There is no visual impact as everything will be enclosed; 2) regarding co-location, they have no control over who else may be at the site; 3) Groundwater Protection District: additional permit not required or prohibited; 4) they have their own expert and are not sure if the board needs to hire someone else; 5) they did present data on coverage; 6) they don’t need a variance; 7) the church isn’t a residence; 8) there will be no sounds created; 9) regarding property values, this will be located within an existing structure and no property values will be affected; 10) the materials used will comply with the FCC guidelines; 11) none of the other locations provide coverage to this particular area; 12) they need this facility to provide services to the gap; 13) they have provided stamped drawings provided by professional engineers and radio frequency engineers. 14) the coverage gap is on Main Street and other locations; 15) don’t own the structure and can’t control who else could come into the church steeple; 16) they are not increasing the nonconforming nature of the property; 17) regarding groundwater protection district, they don’t need any additional special permit because there are specific uses lists. It is also not prohibited.
Mr. Giammarco stated batteries will be stored in self-contained units. Mr. Ruskin stated that he has trouble with coverage as it seems that Upland Road would cover this area. Mr. Ruskin feels the number of locations should be kept down. If something can be serviced by the Upland Road tank, then it should be. Mr. Giammarco stated the level of the antennas will be lower in that area and also the area is heavily wooded and therefore will not provide coverage to where they are proposing on North Main Street.
Mr. Lee handed out antenna specs. Mr. McCarville stated that the lower the antenna is the less coverage there would be. Mr. Ruskin stated he doesn’t want to add another location unless we have to. Mr. Lee stated there is no coverage on Billings Street now.
Nadine Mendes, 9 Pleasant Street: stated Mr. Lee gave her a copy of the report entitled “Cellular PCS Antenna Site Feasibility”. He also dropped off reports at the library.
Mr. Newman asked what would be required to stabilize the antenna? Mr. Giammarco stated they could be welded directly to the tank or they could use band mounts or brackets on top of the tank’s roof and poles within the tank depending upon the tank. Mr. Newman asked if they can weld extensions in terms of steel posts on which the antenna can be mounted? Mr. Giammarco stated that could be possible and he has seen this done in the past.
Mr. Lee stated that three meetings ago we approved MetroPCS with brackets. Mr. Newman stated if they wanted to try and max out the Upland water tank, would that be possible by adding or welding extenders on the tank to maximize its radius of influence? Mr. Lee doesn’t feel this is a question for Mr. Giammarco.
Atty Schneider, 779 Washington Street, Canton: representing Valerie Gundlah, 22 N. Main Street. He received the report on Monday and he wasn’t able to delve into it completely. He doesn’t feel the applicant has addressed the issues under Section 4461 especially because the word “shall” is used.
Valerie Gundlah, 22 N. Main Street: stated she will give the board case law so they can look it up on their own. Mr. Schneider stated that there have been no independent studies performed on cell towers. Ms. Gundlah stated her responses to Omnipoint’s letter dated April 28th are attached to Mr. Schneider’s letter. Their engineer stated the overlap would be 60% and now they don’t agree with that. Mr. Ruskin stated we are not interested in shutting people down. We just want to provide the best place for coverage. Ms. Gundlah asked if the board would entertain the construction of a wireless facility if it were on a vacant lot on the corner of Main Street? The answer is no. Mr. Lee stated she just assumed we wouldn’t approve something. He asked if she had any information on these malfunctions? Ms. Gundlah stated no as she didn’t have enough time. Mr. Lee stated she wants them to go through all potential sites. Ms. Gundlah stated that according to the Sharon Zoning Bylaw, they need to show that every existing site cannot give them coverage now. Mr. Lee asked if she wants the applicant to go to every site and Ms. Gundlah stated yes. Mr. Lee stated we are not here to determine good or bad sites in town or how many there are. Ms. Gundlah stated the application is not complete until they show they have tried every alternative. Mr. Schneider agrees. Mr. McCarville asked where there is a published list of sites, the town clerk? Mr. Lee stated there isn’t one. Mr. Schneider stated they know where the sites are because they are in the industry. Ms. Gundlah stated we should use what we have to the max before going to another one. Mr. Schneider stated that verification is missing from their application. Ms. Gundlah stated that is also according to their engineer that they now disagree with.
Paul Mende, 9 Pleasant Street: on the applications that the town has received, how many have been approved and how many denied? Mr. Newman stated he doesn’t know, but the initial one that was on the golf course was formally denied. Mr. Lee stated we went to court. Mr. Newman stated that most of them were negotiated from an objectionable location to a more suitable location. Mr. Lee stated the only freestanding tower is the one on the golf course. Mr. Mendes stated that is certainly not a record of standing in the way of cell towers. Ms. Gundlah asked how far away from residences was the one at the golf course. Mr. Lee stated they wanted it closer to the utilities and moved it out 700’ to get it away from the residences. Ms. Gundlah asked why 50’ is okay when 200’ wasn’t. Mr. Lee stated the issue was “visually”. Mr. Mendes urges the board to defeat this proposal, as this is not a suitable region. The burden of proof is on the applicant. Everyone who has spoken is against it, no one is for it. There is no demonstrated need, no assessment of other sites, no record of customers without service. Again, the burden of proof is on them to show they need it. The Telecommunications Act doesn’t apply here. Zoning Boards have the authority to decide what is approved. He feels this is a very incomplete application and materials came in late.
David Briscoe, 6 Pleasant Street: They were going to appeal the decision of the Sharon Historical Commission. Mr. Lee asked if they did appeal the decision and Mr. Briscoe stated no. Mr. Lee asked if the 20-day appeal period has expired and Mr. Briscoe stated yes. He stated he spoke with Dave Martin and he suggested that he put their comments in writing and give it to both the Sharon Historical Commission and the Zoning Board. He feels that every opportunity to relocate out of the historical district should be made.
Also, if the ZBA approves this, there are precedents that the company provide an escrow fund to the town to replace the building years from now, if necessary. Mr. Lee stated that the Sharon Historical Commission has already approved this. If the church wants to keep all the equipment that is not a ZBA issue, but would be between the church and the lessor. Mr. Giammarco stated that if the site is vacated, the equipment will be removed and that could be a condition of approval.
Mr. Lee asked if this is something that is good for the town? Does it meet the zoning requirements and does it fill the gap in coverage? Do you have anything that deals with zoning issues? Mr. Briscoe stated that every attempt possible should be made to locate this out of the historic district. Mr. Giammarco stated they do have an existing installation on the golf course facility. Scott Heffernan stated they have 118’ on a 140’ tower on the golf course. Mr. Lee stated if there is a rule that for every 10’ you can go higher, the reception is more? Mr. Heffernan stated no, it depends on what is in the area, terrain type, trees, etc. Ms. Gundlah stated clearly there are other existing providers in the area.
Mr. Schneider stated that clearly the board is relying 100% on the applicant’s input. Mr. Lee stated we are an adjudicating board and we seek additional input. That is what we do. Mr. Schneider stated that what is missing is the board has to rely 100% on what the applicant is presenting. The board should have a consultant paid for by the applicant. Mr. Giammarco stated that Section 4690 allows a waiver for a consultant. Mr. Schneider stated that according to that section, the board can waive site requirements, not waive a consultant. Mr. Lee stated we can waive things that have to do with design and visual. Mr. Schneider stated that he respectfully suggests that we ask Mr. Gelerman as to whether or not there can be a waiver as this is heading for litigation. Mr. Lee stated he doesn’t want to think that way. Mr. Schneider stated the board should get a consultant to verify various issues.
There were no further questions or comments.
Mr. Lee stated we received a draft decision earlier today; therefore, we are not going to close this hearing tonight. Ms. Murray stated that she presented the draft based on 149 East Street, as the Upland Road has not been recorded. Mr. Lee stated this will be continued to May 27, 2009 at 8:00 P.M. We will submit a draft decision to town counsel and then we will vote either in favor or against this application.
10:30 P.M. Omnipoint, 215 S. Main Street, Case No. 1626 Continued Hearing: The applicant was represented by Atty. Edward Pare.
Mr. Okstein asked if there is an issue with the fall zone? Mr. Lee stated Amtrak is not concerned with Fall zones. Mr. Okstein asked if that is in writing and Mr. Lee stated no, but we did receive something from the MBTA.
Mr. Lee asked if the applicant has modified the plan and Mr. Pare stated no. Mr. Pare stated there is also a spot for a safety antenna on the top of the tower. Mr. Lee stated they had asked them to look at the Farnham Road site, and asked if they did that yet. Mr. Pare stated they are ready to go forward at the DPW location. The town had said this is a good site, so they are here. Mr. Newman asked if they intend to look at Farnham Road and Mr. Pare stated they would consider that a delay. Mr. Lee stated the Selectmen have already given them a lease for the DPW and have said it was a good site.
Kathy Traeger, 58 Flintlock: it was brought up at town meeting that the town was looking to lease some sites, but town meeting did not approve this particular site. The site is heavily treed by the railroad tracks, but not between the DPW and Flintlock Road. The trees are now just getting to be 35-40’ and are starting to block out the DPW salt shed. A 140’ pole would stand out. She is furious that the selectmen would think this is a good site. Mr. Ruskin asked if she went to the Selectmen’s meeting to tell them that Ms. Traeger stated she plans to. She feels the ZBA also needs to tell them that this site is not okay. Mr. Lee asked why she feels this doesn’t comply with the Zoning bylaw. Ms. Traeger stated because of the input from previous legal counsel for the church and she agrees with him. She feels there is no way the ZBA can protect the neighborhood from a pole the size being proposed. They are supposed to pick the best location and if they have made an error it is up to the board to correct it. Mr. Lee stated we could ask them to co-locate on another pole if there was one. Is there another place? Ms. Traeger stated Farnham Road. The nearest residential area would be blocked and there is an access road into the site.
Bruce Steinberg, 14 Flintlock: has a signed petition that he gave to Mr. Lee. He read it into the record. He feels that the one proposed for the church would not affect the property values in the area because it is enclosed. This one would affect people because it is a 140’ monopole. Mr. Lee asked the applicant what would be the possibility of reducing the height of the tower. Scott Heffernan, T-mobile, stated 140’ is the minimum needed at this site and it will still leave a service gap. It also provides coverage to the Amtrak line. Mr. Lee asked if could go with 120’? Mr. Heffernan stated yes, but he is not sure at this time what impact that would have on the total site. He feels it would reduce their co-location possibilities.
Karl Pease, 23 Flintlock: asked if the board turns down this site, they could then go look at Farnham Road. The ZBA had instructed the neighbors to go to the Selectmen to ask them to withdraw this. Mr. Lee stated that is not what he said. Mr. Pease stated that Farnham Road is an alternate site. Mr. Pare stated that everything is an alternate site. Mr. Lee stated that since our first meeting, we have asked them to look at Farnham Road. He has even spoken with Jackie Murray. However, our job is not to find sites. He would personally love to see Farnham Road, but that is not what is before us.
Ms. Traeger stated that Farnham Road is farther south. Mr. Lee stated he wishes the applicant would go look at Farnham Road.
Mr. Pare stated he would like to close the hearing tonight and have the board render a decision. Mr. Lee stated no, we will keep it open and send the draft decision to town counsel.
There were no further comments or questions. Mr. Lee continued this hearing to May 27, 2009 at 8:00 P.M.
Mr. Lee suggested a dual peer review. Ms. Murray stated she is not certain it would be done by May 27th. Mr. Pare stated he will consult with his client and will have an answer on the peer review by tomorrow.
It was moved, seconded and voted to adjourn. The meeting adjourned at 11:00 P.M.
Respectfully submitted,
Accepted 7/8/09