A regular meeting of the Tow

SHARON ZONING BOARD OF APPEALS MINUTES OF JUNE 10, 2009

A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, June 10, 2009 at 8:00 P.M. in the lower level of the Town Office Building. The following members were present: John Lee, Chairman; Kevin McCarville, Vice Chairman; Lee Wernick, Seth Ruskin, Walter Newman, Larry Okstein.

Mr. Lee opened the meeting at 8:00 P.M.

8:01 P.M. Tran, 25 Meadow Road, Case No. 1631, Continued Hearing: Mr. Lee continued this hearing to July 8, 2009 as per request of Tracey Sharkey.

8:03 P.M. Lubin, 12 King Philip Road, Case No. 1631, Continued Hearing: Mr. Lee continued this hearing to July 8, 2009 as per request of the applicant.

8:05 P.M. Omnipoint, 2 N. Main Street, Case No. 1628, Continued Hearing: The applicant was represented by Joseph Giammarco, Prince, Lobel, Glovsky & Tye, Boston, MA and Scott Heffernan. Mr. Lee stated the board has a draft decision that has been reviewed by Town Counsel and also a peer review study and a coverage summary.

Mr. Wernick stated he wasn’t impressed with the increase in coverage. He would like to see how the two sites inter-work. He stated he will not be voting on this, but would still like to see the interplay between the two sites, 2 N. Main Street and 215 S. Main Street.

Valerie Gundlah, 22 N. Main Street: stated she is a direct abutter. She received the peer review at 4:30 p.m. today. This report is required by the town zoning bylaws. She would like the decision postponed as she feels this would give her attorney more time to review the report. The bylaw uses the word “shall”, not “may”. She also feels she has presented the board with a lot of back up documentation and the new report is entirely incomplete. This site was not considered a desirable site by the town and does not meet the co-location requirements. Her request for additional information including FCC input is in process. She would appreciate the opportunity to present those findings as well. She asks that the board continue this hearing. According to the minutes of January 14, 2009, Mr. McCarville stated the range can depend on foliage and terrain. There were no further comments.

Mr. Giammarco asked that the hearing be closed. Mr. Lee stated that the members voting will be himself, Mr. Okstein and Mr. Ruskin. Mr. Lee closed the public hearing and stated that the vote needs to be unanimous.

Mr. Lee moved to approve Case No. 1628 for Omnipoint, 2 N. Main Street, as shown on the plans submitted. He stated that the draft decision was approved by town counsel. Motion seconded by Mr. Okstein and voted 2-1-0 (Lee, Okstein in the affirmative; Ruskin in the negative). Motion does not pass. Mr. Ruskin stated he voted against the motion for the following reasons:

SHARON ZONING BOARD OF APPEALS MINUTES OF JUNE 10, 2009 (2)

Mr. Ruskin stated that he has an issue and a concern with placing a tower outside the cell tower overlay district. At some of the previous hearings, he questioned the possibility of using the water tank on Upland Road. He also questioned the area that Omnipoint wished to cover. Their response was they wanted to cover the entire Amtrak northeast corridor. Mr. Ruskin feels that Sharon currently has at least four providers on the Upland Road water tank, all offering coverage of the train tracks. The town’s bylaw states we should co-locate cellular antennas when possible. The applicant’s engineer never disputed that locating on the Upland Road tank would allow Mobile One to cover the railroad track area, but their attorney would state they are looking for a decision on 2 N. Main Street. They obviously did not choose to look at other potential sites. The town and the bylaws call for cellular towers to be co-located preferably on public property. This proposed antenna is neither co-located, nor on public property. Mr. Ruskin stated that his negative vote was not a principled stand against cell towers, but he believes the water tank should have been considered.

8:20 P.M. Omnipoint, Case No. 1626, 215 S. Main Street: Mr. Lee continued this hearing to July 8, 2009 as per request of the applicant’s attorney, Mr. Pare.

8:25 P.M. Sharon Residences, Case No. 1632 Plan Endorsement: Anthony DiCippio, 179 Old Post Road, Joseph DiCippio, 169 Old Post Road and Brian Florek, 147 Old Post Road were present. They had some issues they would like addressed. Mr. Lee stated that the Zoning Board has approved Phases 1 and 2, which included some clear cutting. He also stated that the peer review was done by Tom Houston who represents the Zoning Board. He works to make sure the interests of the town and the abutters are protected.

Anthony DiCippio feels the site has been abandoned. He lives overlooking an empty field filled with debris with dust blowing everywhere. It is a mess. He doesn’t feel he should have to look at this disaster. He met with Michael Intoccia a few times and was apparently mislead. Now that the site has been abandoned, there is constant dust and no one has any answers. He was with Peter O’Cain two weeks ago and he put him in touch with Attorney Shelmerdine. He left messages two weeks ago and hasn’t heard from anyone. He didn’t speak up before because he was on board with what was proposed. Mr. Lee stated he feels the same way and we don’t want it to be like that. Mr. Newman stated there is a question of performance. Mr. Lee asked what can be done to resolve this problem. Mr. Houston stated he performed a site visit today, which was in response to two separate issues. He also spoke with Joe Kent today and he indicated there were concerns about the condition of the site, such as erosion, etc. He also wanted to look at the red house at the end of Laurel Road. The site clearly has been cleared and it doesn’t look the way we thought it should look if we lived opposite it. There is no construction activity so there are no vehicles. The site has re-vegetated itself to an extent. When they took the trees down they left the roots there, which is an erosion barrier. It doesn’t look good, but it will keep the dust down. He is not sure where this gentleman lives.

SHARON ZONING BOARD OF APPEALS MINUTES OF JUNE 10, 2009 (3)

With respect to what can be done, he is not sure what can be done to improve the appearance without building it out. If the summer is dry, they will probably have to address the dust. The applicant may have to use water to keep the dust down. Joseph DiCippio stated how about doing what was proposed. Mr. Houston stated they could construct a fence, which would protect S. Walpole Street. The idea of the fence was to screen the fence from S. Walpole Street, not necessarily Old Post Road.

Mr. Lee stated he doesn’t think we are limited to what is in the plan. At this point, there are things we can do to improve the living conditions for the neighbors, even if it is not what was originally agreed. Things have changed. The town does have the ability to act on the re-vegetation bond. We need to give these people some protection. Mr. Wernick asked if we have any leverage on Michael Intoccia. Mr. Lee stated yes. Mr. Okstein stated the project may not be dead, just delayed due to current situations. It was unanticipated. Mr. Lee stated by him and us. Mr. Ruskin asked if we should put some pressure on this. Mr. Shelmerdine stated the site is delayed, not dead. We are in very active negotiations with the second anchor, which is a grocer and they are hoping that those negotiations will conclude quickly. Target is still with them. They want to begin commercial construction this Fall, which is a delay of about six months. Mr. Intoccia has not sold out and is still an owner of the mall. Mr. McCarville responded “really?” and asked Mr. Houston what he thought. Mr. Houston stated he looked up some lots and they are listed under the Congress Group. Mr. Shelmerdine stated that Mr. Intoccia did not sell his interest and is still a landowner. They have not abandoned the mall and Mr. Intoccia still has an interest in the mall. Mr. Okstein asked about the fence issue. Mr. Shelmerdine stated he would be more than happy to talk to his client about that. From a trust point of view, the vegetation seems to be taking and growing. It sounds like an aesthetic point of view. Mr. Lee stated there are two houses – Ms. Gobi’s and Anthony DiCippio and an empty lot. Mr. Lee stated that if at some point when this project is built out, there will be a fence put up.

Mr. Houston stated the fence doesn’t go down that far, but it could be requested by the board to do so. Mr. Lee stated the applicant could do so because it is the right thing to do. He asked Mr. Shelmerdine to walk the site and meet with the three people present tonight to discuss tree plantings and dust control. Mr. Shelmerdine stated he would like to meet with them some time next week. Mr. DiCippo agreed. Mr. Shelmerdine asked him to call him tomorrow. Mr. Florek stated that everybody in the world was turning around out there and the dust was blowing everywhere. Also, there was an outfit from Mansfield in there working on the trees. Mr. Houston stated that Mr. Florek had indicated there should be a gravel pad there and asked if he meant at the end of Old Post Road. Mr. Florek stated yes. Mr. Lee stated that was discussed at a previous meeting and it was never done. Mr. Lee again asked Mr. Shelmerdine to meet with these abutters and he agreed. Joseph DiCippo asked what if they don’t follow through and Mr. Lee stated we will meet again on July 8^th. He asked the three of them and the site developer to work together.

SHARON ZONING BOARD OF APPEALS MINUTES OF JUNE 10, 2009 (4)

Anthony DiCippo stated he is still in favor of this project, but would like the issues resolved. Mr. Okstein asked that this be put on the July 8^th agenda and if the issues have been resolved he could call and we would remove it from the agenda.

Mr. Lee stated they have about one month left on the bond. Mr. Newman stated they could put up a fence and then move it. He asked if it is a solid fence. Mr. Houston stated it was, but most of it was along S.Walpole Street. It is like a Walpole Woodworkers’ fence. It would block the view at ground level. Mr. Shelmerdine stated it would be for visual purposes and to control dust. He will try and get Mr. Intoccia to come out and discuss this.

Mr. Florek asked if they might be breaking ground in the Fall and Mr. Shelmerdine stated yes. Mr. Florek asked if the road will be underway and also the utilities and Mr. Lee stated yes. This board has approved the layout of the site and the engineering. Mr. Shelmerdine stated they just got approval from Mass Highway to do all the offsite work in front of Shaw’s. They will get either a federal grant or stimulus money.

Mr. Florek questioned the water line and asked if there would be a 12” water line and Mr. Houston stated yes. They are required to put in a line that will loop through the mall, including hydrants.

Mr. Lee sated this isn’t what we thought would happen. We will try and work on this. Mr. Houston stated that Aamir Rashid lives on Laurel Road. His concern was the condition of the red house that was purchased at the end of Laurel Road. It will be torn down. He is also concerned about the condition of the road. There were tree limbs that fell down which have already been removed. He visited the site this morning with Brian Sullivan. He said he will arrange for periodic lawn maintenance at this site. Mr. Rashid was concerned about wild life hiding in the grass, but that should be taken care of when the grass was cut. Mr. Lee asked if Tom responded to Aamir Rashid and he said yes. Mr. Lee stated these are legitimate concerns.

Mr. Lee stated that we have to go over the 40R decision. Mr. Houston gave out copies of a decision that is a combination of drafts 1 and 2. One of the issues the board needs to review is in regard to the affordable units as the percentages changed depending upon the number of units built. He doesn’t feel this is what the town bargained for. This is becoming more and more complicated. This was originally for 29 units. There have been too many deals cut prior to their filing with us.

Mr. Houston stated the revised decision addresses permanent access from Old Post Road, emergency access to S. Main Street, 3+3 affordable housing units, and substitution of new language with regard to the affordable housing units. Mr. Shelmerdine stated that what Mr. Houston did was he actually incorporated all the changes in the draft and made

SHARON ZONING BOARD OF APPEALS MINUTES OF JUNE 10, 2009 (5)

sure there were no inconsistencies. This new draft is a better format. Mr. Lee stated to have 16 pages for 29 units seems like a lot. Mr. McCarville asked Mr. Houston if he got his email today and Mr. Houston stated yes and the new language that has been added addresses only one issue and that is the affordable housing units allocation. As opposed to doing 2+4 units, they will now be doing 3+3. There is no change in the number of units, it is simply a change in the scheduling of them. It should be determined whether or not this is a minor modification. The board could move forward with that if it is minor. If not, they will have to advertise and hold a new public hearing and then vote the major modification. Mr. Houston feels these changes are a benefit to the town. Mr. Lee stated that town counsel also advised the changes are a minor modification.

Mr. Wernick moved that the changes as submitted be determined to be a minor modification. Motion seconded by Mr. Ruskin and voted 5-0-1 (Mr. Newman abstained).

Mr. Lee stated there were some corrections but they were discussed at the last meeting. Mr. Houston feels the board only needs to vote to sign the decision voted on May 27, 2009. Mr. Lee stated that Mr. McCarville is still in opposition and Mr. Wernick and Mr. Lee are in favor. Mr. Shelmerdine stated that this decision is a codification of that vote.

There were no further comments. Mr. Lee endorsed the decision and Mr. Houston stated he will file it with the town clerk.

It was moved, seconded and voted to adjourn. The meeting adjourned at 9:30 P.M.

Respectfully submitted,

Accepted 7/8/09