SHARON ZONING BOARD OF APPEALS MINUTES OF JULY 22, 2009
A regular meeting of the Town of Sharon Zoning Board was held on Wednesday, July 22, 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, Larry Okstein, Walter Newman, Seth Ruskin and Lee Wernick. Mr. Lee opened the meeting at 8:00 P.M.
8:00 p.m. Sharon Residences Discussion, Case No. 1632: Mr. Lee stated there was a meeting with representatives from the Congress Group and Anthony DiCippio at the site. Both Mr. Shelmerdine and Mr. Rudman thought they made progress.
Anthony DiCippio, 179 Old Post Road: stated he met with Mr. Richard Kershaw and Mr. Dean Stratuli. They said they would get someone to the site tomorrow to figure out how to go forward. Mr. DiCippio is confused as they told him not to talk to Mr. Shelmerdine, only to them. Mr. Lee stated he just talked to Bob Shelmerdine and Mr. Rudman, counsel for the Congress Group. Mr. DiCippio stated that Mr. Stratuli was complaining about the money. Mr. Lee stated he was told there was a meeting and they are putting together a proposal regarding financing. They also said there may have to be some tree removal. They don’t want us to discuss this tonight. They should put together a plan and go over it with Mr. DiCippio. Therefore, we will put this on our September 9th agenda. Mr. DiCippio asked if he should just wait to hear from them between now and September 9th? Mr. Okstein stated he should deal with Mr. Stratuli to see what can be resolved. Mr. Lee stated we have the option to use the “look back” clause. We will do that and say these issues have to be addressed. Mr. Lee asked if the board is comfortable with that clause and all agreed they are. Mr. Lee stated that he told them this morning that the board would discuss the look back clause. Mr. Wernick asked if there is any information on the progress of the loan. Mr. Lee stated he didn’t discuss this. He asked Mr. DiCippio to talk with the Congress Group. He continued this discussion to September 9, 2009. He stated they have already put in the turn-around. There were no other comments or questions from the board or the public.
8:20 P.M. Omnipoint, 215 S. Main Street, Continued Hearing: Mr. Lee stated that the voting members will be Mr. Okstein, Mr. Ruskin and Mr. Lee. Mr. Lee stated that the RFP has been put out on the Farnham Road site. Edward Pare, attorney for the applicant, asked if there were any questions on the peer review. He stated there is a gap in coverage. Mr. Lee stated this location is not part of the cell tower overlay district. Mr. Pare stated they feel that the 1966 Telecommunications Act overlaps this district. He knows that the RFP was issued and feels this might become an option at some point. They have said since the beginning of the hearing process that they are looking for a decision on the 215 S. Main Street.
Mr. Lee asked for comments from the public and there were none.
Mr. Lee referenced a draft decision and a letter from town counsel with an opinion on both sites. Mr. Pare asked if the letter is in from town counsel and Mr. Lee stated yes. Mr. Newman stated if we determine that there is a possible alternative to this site, we could deny this petition or continue this until the Farnham Road site information is in. It appears to him that the Farnham Road site might be more acceptable or preferable; however you want to say it. If we deny this, they have to go to court to appeal it or we could leave this in abeyance until Farnham Road is decided. Mr. Pare stated that Ben Puritz told him that the end of August is when it will be evaluated. The thing is they have an existing lease with the town. You might be pitting one group of neighbors against another.
Mr. Lee stated we don’t have to close the hearing tonight. We want to see what happens with the Farnham Road site. He understands that Edward Pare wants to move this process along. Mr. Okstein stated that if the Farnham Road site doesn’t work out or if there is one nay vote, it will be denied. If that is what will happen, why delay this application until August? Mr. Lee stated if we close the hearing tonight and vote it and the Zoning Board does deny it, then they have to refile and go through a whole new hearing again. We could wait for the Farnham Road evidence to come in to see what would be the best site. We wouldn’t close and we wouldn’t vote tonight. Mr. Ruskin stated we could have a bigger problem by doing that. Mr. Newman asked how the lease is written – subject to approval from the zoning board? Mr. Lee stated yes. Mr. Newman stated if we deny this, that would be the end of their lease. It would go away.
SHARON ZONING BOARD OF APPEALS MINUTES OF JULY 22, 2009 (2)
Mr. Lee stated he is not sure how the vote would go tonight if we close the hearing. Mr. Newman stated we have to live with this forever. Mr. Pare stated the board has an obligation under the Telecommunications Act to move forward. Mr. Lee stated that this board has never stalled any project. We are waiting for more evidence on this one. Mr. Pare stated that the Farnham Road site is not available to them and Mr. Newman stated it might be. Mr. Pare asked the board to make a decision. Mr. Lee stated not until we find out about the Farnham Road site. If another carrier comes in, they could co-located on it. Mr. Pare stated we could go round and around. His experience with this board has been very frustrating. Where is the cooperation? You told us to go to the DPW and then you would deny us? Mr. Lee stated we didn’t tell you to go to the DPW. Mr. Pare stated the Board of Health did. Mr. Wernick stated we are only trying to be protective. Mr. Pare stated he is asking for his due process. Mr. Okstein stated he is not sure we will have any further information to be further along on September 9, 2009. Mr. Lee stated within a month they have issued an RFP on Farnham Road site. That closes on August 31, 2009. Mr. Okstein stated that on September 9th, the petition may be in, but we may not know who got the RFP. Mr. Newman stated we will know if it is a viable site. We will know if that site will work. Mr. Pare stated he told the board it will work for T-Mobile. You are looking at a couple of months until after that before a lease will be in place.
Mr. Okstein stated he views multiple continuances as a constructive denial. Mr. Pare stated the board’s extension will run out. A federal law says these have to be done in a timely manner. He stated the board has 100 days from the date of the application, which brings us to September 8th, although he has extended this every month.
Mr. Newman stated that a tower at the DPW will be much more prominent that at Farnham Road. Mr. McCarville asked what about a reduced height, say 120’ instead of 140’? Mr. Pare asked if the board is concerned about health issues and Mr. Lee replied no. Mr. Okstein stated we are concerned about height issues, decrease in property values and the overlay district issue. Mr. Pare stated they addressed those issues to the extent that they can. Mr. McCarville stated he would agree to only one more extension.
Mr. Lee continued this hearing to October 28, 2009 at 8:00 P.M.
Mr. Pare objects to the extension and will not sign an extension.
9:00 P.M. Steven and Maria Cushman, Case No. 1637, 104 Glendale Road: Mr. Lee read the public hearing notice. He stated that the voting members will be Mr. Lee, Mr. McCarville and Mr. Wernick. The applicant was represented by Atty. Joel Fishman and Richard Merrikin, Merrikin Engineering, Millis, MA. Mr. Lee read letters from Jim Andrews and Greg Meister.
Mr. Fishman stated that the lot was created in 1989 via an ANR plan. Mr. Wernick asked if it was legal to create this lot at that time and Mr. Fishman stated it appeared to be a conforming lot, but there was an engineering error. It is the lot width that is the problem.
Mr. Merrikin stated that 20 years ago the Cushman’s asked him to do an ANR and he did it. It was reviewed by the Planning Board and Engineering, the plan was voted, signed and recorded. The Board of Assessors have been billing them as two separate lots since that time. Mr. Fishman stated his client moved away but kept the undeveloped lot. Mr. Merrikin stated they never intended to create a non-conforming lot. They could have fixed it if they owned the two properties. They do feel the lot does generally follow what the town is looking for. They are only talking about 3”. It has been assumed for all these years that this was a buildable lot. Mr. Fishman stated that technically the frontage only needs to be 66’, but they have 100’.
Mr. Lee asked when did the Cushman’s sell the main house. Mr. Merrikin thinks it was in 1989, but they held onto this lot. Mr. Wernick stated he is not sure we have the ability to grant this. Mr. Merrikin stated that the fact here is that the owner was totally unaware. They had no way to know it. They didn’t know they created this hardship. Mr. Lee asked if they know for a fact that this has been existing as a buildable lot? Mr. Merrikin stated yes. He checked it out himself. Mr. Wernick stated this is a self-created hardship.
SHARON ZONING BOARD OF APPEALS MINUTES OF JULY 22, 2009 (3)
Mr. Lee stated what if someone buys this and then comes in and asks us for a variance? Mr. Fishman stated the board did the same thing four years ago with the Jamieson’s on Pleasant Street. Mr. Lee stated this is not the same as the Jamieson location had a setback problem and Glendale Road is a dimensional problem. Mr. Merrikin stated this is just an error. Mr. Lee stated that where it is still owned by the people that created the hardship raises some questions. Mr. Fishman stated it is only a couple of inches. Mr. Wernick stated he is concerned with precedents. Mr. Ruskin asked why can’t the new owner give them the 3”?
Lois Miller, 112 Glendale Road: stated she is the new owner and her main concern is the septic system. There is poor drainage on that part of Glendale Road. There is a similar problem like this at 94 Glendale Road. It could require a mounded system. What recourse did she have if there is a problem with the system? Mr. Merrikin stated that the Board of Health doesn’t allow mounded systems for new systems. It has to be in the ground. Mr. McCarville asked what if it doesn’t perk? Mr. Merrikin stated it would not be a lot. Mr. Lee asked why they haven’t gone in and done soil tests and Mr. Merrikin stated the chair wants to make sure it is a buildable lot. Mr. Wernick asked why the seller didn’t do it. Mr. Lee stated that the zoning board is the last stop. We would never approve a new house to be built on something. We want to seek input from the Board of Health. Mr. McCarville stated that is the norm.
Mr. Fishman stated he is wearing two hats tonight. He is representing the buyer also. Mr. McCarville stated he is surprised that Mr. Fishman came in without Board of Health approval. Mr. Fishman again stated he is wearing two hats. Mr. Newman asked why the Cushman’s would pay taxes on a lot that they never perked to make sure it is a buildable lot? Mr. Lee asked if we should wait for a response back from the Board of Health? Mr. Merrkin stated you mean would it be approved or not? Mr. Lee stated he has a problem approving something that needs additional approvals. Mr. McCarville agreed with him. Mr. Merrikin asked if the board wants an approved septic plan or do you want proof that the soil tests okay? Mr. McCarville stated we want both a plan and testing results. Mr. Lee stated he doesn’t feel we are compelled to approve this. We are sensitive to undersize lots and feels we should send this to town counsel regarding precedents.
Mr. Okstein stated there is a difference between oversize lots put in by design and this which they thought was a conforming lot. Mr. Lee stated that when the Planning Board approved this, they were satisfied that it met the frontage and access requirements.
There were no comments from the public.
Mr. Lee would like to continue this. He stated we need a letter from the Board of Health stating it is a lot that be built with a septic design. Mr. Lee asked Ms. Miller if she had any more questions and she said no.
Mr. Lee stated they need to come back to the board with a plan that says they can do a septic system. Ms. Miller stated she lives in the house on the big lot and that she was never asked to sell them 3”. Mr. Merrikin stated that the Cushman’s did not ask to do that, but may want to down the road.
Mr. Lee continued this hearing to September 9, 2009. He asked the applicant’s attorney to get a letter from Jim Andrews. He also stated we will send this to town counsel for an opinion.
9:40 P.M. Sharon Residences Plan Endorsement, Case No. 1632: The applicant was represented by Jesse Moreno. Mr. Lee stated he is concerned with how the access is shown from Old Post Road. Mr. Moreno stated there is another set of plans that Tom Houston has. Mr. Wernick stated he would like to see those plans. Mr. Lee stated that no where does it show the access and how it will come in. Mr. Moreno stated that is not the way the decision is written. Mr. Lee stated he wants a plan that shows how they are
going to access the site if they started building tomorrow. Mr. Moreno stated that the decision says “prior to review”. Mr. Wernick would like a copy of the decision.
SHARON ZONING BOARD OF APPEALS MINUTES OF JULY 22, 2009 (4)
Mr. Moreno stated that the decision says that temporary access to Old Post Road may be allowed and there are building permits pulled and building started. Mr. Wernick stated he feels this needs to be clearly defined and it is not decoupled at all. Mr. Newman asked if these plans get reviewed by Peter O’Cain and Mr. Lee stated that Tom Houston reviewed these.
Mr. Ruskin left at 9:50 P.M.
Mr. Houston arrived at 10:00 P.M.
Mr. Lee asked Mr. Houston if he reviewed both sets of plans and he stated no. Mr. Okstein stated he doesn’t want to sign them until Mr. Houston does review them. Mr. Houston doesn’t think that will be a problem.
Mr. Shelmerdine arrived at 10:05 P.M.
Mr. Lee informed Mr. Shelmerdine that the board wants to see the access road coming in. It is shown on another plan, but not this one. He asked why? Mr. Shelmerdine stated it is off-site stuff. Mr. Houston was to review one set thoroughly, but not the other set.
Mr. Newman left at 10:10 P.M.
Mr. Shelmerdine stated that the decision states they are to build three bridges. To do that they need to have this plan approved. What is on this plan is the more than likely way it will be done. He can’t have the gas and utilities start their work without an endorsed set of plans. Mr. Wernick stated he is not comfortable
without the second plan being made a part of this package. Mr. Shelmerdine stated the board has enough in front of them to endorse this set of plans and then to have them held by the Zoning Board. Mr. Lee stated we are under a time limit to endorse these plans. They are quite thorough, so why wasn’t the second sheet attached? If Tom Houston reviews this and finds a problem, we will be in a mess. Mr. Shelmerdine stated they will make it part of the plan set. Mr. Houston stated that the issue is that if there is something wrong, he is not sure it can be incorporated at a later date. Mr. Shelmerdine stated they will take care of this in the next several days and have a complete set in front of the board in the next several days.
Mr. Lee stated he would like the conditions of approval that are reflected in our decision put on the plan.
Mr. Okstein left at 10:20 P.M.
Mr. Houston stated that the conditions will be listed as part of the plan set.
Mr. McCarville moved to approve the set of plans after review by Tom Houston showing conditions of approval and further Pages TA-1 and TA-2 will be incorporated into the plan. Motion seconded by Mr. Wernick and voted 3-0-0 (Wernick, Lee, McCarville).
It was agreed that the plans would be endorsed when the above conditions were met.
It was moved, seconded and voted to adjourn. The meeting adjourned at 10:38 P.M.
Respectfully submitted,