SHARON ZONING BOARD OF APPEALS MINUTES OF APRIL 28, 2010

A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, April 28, 2010 at 8:00 p.m. in the Lower Level of the Town Office Building.  The following members were present:  John Lee, Chairman; Kevin McCarville, Secretary; Lee Wernick, Seth Ruskin, Larry Okstein.

Mr. Lee opened the meeting at 8:03 p.m.

8:06 P.M. T-Mobile Omnipoint Settlement, 2 N. Main Street, Case No. 1628: Settlement:  Richard Gelerman, Town Counsel, was present.  Mr. Lee stated that there were no neighbors present.  He stated that Omnipoint has presented town counsel with a settlement agreement and town counsel has reviewed this.

Mr. Gelerman stated that one of the changes is to move the mechanics or electricals for the antenna which are presently in the tower to underneath a staircase inside the building.  They submitted plans showing this change.  Omnipoint has also agreed to reimburse the town $10,000 for counsel fees and $2500 for an annual study of the emissions.  Mr. Gelerman feels these are realistic numbers.  Once the board’s decision is rendered and the appeal period runs, the case will be dismissed.

Mr. Okstein asked what happens if the emissions are high.  Mr. Lee stated they will have to come into compliance with FCC.  Mr. Gelerman stated they have kept Paul Schneider, counsel for the appeal, involved in this settlement process.

There were no public comments.

Mr. Okstein moved to settle the T-Mobile Appeal, Case No. 1628, as per input and recommendation of town counsel.  Motion seconded by Mr. Ruskin and voted 3-0-0 (Lee, Okstein, Ruskin).

8:10 P.M.        Sharon Middle School, 75 Mountain Street, Case No.1650 Continued Hearing:   Mr. Lee continued this hearing to May 12, 2010 as per request of the applicant.

8:12 P.M.        Sharon Commons, Case No. 1653 (revegetation bond):  Mr. Lee read the public hearing notice.  Mr. Gelerman, town counsel, was present.

Mr. Gelerman stated that when we issued site plan approval for this project, there was a security in the form of an $8,800 letter of credit, which was anticipated at that time for be sufficient.  The letter of credit expires on May 1, 2010 at 5:00 p.m.; therefore, there will be no security to secure restoration after that date and time.  The options at this time are:  Option 1) determine a reasonable cost of restoring the premise before any work was done.  We can authorize a draw against the letter of credit.  We would need to notify the bank issuing the letter of credit that any conditions have been met.  Mr. Gelerman talked with the bank today.  Option 2) not to call the existing letter of credit, but accept a new letter of credit from a different banking facility.  Boston Private Bank and Trust have agreed to this if this is what the board votes.  The terms will be the same as the previous bank.  Boston Bank has a 4-star rating out of five stars. Mr. Gelerman feels it would be a waste of time to talk about other securities.  What is now different is what we are seeking to secure now as opposed to what we were securing in the beginning of this project.  Counsel has advised him they are willing to stop work on the site until they come back and revise the Letter of Credit so the town will be protected.  The board needs to determine the cost and tell him how they wish to proceed.  He does have the original draw request with him.

Mr. Lee stated that the original Letter of Credit was in the amount of $880,000 for a two-year period.  He asked the time length on the new one.  Mr. Gelerman stated it is one year with an automatic renewal for another year unless thirty days prior to that they are noticed that it won’t renew.  Mr. Lee who’s option and Mr. Gelerman stated the issuer.  He stated that thirty days before May 1, 2011, they would send a notice.  Mr. Wernick asked if all the technical issues and terms are the same.  Mr. Gelerman stated the bottom line is yes, although the language is different.  Mr. McCarville asked why should we switch and what would be the advantage.  Mr. Gelerman stated he can’t answer that.  Atty. Richard Rudnick stated the relationship with one of the members of the Congress Group has changed.  The $880,000 Letter of Credit was obtained with a signature.  Boston Private is the bank that the Congress Group uses.  It is a solid bank and highly rated.  Mr. McCarville stated that Mr. Gelerman had said the language is different.  Mr. Gelerman stated the private bank will pay on the assurances of a draw request and it is as liquid and as available as the other one.  He stated he will ask them to sign the draw request and he will hold it.  Mr. Rudnick submitted a letter to the board which is written confirmation from the developer that no additional work will be done on the site until the Letter of Credit is agreed to by the board.  Mr. McCarville asked if they anticipate soil samples to be different now than those done in 2008.  Mr. Rudnick stated they just want to be ready.

Mr. Lee stated that right now we have an $880,000 Letter of Credit that was done two years ago.  Now the developer wants to reduce that Letter of Credit.  Thomas Houston stated the $880,000 security is based on one of the conditions of approval.  It addresses the restoration and stabilization of the site. The original $880,000 was intended to restore the site to a condition that doesn’t pre-exist.  It was based on the applicant removing all the top soil and leveling the site.  It would be barren and the project would not go forward.  What actually happened was that trees were removed from the site but not top soil.  Vegetation has started to re-establish itself on the site where loam was left.  There are areas on the site that equal approximately five acres, that doesn’t have top soil.  They will spread 4” minimum of top soil and then hydroseed with a woodsy mix of tree seedlings and wild flowers that has an agent that binds the hydroseed together.  In addition, they recommend accelerating the revegetation process by using plants and other seedlings in these areas.

Atty. Bob Shelmerdine showed pictures of the actual site conditions to the board.  He also showed a site in Plymouth that already was restored. Mr. Houston stated the original site installation bond only encompassed Sharon Commons property. They have added areas within the right of way of Old Post Road. It wasn’t part of the original security, but they felt it should be added.

Mr. Lee asked Mr. Houston to point out on the plan the sandpit where all the materials have been removed. Mr. Caputo stated it is where there are no trees.  Mr. Lee stated there were trees there. Mr. Shelmerdine stated that Mr. Caputo thought he was referencing the northern part of the site.  Mr. Caputo showed where the most tree growth is on the site now, some of them being flowering trees. They are taking top soil that remains in a large pile on the site, spreading it to a 5” depth over the five acres and then planting 1-2” seedlings. Mr. Houston stated the tree replacement numbers are based only on the five acres that are barren. This is all as per Condition #7 of the approval.  Mr. McCarville asked how many trees were taken from this site.  Mr. Houston stated they were all mature trees.  To plant seedlings is to hurry the process along.  Mr. Caputo stated it was about 2,000 trees.  Mr. McCarville stated the logging company probably kept track of this and there should be an invoice.  Mr. Caputo stated it was up to them and they didn’t track it.  Most of it was chipped.  They paid the guys on a “per acre” basis.  Mr. Houston stated his rough estimate is that about 2800 trees were removed over the entire 57 acres.  Mr. Lee asked Mr. Houston for his numbers to restore the site and who is the current owner of the property.  Mr. Shelmerdine stated the owner is CFII and the principal is Dean Stratoli.  Mr. Rudman stated that Dean is the controlling manager and controls other limited partnerships. There has been no change in ownership since they acquired the site and started the process with the Zoning Board of Appeals. Mr. Houston stated that with respect to the five acres, they came up with a number of $80,000.  He is also aware that there is some concern about planting seedlings over the entire 57 acres.  He stated if you focus on the five acres and plant the seedlings there it would amount of $150,000.  Mr. Wernick asked what it would be if they did the entire site.  Mr. Houston stated that $150,000 only includes the restoration of five acres.  Mr. McCarville asked the odds of those trees coming to light, 60%?  Mr. Houston stated it depends on when you plant them meaning the time of year.  Mr. Wernick asked if the board wants more trees, how does that number escalate.  Mr. Houston stated it depends on the species; typical hardwood could cost $100-$200 per trees.  Mr. Rudman stated the size and species to be used on site is addressed in the decision. Further, the board is not giving any credit to the trees that are already established on the site.  Mr. Lee stated they don’t have a healthy eco-system.  It was a mature healthy forest.  He told Mr. Houston that as a consultant for the ZBA, he has to come up with a Letter of Credit number that he feels would be reasonable to restore this site and asked if that number is $79,000.  Mr. Houston stated yes. Mr. Lee asked where the top soil is coming from and Mr. Houston stated there is a pile that came from the Old Post Road area.

Mr. Ruskin left at 8:50 p.m.

Mr. Lee asked if Mr. Houston is positive this material that is on the Old Post Road site is available and he stated it is.  Mr. Caputo stated there is an 8-10,000 cubic yard pile.  It just needs to be screened and spread and he feels that supply is adequate.  Mr. Lee stated he feels these estimates are low, including tree density.  He came up with $169,000 for site restoration, which includes the loam and also bringing the materials onto the site.  He feels the board needs to protect the interest of the town.  Mr. Okstein asked if that includes the entire site and Mr. Lee stated yes.  He figured the entire site of 5,000 trees at $15/tree including planting of the trees.  This is based on a full site installation.  Mr. Caputo stated the original estimate only said 2600 seedlings.  Mr. Lee stated we are discussing the cost to revegetate the site.  Mr. Okstein stated that Mr. Houston’s figure was $150,000 to do the whole site.  We are talking about $150-169,000.  Mr. Caputo stated you would be throwing good money at bad.  Mr. Lee stated we want to protect the interest of the town.  You had an $880,000 Letter of Credit and you want that reduced.  $150,000 or $169,000?

Mr. Wernick stated he is unhappy with this project.  He would like more than $169,000.  Mr. Okstein stated $169,000 or $170,000, not much higher.  Mr. McCarville doesn’t want to budge off the $880,000 as he feels that would be in the best interest of the town.  This is the only surety the town has.  We are the last stop to protect the town. He feels they have audacity to come here and ask for $79,000.  Mr. Intoccia stated they cut the trees to show people where the stores are going and they did dig down to do test pits.  He agreed with $880,000 at that time.  They also did it to try and get vendors out there.  Mr. Rudman stated he wants to make sure that everyone understands that the developer will never make a profit on this site.  It is about cutting trees and doing right by the town. When they started the market was 40% higher than it is today.  They are moving forward with leasing.  No one should be thinking this site will not go forward.  They have a signed agreement with Target and almost a final with BJ’s, which should be signed in a couple of weeks.  Mr. Wernick asked if they have leases or signed agreements.  Mr. Rudman stated that Target will own their own store and BJ’s is a lease. This project will be getting under construction late this fall or next spring.  These stores are tying up rock bottom prices for a long time.  Mr. Lee asked if he is saying they have a P&S with Target and Mr. Rudman stated yes. Mr. Lee asked if they understand the Design Review Committee and that they need their approval.  Mr. Rudman stated to tie up more money that is necessary is a burden.  If the board would accept the $150,000, it would be easier and cheaper for them. They could go to the site with Tom Houston and identify trees that are already on the site that meet the criteria of the board’s decision.  They could get credit for those trees and could then reduce the Letter of Credit below $150,000.  Mr. Wernick stated he is not interested in any deal.

Mr. Shelmerdine stated he has been working on this with town counsel, the Congress Group and himself and it was determined that Tom Houston should be an estimate to restore the site per the original decision.  Mr. Houston came up with $79,000 or $150,000 for the entire site.  Mr. Wernick stated he understands that but that he is not comfortable with that.

Mr. Lee asked for comments from the public.

Ed McSweeney, 68 Old Post Road:  he is concerned about his well.  The trees are gone and his well is in danger.  He hasn’t tested it lately, but could have a reading for the board in a week. Mr. Lee stated he feels the neighbors should be protected, but he doesn’t want to get involved with counting trees.  Mr. Intoccia stated he does have all the loam on site.

There were no further questions.

Mr. Lee asked Mr. Gelerman what type of vote they need and that there will be three members voting.  Mr. Gelerman stated that 1) there needs to be a vote to accept a new Letter of Credit in a definite amount; 2) authorize town counsel to draw on the Euro Letter of Credit in a definite amount; 3) that the developer is to do no further work on the site except as stated in the letter dated today.  Mr. Shelmerdine stated that should involve fixing fences, erosion control, etc.  Mr. Gelerman stated he needs a letter in hand by tomorrow at 4:00 p.m.; 4) the board should continue this hearing and issue a modification to the site plan approval to determine the terms of the materials that the new security will secure, which basically means the board would have to set forth what the Letter of Credit is securing in a definite amount.  Mr. McCarville asked if they need more than one vote.  Mr. Gelerman stated only one vote; a majority vote or two persons in the affirmative.  The $880,000 is irrelevant for what we are doing today.

Cindy Amara, Gelerman & Buschman stated that before they put a shovel in the ground, the board can increase the Letter of Credit.  Mr. Lee stated he doesn’t want to give up any protection to the town.  Mr. Shelmerdine stated the board has an estimate from their own consultant in the amount of $79,000.  They also have an additional decision that if you give no credit for the seedlings that are already on site, it would be $150,000.  Mr. Rudman stated he has already asked for credit for those seedlings, but the board has said they don’t want to do that.  There is a big difference. Mr. Houston stated it was $152,000; Mr. Lee stated $170,000.

Mr. Lee moved that the board accept a new Letter of Credit from Boston Private Bank and Trust in the amount of $170,000 and to authorize town counsel to draw on the existing Euro Letter of Credit in the amount of $170,000 if the Boston Bank and Trust Letter of Credit is not delivered to town counsel by 4:00 p.m.; that the developer is to do no further work on the site other than as set forth in the applicant’s letter dated April 28, 2010 until authorized by the board and a new security is provided and acceptable to the board; this hearing will be continued for the purpose of determining the terms of the modification of the early site work decision dated May 14, 2008.  Motion seconded by Mr. McCarville and voted 2-1-0 (Mr. McCarville voted against the decision).  Motion carried per town counsel.

Mr. Shelmerdine stated they will come back for a modification to the actual decision and to talk about a new Letter of Credit.  Mr. Lee put this on the June 9 agenda as a new hearing, which needs to be advertised.

9:25 P.M.        Sharon Commons, Case No. 1653 – New Hearing:  Mr. McCarville read the public hearing notice.  Mr. Lee read a letter from Jim Andrews, Health Agent.  Mr. Lee read a letter from Frank Gobbi, an abutter at 91 Old Post Road, in opposition to this petition.  Mr. Meister, Conservation Agent, was present at the meeting and had no comment at this time.

Mr. Lee stated we have other hearings tonight; therefore, we will open this hearing, allow the petitioner to give the board an explanation and then it will be continued to a future meeting.

Atty. Bob Shelmerdine, representing Sharon CF II, stated the point of this application is to submit a revision to the overall original site plan approval and to ask for a special permit for the Anchor #1 building.  Their prototype is new and serves a different audience.  They want 85,000 s.f. instead of 80,000 s.f.  Mr. Lee stated it represents a New England style living village.  Parking was intentionally broken up by the requirement of the bylaw.  Mr. Shelmerdine stated that this modification changes the original site plan.  They would like to approach this in segments:  1) address why they are making changes from the approved plan to the new plan; 2) review what has changed and why it has changed.  Mr. Stratoli started this project in 2006. The vacancy rates became very high after 2007 and the retail world has changed dramatically.  Life style centers are no longer being accepted by the retailers.  We have one of the ten new Target stores in the country. They use to do about 40 per year.  Legacy Place in Dedham is a good example of this change.  We have responded to the current market.  The new plan is what is being accepted by retailers.  BJ’s will be ready to sign in a few weeks pending approval of the additional 5,000 s.f.  They can’t build what use to build in the 60’s, 70’s and 80’s.  Target and BJ’s have accepted a new concept.  They create the village feel with the center line of in-fills.  This also has far less environmental impact and is leasable. They have letters of intent from a 12-screen movie theater, restaurant, and two junior anchors. The common theme is people would like to drive in, get out of their car in front of a store and shop. We love the original concept, but they know it won’t work today. They have a way to go, but will come back to the Zoning Board to get this project right.  They are walking a tight rope right now with what the board is demanding and what the retailer wants.  Dedham and Hingham have been very successful.  They hope the board is receptive to working with them.

Beth Greene, 11 Huckleberry:  what kind of mix are you trying to target?  Mr. Starboli stated Talbots, Coldwater Creek and many restaurants.  Mr. McCarville stated we lost professional spaces for lawyers, etc.  Mr. Rudman stated that area was reduced by 1,000 s.f.  Mr. Shelmerdine stated it is almost the same as it was.  Ms. Greene stated that retailers are insisting on parking in front of their stores. 

Mr. Meister asked the applicant to send him a copy of the revised plans.

There were no further comments.

Mr. Lee continued this hearing to June 9, 2010 at 8:00 p.m.

9:55 P.M.        Donnell Murphy, 1245 Boston Providence Highway, Case No. 1651 – New Hearing:  Mr. Lee read the public hearing notice and letters received from Jim Andrews, Health Agent  and Greg Meister, Conservation Agent.

The applicant was represented by Richard Merrikin, Merrikin Engineering.  He stated this building was formerly occupied by Mattress Discounters.  They will be renting out half the building and also the septic system on site is okay.  The building was built in the early 1970’s with paved parking in the front with a common driveway serving two properties.  They are seeking simply a change of use and will not be adding anything onto the building. 

Mr. Merrikin stated they are seeking 1) a special permit under Section 2334.  They will rent out inflatables within the facility for private kids’ parties; however, they won’t supply food as the people will bring in their own; 2) they are seeking a vote of the board to allow parking in the front of the building and would like the board to authorize what exists today, but will add a few additional spaces.  They are asking to pave the gravel spaces; 3) they are also seeking a special permit to allow 54% impervious cover.  Presently, there is 45%, but it will end up at 54% when done.  Mr. Merrikin stated they are installing drainage.  They meet the stormwater management regulations as per the town and DEP and do infiltrate the volume under the regulations; 4) a new septic system was put in a few years ago and therefore would like the requirement for 25’ borings on the site removed.  Mr. Lee agrees with him.  He asked if there are any wells on site and Mr. Murphy stated no; 5) some of the paving will be in the wetland setback.  Mr. Lee asked why they are not leaving the gravel parking.  Mr. Merrikin stated that Joe Kent thought it should be paved.  Mr. Murphy stated they will probably use the far end of the building for Jump Trax, which will attract people with kids, and this location would be safer, but they don’t want to interfere with truck traffic or other uses in the building.  Mr. Lee stated that the safety issues are acceptable to him; 6) the other option would be to grant a variance.  Mr. Lee stated we tend to grant special permits, not variances; 7) the proposed changes are not detrimental to the neighborhood.

Mr. Merrikin stated they will be treating a good portion of the water and the Conservation Commission feels this will improve the site. 

There were no public comments.

Mr. Merrikin introduced the two owners of Jump Trax.  Mr. Lee stated he thinks this is a positive improvement for the town.

Mr. Lee stated the board will approach this application as requesting special permits.

Mr. McCarville moved to grant the relief requested for all special permits under all the sections as requested and as shown on a plan dated February 18, 2010 by Merrikin Engineering.  Motion seconded by Mr. Wernick and voted 3-0-0 (McCarville, Wernick, Okstein).

10:20 P.M.   David Nelson, 10 Massapoag Avenue, Case No. 1652 – New Hearing:  Mr. Lee read the public hearing notice and a letter from Jim Andrews, Health Agent, stating there were no objections.  Mr. Nelson stated his septic system is only three years old.  Mr. Lee stated the reason Mr. Nelson is here is because his lot is nonconforming.

Mr. Nelson stated he is proposing to put a set of stairs 9 ½’ out front.  He is set back farther from the street than his neighbor.  They want to do some work to the front of his home to improve the façade.  When they bought the house, they were told the deck would need to be improved.  His wife fell off the deck and now has permanent damage.  Therefore, they needed to address the stairs.  They are proposing to add a gazebo to give protection from the wind off the lake.  Steps will go down from the middle of the deck, turn and go toward the driveway.

Mr. Wernick stated we need a measurement from the street to what you are proposing to build and we need a certified plot plan.  Mr. Nelson stated he had the property surveyed.  Mr. Wernick stated we need an updated plan and Mr. Lee agreed with him.  He is trying to figure out if there is a way around this, but it is a tight lot over by the lake. We will have to continue this hearing until Mr. Nelson submits an updated plot plan.  Mr. Okstein and Mr. Wernick agreed although they both feel what Mr. Nelson is requesting is okay as it is only a set of stairs.  Mr. Lee stated that in fairness to the Building Inspector, we need an accurate plan.  He asked Mr. Nelson if he was under a time constraint for this.  Richard Powell,  a member of the Board of Selectmen, stated the board could voted to approve this with the condition that a certified plot plan by provided showing the existing construction and where the proposed steps are going.  Mr. Lee stated the board doesn’t typically vote conditional approval.  He asked Mr. Nelson if he could have an updated plot plan to the board by May 12^th and Mr. Nelson stated yes.

There were no public comments.

Mr. Lee continued this hearing to May 12, 2010 for the purpose of receiving a revised plot plan.

It was moved, seconded and voted to adjourn.  The meeting adjourned at 11:00 p.m.

                                                Respectfully submitted,

Approved:  9/22/10