SHARON ZONING BOARD OF APPEALS MINUTES OF DECEMBER 8, 2010
A regular meeting of the Town of Sharon Zoning Board of Appeals was held on Wednesday, December 8, 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, Larry Okstein and Seth Ruskin.
8:02 P.M. AT&T Cingular Wireless, 698 Mohawk Street, Case No. 1656 Continued Hearing: Mr. Lee stated the applicant is seeking a 120’ cell tower in a residential area. He stated that a peer review which was performed at the applicant’s expense was done by Ivan Pagacik of IDK. Ed Pare, Brown & Rudick representing the applicant, stated they were unsuccessful before the Conservation Commission, who told them to relocate the tower back from where it was originally proposed. They also have a new set of plans for the Zoning Board showing a shift in the proposed tower so they will no longer need approval from the Conservation Commission. It is now closer to the MBTA property line. Mr. Lee pointed out that it is right next to the MBTA line and Mr. Pare stated it is approximately 22’ and the height will remain at 120’. He stated that he talked to Ben Puritz shortly after Thanksgiving and was told the town intends to issue an RFP for the town well site #6. In order for AT&T to use the well site, the tower will need to be 180’ high. Mr. Pare also inquired of the other town sites and knows that each has its own issues. Mr. Puritz stated that the well head site is the only site the town has right now. They did discuss timing and are looking for a January/February situation.
Mr. Lee stated that as per his conversations with Ben Puritz, Well #6 which is located off Wolomolopoag Street will have to go to bid and to town meeting because of a current use restriction. It couldn’t get on the November warrant, but according to Mr. Puritz it will be on the May warrant.
Ivan Pagacik stated he did the peer review for the town. He provided a report to them back in September and is prepared to discuss that report tonight if that is what the board wants. He stated he looked at the proposed site, what is existing in Sharon and also in nearby towns, such as Foxboro. He reviewed the existing coverage in Sharon and also reviewed the proposed location at 120’ to see the coverage afforded at that site. They looked at the coverage if the tower was reduced to 90’ to see what the impact would be. They also looked at the existing Massapoag water tank and the National Grid high tension lines at Ward’s and town’s dog park along with several other locations. They also looked at lowering the tower at Mohawk Street and at Well #6. They determined that 1) the Town of Sharon is not covered by AT&T; 2) the proposed site at 120’ provides good coverage to Sharon; 3) if the tower is lowered to 90’, it will still provide a decent amount of coverage. There are also two other places in town that should be looked at as potential alternatives, but they will require further review. Foxboro Street also provides decent coverage, which makes it the next best preferred location.
Mr. Lee stated that Mr. Pagacik had said they are asking for a 120’ tower, but in your opinion 90’ works, not as well but it does give coverage to fill the gaps. Mr. Pagacik stated there will be a need for additional sites in the future.
One of the Mohawk Street abutters asked what about Farnham. Mr. Pagacik stated he wasn’t asked to look at that site so he cannot comment at this time. The abutter asked if he looked at adding onto an existing tower and Mr. Pagacik stated yes.
Barbara Yankowski, Mohawk Street asked if anyone looked at any other tank and Mr. Lee stated we have looked at a number of locations and one is a different coverage area. Mr. Pare stated that some of the town-owned sites will not be in play according to Ben Puritz. Further, they disagree with Mr. Pagacik’s conclusion on the 90’ height.
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Dan Goulet, AT&T Mobility Contractor stated there are two reports. One dated December 3, 2010 was sent last week and he gave a copy of the other report dated December 7, 2010 to the board tonight. He stated he has reviewed all the sites referenced in Mr. Pagacik’s report, but some of them have been eliminated by the town. He said that some of the existing sites are in Foxboro, Walpole or Stoughton. People want wireless services now, not just some coverage. What AT&T is trying to do is get as much coverage possible to the people in Sharon and also to commuter traffic. The antennas cannot be higher than the tower. Some of the sites are in Conservation areas or wetlands and there is no access to them. According to the Town Administrator the only site that will be available is Well #6. They do concur with a lot of what Ivan Pagacik presented. The Foxboro site is in the wetlands and therefore it is not being considered. They liked the Norfolk Street site and feel it might work for them, but it is apparently not available. They asked what height they have to get to in order to achieve the same height as Mohawk Street.
Seth Ruskin questioned co-locating on the Farnham Street location and asked to see the drawings again. Mr. Lee stated that 180’ is really high. The board would need some support from everyone to get that through. He asked the elevation depth between Well #6 and Mohawk Street. Mr. Goulet stated 5’, but the issue is location.
Mr. Lee asked for comments from the public.
Buzz Yankowski, Mohawk Street questioned the railroad tracks and stated Amtrak doesn’t care where they put it. Mr. Lee stated that is correct.
Kim Kokkotos, 19 Colburn Drive asked if anyone has spoken to the people in Foxboro about using their sites along the Sharon line. Mr. Pare stated no. Ms. Kokkotos feels that should be done. Mr. Lee stated that nothing in Foxboro will provide coverage toward the Heights. Mr. Goulet stated that Cannon Ball Road is close to the line, but it doesn’t meet a quarter of their objectives. Ms. Kokkotos asked if the town rejected the other sites mentioned or did the applicant. Mr. Lee stated the town is only interested in the Well site as of tonight. At one time the Well site wasn’t offered, but it is now. Cell towers are coming to this town and we are bound by law to provide for them. The question is where are they going to go, so we need to try and put them in the best location.
Judy Levy, Manomet Road asked if Ben Puritz is entertaining only the Well site. Mr. Lee stated that Ben Puritz said that Norfolk Place has other problems and therefore he expressed reservations about that site. They want to find the best site in a timely fashion. Ms. Levy questioned the rigmarole we have to go through. Mr. Pare stated that eventually we have to go to town meeting to approve the lease and to then put the area into an overlay district. There is some restriction that some sites can only be used for specific uses. Mr. Lee agreed and stated that town meeting would have to vote to allow different uses on some sites. Ms. Levy asked if AT&T will wait. She feels the town should have a deadline. Mr. Pare stated that as long as movement continues, they will move forward. If town meeting denies it or they don’t see any movement, they will ask for a decision. Ms. Levy again stated there should be a deadline.
Joe Rando, 23 Colburn Drive questioned if the board is bound by law to let this happen on residential property. Mr. Lee stated that is a huge concern of the board. Cell towers are coming to town. It would be nice to co-locate. Yes, they can go on residential property. We look at the whole town and know we have to be careful where they ultimately go. Mr. Rando asked if this goes beyond cell towers. What if someone wants to open an automotive shop in a residential area? Mr. Lee stated they can’t.
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Mr. Pare stated there is a Telecommunications Act of 1996. Sharon has two towers: one at the country club and one on Farnham Road. Both were difficult zoning prospects. Judy Levy stated they want the town to get money for the lease and they don’t want these on residential properties. Mr. Pare stated they are a provider like any other utility. Their point is to get coverage into the neighborhoods. Ms. Levy stated if there is a non-residential area that can be used, they would like that.
An abutter stated that Farnham Road and East Street are available immediately. Mr. Pagacik stated the applicant doesn’t want those areas. Mr. Pare stated they need access to a site along with power and telephone. Mr. Pagacik stated there is nothing planned or existing in those areas because they are too far away.
Laura Gallagher, 71 Mohawk Street asked why can’t you go up on top of an existing pole. Mr. Pagacik stated it depends on availability.
Joe Rando , 2 Colburn Drive asked if there can be a tower in the Amtrak right of way and Mr. Pagacik stated possibly. Mr. Lee stated that won’t gain them anything. It would get them out of a residential area, but it would be right next to it. Mr. Rando feels that would be a big advantage.
Kim Kokkotos , 19 Colburn Drive asked if they looked at any different co-locations. Mr. Pare stated there is no other tower which is the problem. Mr. Pagacik stated the biggest problem is the southern part of Sharon. Ms. Kokkotos stated she would like him to look into that. Mr. Lee stated he works for the town, not AT&T. Ms. Kokkotos stated there may be could be a compromise. She thought they could co-locate on one of the two existing towers. Mr. Pagacik stated he has looked into that and there is nothing in Foxboro near Sharon that will provide coverage.
Buzz Yankowski, Mohawk Street asked about Well #5. Mr. Lee asked where it is. Mr. Yankowski stated it is up behind Gavins Pond Road and is a good distance from any houses.
Rob Simons, 21 Mohawk Street questioned the gap in coverage. Mr. Pagacik stated he should look at the map showing the coverage in the Farnham Road area. Mr. Lee stated one of the things we are hearing is that completion of a new cell tower might give them the coverage they are looking for. We have three options with an application: approve with conditions, deny, or continue. Mr. Simons feels the applicant should go back to the town to help out the Zoning Board. That would show that we do want AT&T here, but we have serious concerns. Mr. Lee agreed and stated this is similar to the DPW site.
Dan Ray, Colburn Drive asked if AT&T has done an analysis of the people in this area that don’t have coverage. He thinks there are more Verizon customers in the area. Mr. Pare stated that is the point. Mr. Lee stated that AT&T has the right by law regardless of how many customers have coverage. That is not a zoning question. He stated he would like to continue this hearing. Mr. Pare stated he would like to make sure the board has everything they need. If they move to Well #6, there will be neighbors there also. Mr. Lee asked if Well #6 is in a residential neighborhood. We don’t want to pit one neighborhood against another. Mr. Pare stated they are concerned with getting through town meeting. If it fails, they will ask for a decision on this with no alternative available. He stated they would like to continue this hearing to the end of February or the beginning of March.
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Mr. Lee stated the members voting on this will be Mr. Ruskin, Mr. Okstein and Mr. Wernick. Mr. Lee continued this hearing to March 9, 2011. Mr. Lee stated we are waiting for a check to come from AT&T for the peer review. He has submitted Mr. Pagacik’s invoice for payment.
9:30 p.m. Michael Oshman, 38 Harold Street, Case No. 1667: Mr. Lee read the public hearing notice and also a letter from Greg Meister, Conservation Agent dated December 6, 2010 and Jim Andrews, Health Agent, dated December 7, 2010. Both have no concerns with this project. Mr. Lee read a letter from Mildred Hoffman, 39 Harold Street, in objection to this request.
Mr. Oshman stated he is proposing a 4.5 kw solar panel so they won’t need to use Nstar anymore. It will also reduce their electric consumption. They are striving to use cleaner energy. He professionally helps businesses be “green” and would like to set precedence in the Town of Sharon. It is a pole mount and they are here because the panels need to face south for the best exposure and to get rebates from the State and special tax credits. In order to get those, they need 80% exposure to the sun, which wouldn’t happen with a roof mount. They have signed a contract and have State rebates secured. Everything is set up and ready to go. It can’t be located anywhere else on their property. He has fifteen letters from community residents that are in favor of this. He feels this could be an attraction to the town and can increase property values. He also has signatures from his neighbors who are in support of this. Mr. Wernick asked how big the panels are and Mr. Oshman stated they are 10’ wide x 14’ long each. There are two of them. He stated this is not solar for hot water, just electricity. Mr. Lee asked if these would be affixed and Mr. Oshman stated yes, they won’t move. Regarding Ms. Hoffman’s letter, there will not be a cement mount. It meets all the building codes and is very safe.
Mr. Ruskin asked why this can’t go in the back yard. Mr. Oshman stated it is not possible from a shade perspective. Mr. Wernick stated they could go out back and aim south. Mr. Oshman stated they need an arc of sun and they don’t have that anywhere else on the lot.
Joyce Edwards, 40 Harold Street stated she is the next door neighbor and does not support this. Mr. Ruskin stated if they put up trees for screening, it will block the sun. Ms. Edwards stated it is her bedroom window that will be affected. Mr. Oshman stated that part of the fear is of the unknown. Ms. Edwards stated no, it is fear of the solar panels. It is a visual impact.
Mr. Okstein asked what Mr. Oshman would do if there was an addition built next door. Where would you move it to? Mr. Oshman stated it comes from above the roof line and from the front of his house where they wouldn’t add on. Mr. Wernick stated we have to protect the neighbors as well. Mr. Oshman stated if this is moved back or to the right, they won’t have solar. They will have to take down some trees to make this happen.
John ____, 14 Harold Street stated this is what needs to happen environmentally. This needs to move forward. He wants this to happen so Sharon will be a better place to raise kids.
Mr. Bogart, 3 Abbott Avenue stated the laws are in place so there is not an unreasonable burden on neighbors. It is unreasonable to stop this because the zoning bylaw does allow this. Mr. Lee stated it could be detrimental to the neighborhood. Mr. Bogart stated he is an engineer and would like to do this himself. Mr. Oshman stated there are twenty-two people that are in favor of this and only two against this.
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Michael Delman, 44 Harold Street stated he did meet with Michael Oshman and he did sign the letter, but after seeing pictures he agrees with Joyce Edwards. Ms. Edwards stated she got the photo at 5:00 today. Had the neighbors seen this, they may have had a different view of the proposed project. Mr. Lee stated these are not small collectors. In the right location, they may be okay.
Cecil ___, 67 Ashcroft stated that at some point there will be a switch. They do look ugly and they are big. She asked if this were going on Joyce’s house, would she still object and Ms. Edwards stated yes, it is not about her potential gain or the variance.
Ms. Oshman stated her husband has an in with the media and this will bring people to the neighborhood.
Leah Hoffman, 111 S. Main Street stated they are in the process of receiving panels as well and they do support more solar energy in Sharon. Saying it is detrimental is a stretch because the benefits outweigh the negative aspects. Mr.Oshman stated that the picture he submitted is not the same as what he is getting. Mr. Lee stated we heard the presentation. He stated Mr. Oshman can ask to continue or ask to close the hearing and the board will vote tonight.
Mr. Oshman stated this is the right thing to do. If this is denied, it will affect every house in Sharon that wants to have solar. Mr. Lee stated you are here because it is a non-conforming lot. Mr. Wernick stated every house is different. Mr. Oshman stated you are also saying that they will be incurring more electrical expenses. Mr. Ruskin stated he feels this is detrimental as it is too close to the neighbor. The panels are huge and he feels this violates the buffer. He is not against solar, this is just the wrong house. Mr. Okstein stated he is in favor of solar but doesn’t think it should be offensive to the neighbor. He feels this is detrimental to the neighbors in this neighborhood. Mr. Wernick agrees. Mr. Oshman stated you are saying we need more solar, but not in my backyard. Mr. Wernick stated we take one case at a time.
Mr. Lee stated it is up to you to close the hearing or consider if there is another location. Mr. Oshman stated these do not violate any zoning bylaws with regard to height. If they could have moved them back, they wouldn’t be here. The neighbors would still have an issue, but he would be within his rights. Mr. Lee stated he would still be before us because the house is on a non-conforming lot, but you wouldn’t have to be here because of the buffer. Mr. Wernick stated we vote each application based on its own merits. Mr. Oshman stated this is up to the board’s subjective opinion and the opinion of two people. Mr. Lee stated this is an adjudicating board. Mr. Oshman’s father asked if there were no objections, would the vote be different. Mr. Lee stated he can’t answer that because it is a hypothetical question, each case is on an individual basis. Mr. Oshman stated that two hours ago you said cell phones are coming. Mr. Lee stated that is addressed by Federal law.
Mr. Oshman stated he would like to continue and pursue his options. Mr. Okstein stated he may be right; it may be like a cell tower. Mr. Lee continued this hearing to January 26, 2011.
10:15 P.M. Nir Davidson, 192 Wolomolopoag Street, Case No 1666: Mr. Lee read the public hearing notice and a letter from Jim Andrews dated December 7, 2010 stating the septic system in place is in compliance with all state and local regulations and a letter from Greg Meister dated December 7, 2010 stating he has no objection to this application providing the applicant can provide evidence that verifies the location of the wetlands on the plot plan or by some other reasonable means.
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Mr. Davidson stated he has an existing deck and wants to build a workshop under the deck. He is not changing any of the landscape or pushing the dirt into the wetlands. Mr. Ruskin asked if he is just looking to enclose the deck. Mr. Davidson stated he is presently using his garage as a workshop and this is simply a home improvement project. Mr. Ruskin asked if there is access to this from the house. Mr. Davidson stated yes there is a door that goes under the deck. Mr. Ruskin asked about the foundation and Mr. Davidson stated he would be pouring a slab. Mr. Lee asked if he is taking down the deck and Mr. Davidson stated yes and will rebuild it. Mr. Wernick asked if there will be a flat roof under the deck and Mr. Davidson stated yes and they will lift the deck a little.
Mr. Okstein questioned Greg Meister’s concerns. Mr. Lee stated the wetlands are not delineated. Decks are allowed to be built closer to the wetlands than a house. He wants to enclose beneath the porch. Mr. Okstein stated you are saying you could have a deck but not necessarily a room. Mr. Lee agreed. Mr. Davidson stated that Mr. Meister went and marked what he found. Mr. Lee stated Mr. Meister is concerned. He feels that his question needs to be answered. Mr. Okstein stated he doesn’t have a problem with the project but thinks the question has to be resolved. Mr. Lee stated the wetlands need to be delineated. Mr. Wernick stated there can be no more bedrooms that what is presently there. Mr. Lee stated we need more clarification as this is not just building under a deck; it is an expansion. Mr. Wernick stated the new deck is a different shape from the old one. Mr. Davidson stated there use to be stairs. Mr. Lee stated the footprint is changing. Mr. Davidson stated it is not closer to the wetlands. Mr. Wernick stated we need more details. Mr. Lee stated the applicant needs to determine where the wetlands are.
Larry Trem stated he prepared the drawings and questions the wetlands being on a neighbor’s property. Mr. Lee suggested he contact the Conservation Agent as he access to every property in town. He stated we also want clearer plans. Mr. Wernick stated we need setbacks and dimensions. Mr. Lee stated you are right back at the buffer now, but you are not in the wetland. Mr. Trem stated that don’t want to increase the footprint any more than what is shown. Mr. Lee asked if the existing deck is being torn down and the footprint changing. Mr. Davidson stated yes. He stated that Joe Kent suggested they go all the way to the corner of the house, use the same footprint and square off the deck. He will be storing his tools and lumber there. He does carpentry and home improvement work and this will be his workshop. Mr. Lee stated the plan does show what we need to see and the dimensions are shown. The issue is the wetlands. He stated we need an updated plan that matches what Mr. Davidson is looking for. He continued this hearing to March 23, 2011.
10:45 P.M. Patricia Walker, 19 Henry Street, Case No. 1665: Mr. Lee read the public hearing notice. He read a letter dated December 6, 2010 from Greg Meister, Conservation Agent, stating he has no objection to this application. He read a letter dated December 7, 2010 from James Andrews, Health Agent, stating the septic system in place is in compliance with all state and local regulations. The applicant was represented by Bill Kiley, the builder. He stated they will be building a single car garage and it is not detrimental to the neighborhood. The garage will be 17x24 and will not encroach on the side yard and will have only a single door. Mr. Lee stated they are asking for a special permit because it is an undersized lot. He stated that a condition if approved could be the garage will not go into the 20’ side yard buffer.
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Mr. Kiley stated his company has been building garages for over forty years and they do the best they can to conform to the zoning bylaws. This application is cut and dry. This is a modular unit and he is a licensed builder. They will bring the garage to the site and it will go up in three days on a 4’ foundation with a mesh in the floor.
There were no abutters present. Mr. Kiley asked to close the hearing.
Mr. Wernick moved to approve a 17x24 single car garage at 19 Henry Street as per a plan dated June 23, 2010. Motion seconded by Mr. Okstein and voted 3-0-0 with the following condition: The proposed 17’x24’ garage expansion to a non-conforming structure shall not encroach into the 20’ side yard buffer.
It was moved, seconded and voted to adjourn. The meeting adjourned at 11:00 p.m.
Respectfully submitted,
Approved 5/11/11