HomeMy WebLinkAboutPlanning Board Meeting Minutes 02.02.10
PLANNING BOARD
Minutes of the Meeting
Tuesday, February 2, 2010
Town Hall, 120 Main Street
Top floor conference room
7:00 PM
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Members present: John Simons, Chairman
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Richard Rowan, regular member
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Timothy Seibert, regular member
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Michael Walsh, regular member
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Courtney LaVolpicelo, regular member
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Michael Colantoni, alternate member
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Staff present: Judy Tymon, Town Planner
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Mary Ippolito, Recording Secretary
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Chair called the meeting to order at approximately 715 pm.
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Chair called for WITHDRAW WITHOUT PREJUDICE:
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PUBLIC HEARING:
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Muffin Realty Trust, 351 Willow Street, Special Permit for a reduction in parking as a
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result of converting 11,000 s.f. of warehouse to 11,000 s.f. of manufacturing within the I-
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1 zoning district.
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Robert M. Ogan, representing Bake’n Joy & Muffin Realty Trust is present to explain the
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reason to withdraw their application. Mr. Ogan decided to look at different alternatives
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for future parking, and he will be back to look for a variance for parking. Has space in
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front of the building to extend parking 16 spaces. John Morin, Engineer, Neve Moran
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Group, is preparing to move forward with the issue. Judy is working w/Mr. Ogan
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regarding any issues relative to procedures for filing a new application.
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Motion by RR to accept the withdrawal without prejudice, 2 by MW, vote was
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unanimous.
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Chair called for DISCUSSION: Telecommunication fines.
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Attorney Urbelis was present: As a general proposition, Zoning Bylaw fines are enforced
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and collected by an application for a criminal complaint in the District Court by way of
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indictment in Superior Court; and 2 if a particular bylaw has provisions for non-
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criminal dispositions and there are areas scattered thru the Town’s general Bylaws, but
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not in the general bylaw regarding wireless communications, so you can pursue a non-
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criminal disposition action under Chapter 40 Section 21. Any action to try to enforce
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fines means it would have to be an application for criminal complaint in District Court.
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Regarding telecommunications facilities, he’s not personally aware of any place that
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issued fines against the carrier which may challenge under the Telecommunications Act.
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Doesn’t know of any cases where that has been upheld. Look at the factual circumstances
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first. Attorney Urbelis and Judy are working on a re-write and he’s recommending taking
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out the fines completely. He’ll submit a list of other communities that don’t have fines in
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their bylaw.
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MW: what if SP lapses? What is the alternative to have a party comply or reapply to
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come into compliance w/bylaw? Atty. Urbelis: file an application for a criminal
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complaint. Atty. Urbelis: doesn’t know of any community having done this under the
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Telecommunications Act.
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RR: if PB requires reports due on certain times, maybe fines, if they reapply within 3
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years they can reapply/renew their SP on the same basis that it was approved originally.
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In lieu of fines would it be enforceable when 3 years are up? Do they have to re-apply
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for a totally new application? Atty. Urbelis: doesn’t know if they rewrite the bylaw if it
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will present this kind of information. When re-application is filed is that technical report
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current at the time of reapplication, even though it may not have been submitted for 2 or
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3 years in a row? Atty: Urbelis: many engineers would say that nothing has changed.
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RR: do most towns require reapplication after a certain time is up? Atty. Urbelis: no, it’s
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mixed, he couldn’t say.
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TS:Board of Health situation, fine involved, do they have to go thru criminal complaint
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action? Atty. Urbelis: no, they have a provision in the umbrella which has non-criminal
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disposition, issued a ticket, if they don’t pay the assessment they can appeal thru District
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Court, but wireless bylaw doesn’t have that.
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TS: has ZBA ever levied a fine? Chair: doesn’t remember any being done. Atty. Urbelis:
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we’ve sued them with a Court order. If they are violating the bylaw it’s typically based
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on use.
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Atty. Urbelis: Town sued people for injunctions for a Court order to do other things,
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that’s another weapon the Town has and it’s not uncommon, but it’s definitely an avenue
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to get an injunction if someone is violating either the Bylaw or a use.
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RR: the two houses located at the corner of Mass Avenue by the common - the Building
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Inspector stopped them because they were violating the Bylaw. Atty. Urbelis: Building
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Inspector can issue a cease and desist order but those go to the ZBA not to the PB.
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Chair called for DISCUSSION: BOND RELEASE:
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Salvatore & Marie Vaudo –
requesting a $2K bond release/close out for 38 Saile Way,
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a street located in Great Pond Estates subdivision.
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Judy did a site visit. Applicant submitted an as-built, everything looks fine. Motion by
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MW to release and close out the $2K bond, 2 by TS, vote was unanimous.
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Chair called for DISCUSSION: Recent judgments.
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Atty. Urbelis: gave an update on two Court cases that he represented regarding 70 Elm
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Street. PB approved 6 antennas inside existing church steeple w/SP. Wireless isn’t
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visible from the outside of the church. MetroPCS provided engineering reports that the
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radio frequency emissions complied with FCC radio frequency requirements. PB hired
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their own engineer who confirmed that the radio frequency complied w/FCC
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requirements. There were no engineering reports submitted to this Board by anyone that
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the two reports contradicted each other. The PB issued a SP and noted that the Federal
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Telecommunications Act of 1996 prohibited the PB from taking health effects into
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account beyond the requirements of the FCC. Five residents filed a law suit in Essex
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Superior Court challenging this Board’s issuance of a SP. After review of the documents
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the Superior Court decided that a trial was not necessary and entered summary judgment
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dismissing the plaintiff’s lawsuit and upheld the decision of the PB.
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In the lawsuit the only basis for the residents challenge was their claim that a zoning
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variance from the ZBA was necessary because they alleged that the zoning bylaw a 600
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foot setback from property lines was required and that no such variance was obtained. In
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newspaper articles and at meetings of the Board about alleged health effects due to this
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facility, however, the Court specifically noted that residents did not argue to the Court
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that the Board acted improperly on the basis of health concerns from RF emissions. The
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plaintiffs did not argue to the Court that alleged health effects of this wireless facility
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were reasons for reversing the PB decision. The Court specifically found that even if the
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wireless carrier applied to the ZBA for a variance from the 600 foot setback the Court
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stated “a variance could not be denied in the circumstances of this case”:. Court pointed
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out that under the Telecommunications Act of 1996 that a local government could not
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take actions that prohibit or have the effect of prohibiting the provisions of personal
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wireless services and that under the Federal law local governments may not limit the
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placement of wireless facilities on the basis of environmental effects of RF emissions.
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Court specifically stated that “the PB could not take health effects of RF emissions into
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account to require a 600 foot setback”. In its concluding statement the Court stated
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“therefore aside from whether the Building Inspector interpreted the Zoning Bylaw
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correctly it is clear under the undisputed facts that of this case and the governing law that
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the Fed. Tel. Com. Act of 1996 compelled the North Andover Planning Board to grant a
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SP”. Since the Court decided that not withstanding the 600 foot setback provision in the
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Bylaw the Fed. Tel. Com. Act of 1996 trumped that 600 foot setback provision and
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compelled this Board to make the decision which it made. After the SP was approved by
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this Board the Building Commissioner issued a building permit to allow installation of a
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wireless facility and the facility thereafter was installed. In the meantime, one resident
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who was also a plaintiff in a case against the PB appealed the issuance of a building
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permit to the ZBA which has the authority to overturn the Building Commissioner’s
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decision. After several hearings the ZBA upheld the Building Commissioner’s decision
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to issue the building permit. The resident claimed that the ZBA process took too long
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and that the Board’s decision was not perfected in a timely manner under applicable law
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and that as a result the appeal to the ZBA was approved. A law suit was filed in Land
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Court to determine the issue of whether there was a constructive approval of the request
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to overturn the Building Commissioner’s decision. The Land Court reviewed the
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document and applicable law and determined that there was no need for an extensive trial
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and decided against the resident and determined that there was no constructive approval
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of the appeal to the ZBA so the decision of the ZBA upholding the issuance of the
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Building Permit by the Building Commissioner was not reversed. Both of these cases
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have been appealed by the plaintiff to the Mass Court of Appeals.
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RR: what’s the status of the installation? Atty. Urbelis, it’s installed and operating.
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Atty. Urbelis: look at page 5 the very last paragraph of the discussion just before the
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order it’s that paragraph therefore…..MW: aside from the Building Commissioner
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interpreting the Bylaw are they hanging their appeal on that?…Atty. Urbelis didn’t want
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to speculate on that. MW: the Court decision is pretty clear.
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Chair: were you surprised how quickly it was resolved? MW: summary judgment
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hearing was done in October 2009. Atty. Urbelis: sometimes it takes a year; this is the
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first time that a Court has said that 600 foot setback is trumped by Federal Law. Until its
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reversed Atty. Urbelis suggests PB follow the logic of that decision unless an Applet
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Court reverses it. Atty. Urbelis: maybe tell the carrier where they can go instead of where
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they want to go.
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Chair called for DISCUSSION:
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Judy talked about increasing Planning Department fees: Planning Department fees have
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been the same since 2004.
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See first column, example subdivision per lot: Newburyport fees done in 2007 they have
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higher fees then us.
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$1K base fee plus $175 per lot for a subdivision.
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One fee for SP in Newburyport.
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Andover SP $600.00 plus 16 cents per s.f.
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We have flat $100.00 SP fees.
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We need special filing cabinets for the wireless information, and we keep buying them,
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recommends separate fee for wireless application. Staff costs are approximately $4K in
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dealing with cell tower applications. Process to approve fees is to go to the BOS.
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ZBA gets $7500.00 based on number of units for a 40B application.
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Chair: we have a few SP that boarders on minimums. We would probably waive stuff
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due to a proposed deck outside of 400 feet; this could create a hardship for some people.
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Judy: do minimum fee based on square footage.
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Chair: any feed back on increasing fees? Judy: discussed this w/Curt, agrees we need to
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change the fees because we haven’t had a change in a long time. Judy: hasn’t talked to
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developers about this. RR: category called minor, charge a nominal fee for a SP.
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RR: on definitive subdivision, go to higher base fee rather than smaller incremental base
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fee.
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Judy: salaries have not increased in a few years. Level budget now. Judy: has to do legal
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noticing for Town Meetings, Tribune has increased their costs for these legal notices. If
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we change regulations, there is another ad (public notice) we have to do.
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MW: Law requires fees be reasonable related to the services rendered.
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Judy: PB should look at these fees and discuss this at the next meeting.
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TS: we have to be competitive with Towns next door, developer’s look at fees charged as
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to whether they may want to go to our Town.
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Courtney: increased fees? - this would turn off residents.
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TS: consider spectrum of applicants that will get hit with these fees and do a check, PB
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doesn’t want to get into that kind of situation.
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Chair called for DISCUSSION:
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Proposed zoning changes for Annual Town Meeting
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Judy: Gerry Brown, Building Inspector, wants clarification for the following: definition
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what is area of a sign? Expansion, distinguishing between free standing as opposed to
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sign on building. (new section, no definition). Judy read sign bylaw section 6.
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Earth Removal: under section 51 it states: removal stripping earth is prohibited, unless
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there is another section 54 where there is a permit for earth removal. We should refer
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them back to the section in the Bylaw.
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RR: if a person sticks a shovel in the ground is he violating the bylaw? Chair: any
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reasonable person reading the bylaw knows what it refers to. RR: tidy this up to allow
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reasonable activities. Chair: unless you move more than a certain amount you don’t
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have to worry about it.
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Projections into front, side, rear yards. Gerry has worked in communities in Newton,
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Brookline, where there are allowances for this. Chimneys, flues, balconies, open fire
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escapes. Courtney: it would allow an overhang that goes over the setback?
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Judy: measure setback from foundation rather than minor projections. Judy: read there
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are additional projections, eves and uncovered steps. Gerry is adding open fire escapes,
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chimneys, and flues, uncovered porch.
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MW: left the meeting at 8:15 pm.
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Chair: we need to be crisp at this, this could end up a nightmare and we have to be careful
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on this. Gerry wants to talk to ZBA. Chair: ask Gerry to present pictures and examples
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and come in front of PB.
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Chair: looks like an error under 31, or 71, look at yard setbacks.
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Judy: front, rear, side yard in our Bylaw under definitions.
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RR: if foundation is compliant if some pertinence stick out beyond foundation but don’t
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impact the soil. Chair: agrees but that’s different from a deck.
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MC: get rid of porch and balcony. Chair: that one needs more work.
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Judy: pre-existing non-conforming structures etc. Gerry is saying apply that to pre-
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existing non-conforming two-family. Judy: because there are pre-exiting non-
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conforming two-families they currently have to go to ZBA. RR: take out single-family
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and change section of 9.1. Chair: ZBA changed rules so two- families were allowed by
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SP. Chair: A lot of work was done a few years ago regarding two-families; this is not
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meant to make any changes to that of a few years ago.
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Chair called for future zoning changes
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Chair: update PB on Rte #114 CDD1 & CDD2. Spend the next year working on doing
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real planning. Talk about how we do that.
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Judy: has contacted a lot of land owners and had discussions with them. Met w/Al
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McGregor, did a walk around and met w/Patrick Larkin, property next to Al McGregor’s,
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but had wetland issues. Met w/Scott Hajjar and walked the site there. This week met
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w/Lenny Annaloro and Michael Holbrook they own two properties next to Scott Hajjar.
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Go back and talk to Al McGregor again. Chair asked Judy to get as much of the wetland
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delineation on the properties because developers have issues because of wetlands. Chair:
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asked Judy to see where wetlands are and how big is the building footprint? Because
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wetlands come up to the front of the street they are not even 50 feet away. Judy: had a
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good meeting w/Mr. Allaloro and Mr. Holbrook, they brought up issue of mixed-use with
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residential which is an allowed use within that CDD - they are happy about this
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possibility. They need to do a wetland delineation of their property.
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Judy: regarding paper streets, she has a 10 page document and it depends how they are
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deeded in what particular Court in MA they own to the center line of a paper street
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abutting property. There are issues of owners who are further up on the paper street. In
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Al McGregor’s property the paper street is wet and lots of wetland along frontage along
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Rte #114.
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TS: expand down-town, trying to connect to corner to mill up past Sutton Pond condos,
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anything they can do to try to expand the footprint of down town.
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Judy: visited with a team of civil engineers from Northeastern University who has taken
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our potential bike path as a project to come up with a preliminary design. Professor has
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the class look at project and area carte blanche. Talked about getting onto Walker Road,
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over pass, high school, and getting students from there to down town.
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Chair: Rolling Ridge had Harvard University people come in and helped with their
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resources. Chair: Judy to look back at old reports done since the 70’s summarize them.
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RR: tie Rte. #495 into back of airport to have another exit, so when heading N on #495
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you can get access to the business.
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Courtney: Butcher Boy location seems to be under utilized there is potential for activity
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in that area, between China Blossom up to Bei-Ging restaurant.
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Chair: behind Joe Fish there is a huge manufacturing plant there. Where Forgetta Farm is
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that’s sitting open for a long time, but nothing has happened to that general project.
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Including airport, Holt Rd. including Osgood Landing if any economic improvement it
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will have to be there.
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RR: Edgewood has done a great job. Judy: would be happy to give PB a tour.
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MC: on Foster Street there are power lines going in there and lots of trees are being cut.
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Chair; by thinning trees out on Chestnut Street it may improve the environment for future
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trees.
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MC: likes the idea of the bike path.
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Chair: wants to work closer with High Street people; economic development process at
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Ozzy Properties - we should focus on those two things. Ask Curt to come in front of PB
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to promote economic development and brain storm ideas.
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RR: what is going on with Boston Road? Brook Street is underwater? Any plans to re-
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open it? Talk to Ben Farnum.
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Judy: we have 3 renewal applications for 3 Special Permits from T. Mobile: (1) Johnson
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Street tower; (2) 723 Osgood Street monopole; (3) Mass Avenue Church steeple (they
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will be on our March agenda).
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Chair called for CONTINUED PUBLIC HEARING:
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Elm Development Services, 1275 Turnpike Street, Site Plan Special Permit and
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Continuing Care Retirement Center Special Permit to construct a 125-unit apartment
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CCRC within the V-R zoning district.
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Paul Marchionda of Marchionda and Associates was present: stated he had issues with
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wetlands and Con/Com. He used delineation wetland line; about a year a half ago they
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demolished the existing ski building, they didn’t backfill the area, they met with
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Con/Com, has listed some alternatives. Move proposed CCRC building further up the
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hill, same layout as last time; however, there are green areas where wetland went into
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parking area. Con/Com agreed to keep the CCRC building where it is proposed to be.
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Mr. Marchionda is close to getting all VHB and Lisa Egglestom issue resolved. This
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meeting is for discussion purposes only tonight.
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Chair: Proposed drive way came out it cut into the hill…why couldn’t it be moved down
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a little bit? Mr. Marchionda: building is shaped to work with contours of the hill. They
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didn’t want to fight the grade. Moving the driveway the way Chair wants its off-setting
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the intersection of Rte. #125 or 150 feet offset. Dermott Kelly, Traffic Engineer, is
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concerned about traffic, therefore, don’t move the driveway.
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Mr. Marchionda: will come back in March for the first hearing, he needs time to get his
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information to Lisa Egglestom and VHB. Dermott Kelly sent his comments on traffic
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report this week.
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Chair called for Approve December 15, 2009 Minutes of the Meeting.
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Motion by Courtney to approve the December 15 Minutes, 2 by TS, vote was
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unanimous.
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Motion by RR to adjourn tonight’s meeting, 2 by TS, vote was unanimous. Meeting
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adjourned at approximately at 9:10 pm.
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By order of the Planning Board
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___________________________
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Approved
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Please note: The Planning Board reserves the right to take items out of order and to
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discuss/or vote on items that are not listed on the agenda.
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