HomeMy WebLinkAbout2015-08-25 Zoning Board of Appeals Minutes �
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Town ofNorth Andover
ZONING BOARD(lF APPEALS �
Albert A Manzi III,Esq. Chairman Associate Member �
Ellen P.McIntyre, Vice-Chairman 1,76 0 Denuy Morganthal
D. Pam/Koch Jr.E� �m�um� ��xr��
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Allan Cumcia Alexandria A. Jacobs Esq. �
Dougj[adrin
Zoning Enforcement Officer �
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US Germ6/A. Bxwwm
MINUTES
Tuesday,August%5,%015ut7:30 PM
Town Hall 120 Main Street,North Andover,Massachusetts
Members present: Albert P.Manzi,Allan Cuscia,Doug Ludgin and D.Paul Koch Jr
/kmmwoiute Member: Nathan Woimnmtnh and Alexandria A.Jacobs
Also im attendance: Tom NrbmUis,Town Counsel
Excused absence: Ellen McIntyre and]N*mey Mongumthul
Pledge of Allelliane
Manzi called the Special Meeting to order ut7:38
Continued Public Hearinjj
Ukegmeot for a Findings from the Board appealing a Use Determination made by The Inspector mfBuildings
relating to an OSGOD Permit Application for Solar Photovoltaic System in the 1-2 Zoning District at 1600
Osgood Street(Map 34 Parcel 17)
Petition 2015-003.
Manzi stated that this is a special meeting that was continued from June.Manzi stated that the Meeting was called
by him. Manzi then stated that we have two new Associate Members that were not at the last meeting,but have
read all the materials,associated with this hearing and have signed the appropriate form and they are now eligible
tn vote oothis.
Koch had concerns i[these new members would be eligible tovote, since they were not members of the ZB/\ ut �
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the firstmeeting. Torn Drbelio responded that as long as they have read the materials and have certified this fact
oo the appropriate fbnu they are eligible tovote. �
Manzi stated since vru only need ] more Board Member for the vote,vve will pick based ou seniority,Nathan
Weinreich will be the one to vote on this hearing tonight, but Jacobs will be allowed to ask questions to the
applicant.
The Board was brought up to speed on what took place at the last meeting in June.
Manzi spoke o[the various materials that were submitted tothe Board Members and applicant such as legal
definitions from Black Law, and various MGL documents such as Chapter 25A Section 3, Section 10,
Cbuytor40/\ Section 3, Section 9` Chapter 164 Section l and also Chapter 184 Section 23C.
Attorney Rosen walked up to the podium and stated that we will keep this short and then take questions. Rosen
spoke of the 1600 Osgood Street property and of the 3 legal parcels of land on that location of a 167 Acres(or 1.4
million square teuA. Rosen spoke of the various tenants and of the 2007 Town Approved Overlay District,called
the O86Ol)District. Rosen stated with the Overlay District there are three zones;Business Opportunity Zone,
Residential Zone and Mixed Zone. Under O8GODyou are allowed to do things slightly different.
Page lof6 August 25, 2Al5
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Toivn ofNorth Andover
ZONING/Y(7A/d}(}F A y/!EA IS
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Albert A Manzi III,Esq. Chairman OORYN Associate Member
McIntyre,�?&n�� McIntyre, Vice-ChairmVice-Chairman Dknney Morganthal
D. Paul 1(ouA Jr.Esq. Nathan JWeinreich
AllanKusc/e A&xan(lria A, Jacobs Esq.
DougLudgix Zoui"g Dnyo,oemxutOt§cm,
ACMUS Gerahl A. Bronm
Rosen spoke ofOSGOZ)aouu overlay district superimposing ouuUuudedyiu&zoningdiabicto. Whhiothu
boundaries of OSGOD, a developer may elect to either develop a"site"in accordance with the requirements of
Section 17 or to develop a site in accordance with the requirements of the regulations for Use dimension and all
other provisions of the Zoning Bylaw governing the underlying zoning district. lu this instance hioin the l-2
District.
Rosen referenced the letter from The Inspector of Buildings, dated March 24, 2015.
Rosen stated that on June 17"',201.4 this site(Map 17 Parcel 17) received approval of a Special Permit tinder the
OSGOD. This was for ACT, a Community Theater. Rosen stated they would argue that was incorrectly
determined.
Rosen stated that it was incorrectly determined in the OSGOD Letter from the Building Inspector that the project
is not uu allowed"As of Right"use tinder Section |7.0.2.2nf the Zoning l}ylaws. Also h was without
explanation that this project vvuuootal)onediudhel-2T}iabictunderdbe Zoning Bylaw.
Rosen spoke of^^8itu"and stated that nowhere in the Bylaw io''Sikr"dofiucd.Manzi agreed Site ia not defiuodiu
the Bylaw. Manzi reminded the Board and applicant that he submitted the legal definition of"site"to the Board.
Cuscia asked how many tax bills are sent; Rosen responded he believes there are 3, one for each site.
Manzi read Section 17.3.2 of the Bylaws"Underlying Zoning"The OSGO[)is an overlay district superimposed
oil all underlying Zoning Districts.As required by the Enabling Laws,the regulations of use dimensions and all
other provisions of the Zoning Bylaw governing the underlying zoning district(s)shall remain in full force, except
for those sites undergoing development purstiant to this Section 17. Within the boundaries of the OSGOD, a
developer may elect to either develop a site in accordance with the requirements of Section 17 or to develop a site
in accordance with the requirements of the regulations for use, dimension and all other provisions of the Zoning
Bylaw governing the underlying zoning district.
Manzi stated it was not defined on purpose and that the intent of this bylaw was to promote growth and
development and not toberestrictive.
C000iu asked why this io not at planning,Manziatatcduode,Cbupior4O/\ Seciiou7, upp|icant are allowed to
appeal Decision and come to the ZBA,then they can go to Planning(depending on how the vote goes).
Cuscia stated that basically the applicant does not agree with the Building Inspectors letters.
Cuuuiu asked of the existing solar panels today, and if this project,(ifuppn/vod)vviUuddmddhiono| oo|urpunc|sto
the roof. Rosen stated yes and vve will also have solar car ports as well as additional solar roof panels throughout
the property.
Cuscia asked if the Solar Panels that exist now subsidize some of the electric bill,Dan Leary,Project Muouger{or
this project stated yes.
Rosen spoke of Net Meter Agreement(under state law) or how the electricity ounbocouxnzucdoudbcproyedyor
a bidirectional meter that goes back into the(kid, You cannot sell h.
Page 2of6 August 25, Z0l5
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Toij,n ofNorth/4nuhvor �
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ZONING B{A/UJ0yAPP/A LS
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Albert P.Manzi III,Esq. Chairman Associate Member �
Ellen P.MuIntj�r4Vice-Chairman 0 DuaeyMoraun/hw/ �
D. Pam/ICoch Jr. Esq. Nathan Weinroioh
AllanKuscbx Alexandria A. Jacobs Esq.
Doug L udgin
Zoning Enforcement Officer
clws GerahfA. Bromm
Leary and Rosen answered questions and spoke to the Board of the tax benefits,Net meter and credit agreements,
net present values, economic incentives, debit and credit agreements, and also spoke of various pilots being set up
and how the town could benefit.
Leary wanted to make it clear that they have not negotiated with the Town as of yet.
Cnaoia asked if this was similar b`CapuWindin Cape Cod, Rosen stated no.
Rosen stated that it is his belief that they plan on installing these panels in either the 1-2 or the OSGOD District.
Cnxciu asked questions regarding the terms and definitions ofManufacturing and Generating io regards tuthis
project. Rosen stated that you would need to go to a Legal Dictionary
Rosen stated Section 4.\]3 (11 b)Renewable or alternative energy research and development facilities, renewable
or alternative energy manufacturing such ux^^uolm�".
Rosen stated in Massachusetts Law Chapter 164, Section 1, "Manufacturing and Sale of Gas and Electricity"
under"Generation Facility"a plant or equipment used to produce,manufacture or otherwise generate electricity.
Manzi spoke of Massachusetts General Law Chapter 40A Section 3 and 17.6.4 with respect to Special Permits and
how h relates to Solar and this project. Manzivventcd0ombdotothe8ourdtbottbo/\ttucncyGnnera\ cau1iooa
Towns with these prohibitions. The state is very involved with promoting gruvvd/and duvuloynoco1.
Rosen spoke of the permits that were issued on this property(OSGOD, and 1-2).
Manzi stated that this iau complicated fi|e.Manzi stated that dio sometimes unfair for the Building Inspector to
interpret all the laws with everything else that they have going on.
Rosen stated how this new generation coming up in more environmentally conscientious. This generation wants
these things. Also vvu make money for the town and for ourselves.
Manzi stated that tonight our Board ia only asked\o make Findings.
Cuscia stated he does not want to tell a taxpayer what to do with their property especially if this is an allowed use.
Urbelis, stated if the Board makes a decision to overturn or reverse the Building Inspectors decision,then the
applicant can 8o10 the Planning Board.
Rosen stated that based on the Building Inspectors letter,they cannot go forward.Rosen went over the letter and
explained to the Board why bc disagreed with it.
Rosen spoke of some of the findings that they were looking for tonight.
Rosen stated that they applied under Section 17.6.3.2 As-of-Right Uses upon Plan Approval by the Plan Approval
Authority within the Business Opportunity Zone Located within Osgood Smart Overlay Zoning District.
Page 3of6 August 25, 20l5
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Toivn ofNorth Andover
ZONING BOARD LlF APPEALS
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Albert P.Manzi III,EsaCbuirouuu Associate Member �
Ellen AMcIntyre, Vice-Chairman 0 Deney Morganthal �
D.Paul 1(o/h Jr. Esq. 0 to Nathan J. Weinreich
Allan Cusuia Alexandria A. Jaco&vEmg.
Dnuylm6g/m 41 Zoning Enforcement Officer
K�rm�f��, X��ono� �
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Rosen stated that"ooan "inc|ndoaornup/ubleoru|tecuo1iveoucr&ynuuuuhsotodogoucbouuuloz
generating facilities uaouAa-of-pJuhtUse.
Rosen also stated that under Section 4.l33 (|lb)in the T-2 Zoning District and section i7.6.3.2that
"manufacturing as it relates to solar energy facilities is not limited in any way to preclude the transmission of all or
any portion ofthe energy being geooratodbor use of the Property.
Koch stated that he has spent much time on this, and that he sees the arguments frorn the applicant,but has not
been persuaded bvthem. Koch went on to say that he has not found clarity. Koch stated that he does not buy into
the benefits that have been stated tonight. He also stated that the case that was submitted by the applicant was not
as applicable as it should be. Koch stated that he struggles with the Development Merits aodtbeI.ugul2Nerkyof
this project.
Koch obdoe that he ouuoot see ho*' 15,000 Solar Panels could h,knc|dt into this building and bring tenants to this
property.
Urbelis suggested and cautioned the Zoning Board to concern themselves with what the Attorney General said and
the prohibiting mfSolar.
Manzi agreed with Urbe1ia.
Koch stated that he has reviewed the materials to find a clear path;we have been in and out of laws and
interpretations tonight. Koch disagreed with some of the arguments from Rosen.
Koch spoke ofl7.6.].2of the Bylaw and stated hon'unyoue000ldaeeiutbe[utuno that the word"manufacturing
"would turn into a Solar Farm ofaround l5,000 solar panels. Koch stated that bo was sure that no one would even
consider this was uu anyone's minds.
Manzi stated that v/n need to focus on the laws and have the Planning Board do their job and let the Planning
process take its course.
Manzi wanted to suggest closing the public hearing, but before he did he asked the Board if they had any further
questions to ask, orif the applicant had anything tuadd.
Rosen stated he wanted to comment on two things that trouble him.First one is that under 40A Section 3 the entire
parcel is not OSGOD that cannot hopossible, and the second thing la that Solar io allowed ioI'2under 4.133
(|lb)o,under 4UA Section 3
Manzi asked the Zoning Assistant to make two corrections on the document list that was submitted.
Lud&io made a motion 10 close the hearing
Couoiu second the motion to close the hearing
All iu favor toolouu8�un�iT.od Cumoi000haod\�eiureiob.
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The Board deliberated uowhat they heard tonight.
Page 4of6 August 25, 20l5
Toim of North Andover
ZONING BOARD OF APPEALS
Athert P.Manzi III,Esq. Chairman AORTH Associate Member
Ellen A McIntyre,Vice-Chairman Deney Morganthal
D. Paul Koch Jr. Esq.
Nathan J Weinreich
Allan Cuscia Alexandria A. Jacohs Esq.
Doug Ludgin °,gyp 1*111.4A Zoning Enforcement Officer
"r90 Gerald A. Brown
Ludgin stated in his experience a site can consist of several parcels and can be broken into 15 different buildings
sites. Ludgin can see how multiple sites can exist here.
Manzi agreed with Ludgin.
Manzi stated that he believes that the Planning Board and Building department can do their jobs effectively.
This area is called Smart Growth and created 3 different zoning districts with different purposes
Manzi stated that he is persuaded that this is a By-Right Use.Manzi stated it is not listed that it is a By Right Use,
because it does not have to be.
Weinreich had no comment.
Jacobs had no comment
Koch stated that the applicant triggered OSGOD (intentional or not), but if it was 1-2 that would be standing tall.
Manzi stated this is a very complicated Bylaw.
Manzi stated that under 1-2 it is allowed, by Special Permit it cannot be prohibited,because it is exempt. All we
are deliberating on is Use.
Cuscia agreed with Manzi let the Planners do their jobs.
1. Section 17.3.2-Underlying Zoning as to the Property,that: the term "site" (a term that is undefined by
the Zoning Bylaw)is not defined to mean "Lot"(a term that is defined by the Zoning Bylaw),and further
that the OSGOD Section of Zoning Bylaw contemplates multiple"Projects"on a Lot.
2. Section 17.6.3.2 As-of-Right Uses upon Plan Approval by the Plan Approval Authority within the
Business Opportunity Zone located within Osgood Smart Growth Overlay Zoning District,that: the
Building Commissioner erred in applying Section 17.6.1.2 and further,that"manufacturing"includes
renewable or alternative energy manufacturing such as solar generating facilities as an As-of-Right use.
3. Section 17.6.3.3 Uses Allowed by Special Permit within the Business Opportunity Zone located within the
Osgood Smart Growth Overlay Zoning District by Plan Approval Special Permit issued by the Plan
Approval Authority as Special Permit Granting Authority,that: the Building Inspector erred in his
determination that that the Solar Photovoltaic System consisted of an application for Special Permit when
in fact it was an application for OSGOD Plan Approval by pursuant to section 17.6.3.2 as an As- of-Right
Use.
4. Section 17.6.4 Prohibited Uses with respect to the Business Opportunity Zone located within Osgood
Smart Growth Overlay Zoning District that: the Building Inspector erred in his determination that solar
energy generating facilities are not expressly allowed and therefore a Prohibited Use;
5. Section 4.133 (11b)in the Industrial 2 Zoning District and Section 17.6.3.2. -that: "manufacturing" as it
relates to solar energy generating facilities is not limited in any way to preclude the transmission of all or
any portion of the energy being generated for use off of the Property.
Page 5 of 6 August 25, 2015
Town of North Andover
ZONING BOARD OF APPEALS
Albert P.Manzi III,Esq. Chairman %AORTH Associate Member
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Ellen P. McIntyre, Vice-Chairman ,,no .4, Deney Morgalithal
D. Paul Loch Jr. Esq. to
Nathan J. Weinreich
Allan Citscia Alexandria A. Jacobs Esq.
Doug Ludgin Zoning Enforcement Officer
ATIO dA. Brown US Gei-al
Ludgin made a motion based on the ZBA Decision on Findings I through 5 any and all conditions and moved to
approve.
Cuscia Second the motion
Voting in favor Cuscia,Ludgin, Manzi and Weinreich
Not in favor Koch
4-1 findings Granted
Manzi declared it granted
Adjournment: 9:30
Cuscia made a motion to adjourn the meeting.
Weinreich second the motion
All were in favor to adjourn the meeting: Manzi, Koch, Cuscia, Ludgin, Jacobs and Weinreich.
Page 6 of 6 August 25, 2015