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HomeMy WebLinkAbout2015-08-25 Zoning Board of Appeals Minutes � � � 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�� ^ � Allan Cumcia Alexandria A. Jacobs Esq. � Dougj[adrin Zoning Enforcement Officer � Too 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 � � 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 � | / � Toivn ofNorth Andover ZONING/Y(7A/d}(}F A y/!EA IS � 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 � � Toij,n ofNorth/4nuhvor � � ZONING B{A/UJ0yAPP/A LS � 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 � � � Toivn ofNorth Andover ZONING BOARD LlF APPEALS � 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� � � 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. , " �_,� ,l{ 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 " 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