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Planning Board -- Meeting Minutes -- September 13, 2012

A duly posted joint meeting of the Shelburne Planning Board and Zoning Board of Appeals was held in the Memorial Hall meeting room on Thursday, September 13, 2012.

Present: Matt Marchese, Chair, Planning Board
Joe Palmeri, Chair, Zoning Board of Appeals
John Wheeler, Planning Board
Doug Finn, Planning Board
John Taylor, Zoning Board of Appeals
Ted Merrill, Zoning Board of Appeals
Lowell LaPorte, Zoning Board of Appeals
Beth Simmonds, Planning Board, arrived at 7:30pm
Liz Kidder, Administrative Assistant
Audience: Judy Truesdell, Mike Perry, Eugene Butler, Karen Gould
Press: none present

Meeting was called to order at

Matt welcomed everyone, noted that Beth was going to be late. Matt hopes this is the start of a process of the two boards working together and meeting every few months in an effort to work together on the Shelburne Zoning Bylaws. It was noted that the meeting is being recorded for administrative purposes for the minutes.

Both boards have compiled a list of possible zoning bylaw updates for discussion. Matt said that the Planning Board is looking forward to hearing suggestions from the ZBA based upon their experience in implementing the zoning bylaw and special permit process. Joe noted that he had met with Matt to discuss small problems he would like to have ironed out in the bylaws. The two boards have developed a list over several meetings in preparation for this evening. The list is prioritized according to the ZBA and has been reviewed by the Planning Board.

1. 30-35 day review by other boards in town

  • New special permit procedures may take care of this issue
  • Planning Board would like to have 30 days to review a plan before the public hearing so that they can present their report in front of the public
  • Planning boards report may generate additional comments from the public present
  • Should Special Permit applications also be distributed to the water, sewer, fire, police, highway departments or others?

The first item is a required 30 day review of special permit applications. This is subject to interpretations which has caused problems in the past. The ZBA felt there was a 30 day window in which the Planning Board, Conservation Commission and Board of Health have to get back to the board with their comments and the public hearing can be continued until those reports are received. The ZBA has been reviewing possible draft special permit procedures which may take care of this but they are also concerned about it being a burden on applicants.

John T. noted there are two issues: 1. clearing up the 30 day issue and 2. he heard the town saying that the ZBA standards and procedures needed to be tighter for when a developer comes in from out of town. Since the whole wind power issue, the ZBA has done a more detailed review of their procedures. One of the issues is for applicants to submit a lot more detail. Joe is concerned that some may feel it is a burden. Joe does not want to spend too much time on the new procedures tonight since there are other issues to discuss.

From the ZBA's prospective it becomes a tricky detail since they only have 65 days from the receipt of the application dated by the Town Clerk to open the hearing. It sounds like a lot of time but if you have to wait 30 days for board reports and the board only meets once a month it can create problems. For example, what if someone submits an application the day after a ZBA meeting? Then what constitutes 30 days notice to the other boards? In the past the application had been put in the board mailboxes but these are not checked on a regular basis. That was the ZBAs real issue with the 30 day notice. They felt caught between the boards and the state law requirements. Joe thinks everyone on the ZBA understands the intent of allowing the 30 days for review and wants to get this clarified.

John T. read the boards previous notes which stated that the public hearing can stay open until all the boards comments come in. If it is a simple application, they could schedule the hearing for later in the time frame but in a complicated proposal, the hearing could be continued through several meetings. The town bylaw says 30 days but the state law says 35. So, the town bylaw needs to be changed to 35.

Matt said the PB discussed this issue and Section 6.2 of Shelburne Zoning Bylaw is open to a lot of interpretation. Matt pointed out this is related to section 6.7 as well. Matt agrees this is a technicality that the boards need to address. Matt said there needs to be some recognition that the PB has received the application. John T. noted that in the new procedures the applicant has to submit the full application package to the stated boards prior to submitting the application to the Town Clerk and ZBA. Then as Joe pointed out, with this change, the ZBA would know what dates they are working with. Ted was concerned this is a burden on the applicant? John T. felt it was helpful to require the applicant to do this.

Matt said the PB had discussed this quite a bit over several meetings. Matt felt the intent was for those three boards to have an opportunity to prepare and present a report at the public hearing. While the PB appreciates that the meeting could be held open, certainly that is different from having the boards present their comments at the public hearing. This is an important distinction that needs to be clarified. Usually at a public hearing, the boards report before the general public. He appreciates that the 65 days can quickly go by. The PB feels there is an advantage to having the boards present their report at the hearing since that could then lead to a more robust public discussion. The current ZBA feels that if you keep the hearing open then there should be another meeting if you hold it open, they don't like reports coming in after the hearing closes.

Matt said the PB liked Attachment 6 of the draft special permit procedures and he asked if the ZBA was going to approve it. The ZBA noted they are still looking at and feel they need to proceed because of state law. They have included a possible technical compliance waiver and have encouraged an applicant to come in and talk to the board before they get into developing their plans. The ZBA is also concerned about the criteria they would use for granting a technical waiver. As John T. noted, there is an option included to go back and ask for additional information if the project turns out to be much bigger than originally explained to the ZBA or if there are site concerns not explained in the application but observed during a site visit- such as a brook running through their property.

Matt asked if they do not use Attachment 6 how would there be assurance that the boards got the application for review. Joe said they may have to go ahead because of problems with communication at town hall. Ted asked if the applicant has to distribute the applications and have a signed certification before submitting it, does that solve the PB's concerns? Matt said the PB had discussed it and they think it works. Ted asked if just the cover page would be enough as a notification that the application is coming in and then the Board can ask to see it if they want. Matt said that he would be fine if there was one document that all three boards could share. We would need to have a shared cabinet where the copy goes for the 3 boards to review. John T. noted that only saves the applicant making 2 copies and the issue could then be if one board is looking at and the others can't find it. If the applicant is already making at least 6 copies they may as well make the extra couple of copies.

Joe said he thinks the new draft application procedures would solve a lot of problems. We may want to change our Shelburne Zoning Bylaw to 35 days for review instead of 30 days in order to comply with MGL. Joe said that a simple change of Section 6.2 change the 30 to 35.

Matt moved the Planning Board change Section 6.2 of the Shelburne Zoning Bylaw from 30 to 35 days to bring the Shelburne Zoning Bylaw into compliance with MGL. Seconded by Doug.
Vote: 4 in favor - Marchese, Finn, Wheeler, Simmonds
0 opposed
0 abstentions

Matt asked Liz to add this motion to our list of items for review by Town Counsel. Matt noted that this motion will not change the Zoning Bylaw until the next town meeting.

2. Solar power

  • Develop bylaw
  • Develop criteria that ZBA can effectively use in special permit process

Matt said the PB has discussed solar as a board. At our next meeting, someone is coming to describe a process for setting up an energy committee for the town. He has asked the State DOER to send copies of examples of what other towns have done. The Board is hoping to work on this for next town meeting along with the wind. If the ZBA has examples they would like to submit please let the PB know by January. The PB may be passing templates to a committee to review and develop a draft bylaw.

Joe felt the ZBA thinks it is the purview of the PB. Joe and John T. noted that the ZBA tends to like detail-- the more detail makes their job easier. Joe noted the only issue he has heard about solar is the glare coming off the panels even though they are supposed to be non-glare. Matt also said noise from the generator/conversion box but a noise barrier can be built. Secondarily is landscaping to maintaining the rural character of the area. Joe said that putting a specific decibel level in the bylaw is the kind of detail that the ZBA needs for their hearings. Matt said they hope to have a solar bylaw by next town meeting. John T. noted his viewpoint that the PB does the big picture items. The little things are the things the ZBA is hoping to tweak - this is how he sees the role of the two boards. Matt agreed in general and is hopeful that this meeting is the start to an ongoing dialogue that will help the ZBA be effective in their job.

3. Attorney General Recommendations: [the attached Attorney General's letter from 2008 should be referred to for clarification]
Section 2.0. Definitions

  • 2.5 Bed & Breakfast - correct to read as recommended by the AG's office
  • 2.27 Municipal or Non-Profit Trail - review in relation to mobility assisting devices

Section 2.5 in definitions it relates to "other additional Building Code requirements". The AG noted there is only one Building Code. The consensus was to change the bylaw to come into compliance with the AGs letter.

Municipal Trail - the AGs concern was that we can't disallow handicapped accessibility. The consensus was to research appropriate language to address the AGs concern in ADA compliance regulations.

Ordinances/bylaws - find any references to ordinances (cities) and change to bylaws (towns
Ordinances/bylaws - is this just a search and replace or does each change need to go before Town Meeting. This question will be added to our list of questions for Town Counsel.

Section 4.0 "Uses Permitted by Right or Special Permit, or Prohibited"

  • Agricultural Manufacturing allowed by Ch. 40A Sec. 3 Y Y Y Y Y
  • Agricultural Manufacturing, Other, with 5,000 sq. ft
    or less enclosed floor area SP SP SP SP Y
  • Agricultural Manufacturing, Other, with more than
    5,000 sq ft. enclosed floor area N N N SP SP
  • Kennels allowed by Ch. 40A Sec. 3 Y Y Y Y Y
  • Animal Shelters or Boarding Operations SP N SP SP SP
  • Sawmills allowed by Ch 40A Sec 3 Y Y Y Y Y
  • Sawmills, Other N N N N SP Sect. 13

Section 4.0 Agriculture Manufacturing through Sawmills, - the consensus was to follow the recommended changes already there on our list. These changes relate to Ch. 40a Sec. 3: "Subjects which zoning may not regulate; exemptions; public hearings; temporary manufactured home residences."

Matt asked that since these bylaws were voted on in 2008, he asked the ZBA to find words that ZBA would find helpful to have definitions for. In order to prioritize that, where does the ZBA have the most concerns and what definition should the PB be addressing? This calls in a bigger issue relating to the holes in the 2008 bylaw especially in regards to definitions. John T. said this list is already in front of us, for example: what is a kennel as opposed to an animal shelter or boarding operation?
Matt asked Liz to add to our list for Town Counsel on whether there are already standard definitions we should refer to in our bylaws. John T. noted that the issue related to kennels is case law and that this whole section needs to relate to Ch. 40A Sec 3.

Other Use Table/Section 4.0 suggestions

  • Rename "Business Uses" section to "Commercial/Business Uses".
  • Change "Automotive Repair Garage" to "Motor Vehicle Service or Repair" and move it from the Industrial listings to the Commercial/Business listings.
    • Motor Vehicle Service or Repair N N SP SP SP
  • Add new class to Industrial Listings;
    • Welding or Metal Fabrication N N SP SP SP
  • Municipal Trails - why do they need a special permit?
  • Apartment on upper floors - why is this not allowed in RA district when it is allowed in all others?
  • Take a major section of the Use Table one at a time and review/tweak as appropriate

The ZBA does not like the headings within the use table because it starts to cause problems of interpretation by the applicant and they can be misleading. Therefore, just get rid of the headings because it causes some confusion. Beth noted there should be some organization to the use chart. It was decided to look at how other towns deal with their use charts. Matt noted it is up to the applicant to meet the requirements of the bylaw but that we are trying to clear up those items that are headaches to the ZBA.

Automotive Repair Garage to Motor Vehicle Service or repair - how does this relate to non-motorized vehicle (trailers for example)? Matt suggested looking at how other towns deal with this.

Welding or Metal Fabrication should be added to the use chart.

Matt noted we need to look globally at the use chart. John pointed out that looking at the Ns and SPs of the use chart rather than at wording in the chart for clarification could bog down the process. Beth said once we look substantively at the wording in certain changes, we may as well look at the Ns and SPs as well. Matt suggested that strategically at town meeting, it may be appropriate to look at the wording before the changes to the Ns and SPs, it depends upon how you prepare the town meeting warrant. John T. pointed out the advantage of tweaking the bylaws every year so that the bylaw doesn't get out of date and the headaches are addressed as needed.

Municipal Trails - why do they need a special permit and does the work of the Open Space Committee have to get a special permit.? Joe said that came about after there had been an effort to obtain agreement from landowners to allow a town trail through their property and those property owners asked for a public review process. The question of what is a municipal trail is to be added to the list of questions for town counsel. In addition does a trail have to be accepted by the town like a road, or do the trails being developed by open space qualify as a municipal trail? Is there a liability to the town if someone has a problem on a trail created by the Open Space? Would the town be liable if they hadn't gone through the special permit process? Joe said that since 2008 no one has come in for a special permit for a trail.

Apartments on upper floors of commercial or industrial buildings in the RA district - why are these not allowed in this zone when they are in the other zones? No one knew why this had been identified as a N so the PB will take a look at it.

Take a look at the use table a chunk at a time - John T. noted we need to keep track of our review since it is easy to spend a lot of time on each one.


  • Principal Use/Premises Use
  • Manufacturing/Processing/Agricultural Manufacturing/Distribution Center
  • Suites - 2.34 Suites: A structure used or designed for overnight lodging for transient guests with limited cooking facilities in the guest rooms, and which may also provide a restaurant to lodgers and the public. A guest may not stay at such Suites for more than 90 days in any six-month period.
  • Inn-2.19 Inn: An historic structure used or designed for overnight lodging for transient guests, and which may also provide a restaurant to lodgers and the public. A guest(s) may not stay at an Inn for more than 90 days in any six month period [add the word "historic"]

Principal Use/Premises use - Joe suggested we need to look at Ch. 40a. Add this to Town Counsel questions.

Manufacturing/Processing/Agricultural Manufacturing/Distribution Center - need definitions and then plug them (distribution center is a new use classification) appropriately into the use table

Suite (should be 2.3.6. to be in order with our current definitions in alphabetical order) or an inn - different establishments are allowed in different parts of town and sometimes applicants play with what they call their establishment, B&B/motel/inn, etc. Matt asked if this is a use chart issue or do we need definitions. Look at use chart for "Motels. Hotels, Lodging House as opposed to Inns" which have different SPs and Ns in the use chart. Matt asked if it makes it easier to just allow all of them by SP and leave it up to the ZBA to put on conditions based upon each application's circumstances? John T. noted that in the RA district, some people won't mind a B&B but don't want motels/hotels. Do we want definitions or just put it under SP to be managed by the ZBA. John T. reminded everyone that you have to convince town meeting to trust the ZBA to oversee the special permit process for each use category. John T. also said that if a use is allowed in a district with an SP, then the town says it is allowed but with conditions identified by the ZBA. If the N is in the use chart for a specific use in a certain district, that is clear. Ted noted that he doesn't like the definition of suite on our list. The question of whether an Inn has to be historic was raised. Is that a state definition? This is another question for Town Counsel.

Matt suggested that if the voters get to look at the use chart relative to 5 items each year at Town Meeting, rather than trying to address the whole chart at one meeting, it may lead to a more clear discussion as to what the Town really wants.

4. Signs

Joe said the ZBA may be recommending tweaks in this area. Apparently there are some questions regarding interruptions by the Building Inspector. Matt suggested that the ZBA come up with suggestions on how to tweak this area and the rest of the PB members agreed. Joe suggested a call to Jim Hawkins to discuss the problems he has had in implementation with this part of the bylaw. Then the ZBA can develop suggested tweaks for the PB to consider.

John T. suggested that each board should pass on suggestions to the other board. Each point can be assigned to one of the boards who will prepare a draft for both boards to look at and review.

5. Driveway regulations-

  • Shared driveways
    a. Criteria
    b. Should they be allowed
    c. Maintenance agreements
  • Compare to town bylaw - Article 15 Curb Cuts
  • Access to dwelling from road frontage
  • Driveway width - discuss with fire department
  • Jim Hawkins would like to have it in zoning bylaw so that he can enforce

Driveways - many are grandfathered. John T. noted that the emergency concern is if there is no driveway at all from the road frontage. There are many issues and many points of contention about driveways. John T. said that if shared driveways are allowed for new construction, there needs to be deeded restrictions regarding maintenance of that driveway so the Town doesn't end up arbitrating arguments. The key issue is that the driveway has to provide access to the building on the lot. John T said that the building inspector could be responsible for enforcement if the driveway has to come from the road frontage to the building. Joe mentioned it can be a problem when someone changes the design after the special permit is issued. If it is in the Shelburne Zoning Bylaw then the Building Inspector will be responsible for enforcement rather than the Selectmen. This should be followed up with the Selectboard and Jim Hawkins for a discussion just on driveways. Matt asked Liz to get Matt on the Selectboard's agenda at one of their meetings to discuss these issues.

Box trailers left visible on lots (Jim Hawkins)

  • Should there be a time limit on how long they are left
  • Are they violating sign bylaws
  • Without a zoning bylaw, Jim Hawkins can't enforce
    Unregistered vehicles on a lot (Jim Hawkins)
  • Compare to town bylaw
  • Need a zoning bylaw for Jim Hawkins to enforce

Other Jim Hawkins concerns are both box trailers (there is nothing currently in the zoning bylaws on this) and unregistered vehicles on a lot. This is also an issue to discuss with Selectmen and Jim Hawkins. Currently we have campers and RVs in the bylaw but not box trailers and unregistered vehicles. It was suggested that Jim Hawkins be consulted regarding suggestions or examples on how other towns deal with these issues.

6. Open Space Development

  • Addressed through special permit under Subdivision Control
  • Is there a need for criteria for that special permit process [ZBA suggests this is PB task]

Open Space - the PB is currently reviewing draft revised subdivision regulations. This question relates to cluster housing options under subdivision control and how that is managed by the PB. Matt noted that under the zoning bylaw the PB has responsibility for subdivisions and the ZBA has responsibility for all other special permits. He asked if the ZBA has any concern about the division of responsibility.?

Ted mentioned that a future discussion should be on the Village zoning since most of the Village is now comprised of nonconforming lots which means they have to get a variance or special permit to make any changes on their properties. Seventy-five percent of the village lots are non-conforming since the lot size requirement is 1/2 acre which is actually very rare in that district. Ted suggested that the PB look at this issue, its relationship to lot size and make the zoning realistic for that district Village. That would relieve the ZBA from having to hold hearings on anything that happens in the Village. Ted suggested this is not urgent but should be looked at as we work through these revisions.

7. Commercial radio district regulations [ZBA suggests they should do this tweaking]

  • Clarify definition
  • Ensure words are used appropriately throughout bylaw
  • Review definition of words used to describe structures - towers, facility, building

Commercial radio district regulations - ZBA suggested the should address their concern of the need to tweak this part of the bylaw. However, it is related to what the PB is going to be looking at in regards to wind because they will both be looking at definitions of structures, towers, building, etc. Matt would actually like the ZBA to try to address these revisions by December or January since it overlaps with the work the PB will be doing to develop a wind power bylaw. If would be nice for the words to be used consistently. This is also an area to discuss with Town Counsel to check to see if there is any new case law on this matter.

8. Mobile Home Camper - section 12.0

  • Does it make sense to have this section?
  • If so, discuss enforcement with Jim Hawkins - does he need clarification?

Mobile homes/campers section 12 - Beth just brought this up and is questioning if enforcement is being carried out fairly. If this section is not going to be enforced, then maybe this shouldn't be in the bylaw. This is another issue to discuss with Jim Hawkins. We could ask him if there has been any complaints and ask about any concerns he has regarding his enforcement responsibility with this section of the bylaw.

Building heights (an issue raised after the Coffee Roasters building burned down)

  • Cost effectiveness of increasing height to minimize footprint
  • Relate it to all 5 zones in town
  • Review with fire department and emergency personnel

Building Heights - Joe noted that when the Coffee Roasters building was rebuilt, the applicant asked for a variance but it didn't qualify for a variance. The applicant went to town meeting to change the bylaw to allow building heights over 35 feet under SP. Then they could get a SP for the Cooperative Bank building. Beth asked if 35 feet is an archaic number at this point since that was the height of the tallest fire department ladder at the time the bylaws were written. John T. said that rural Shelburne Fire Dept. has 35 feet ladders and the Village fire department has a 75 foot ladder. However, there are life safety issues depending upon the building and how quickly people can be rescued. Joe noted that 35 feet probably conserves the town cultural heritage.

Matt said we would like to put it on the calendar for the two boards to meet again in 6 months to keep this process going. John T suggested both boards shoot ideas back and forth as each board keeps working on their specific tasks. At their next meeting the PB will sit down and put down a timetable for addressing the issues raised this evening and shoot it over to the ZBA.

Motion to adjourn was made by Doug and seconded by Beth.
Vote 8 in favor, 0 opposed, 0 abstentions

Meeting adjourned at 9:50 pm.

Respectfully submitted by,

Liz Kidder
Administrative Assistant