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    Zoning Board of Appeals — Meeting Minutes —June 4, 2009

    A duly posted meeting of the Shelburne Zoning Board of Appeals was held at the Main Meeting Room at Town Hall, 51 Bridge Street, Shelburne on June 4, 2009.

    Members Present: Joseph Palmeri, William Sweeney, Lowell Laporte, John Taylor, Theodore Merrill, John Pollard
    Members Absent: Catherine Smith

    Others present: Jeffrey Davis

    The meeting was called to order by Chairman Joe Palmeri at 7:01pm.

    The Board reviewed the minutes of the minutes of the Omnipoint Hearings held on 4/2/2009 and 5/7/2009. The May 7th minutes were corrected with clarifications of the heading, a question by Catherine Smith, and to an inquiry about whether a setback variance is needed. Merrill moved to accept both sets of hearing minutes, with the corrections noted, Pollard seconded, and the minutes were accepted.

    At 7:15pm Chairman Palmeri recessed the regular meeting for the purpose of conducting a hearing on the application of Omnipoint Communications Inc for the co-location of commercial mobile radio antennae and equipment off Tower Road in Shelburne.

    At 8:20pm Palmeri called the regular meeting back to order following the Hearing. The public hearing was closed allowing for the Board to consider the application.

    Discussion was held in regard to amended application (dated 5/19/2009) of Omnipoint Communications Inc for a Special Permit for the installation of CMRS equipment under Section 16.5, a height variance to the limitations of Section 16.5.B.1, and other relief as required under the Bylaw to proceed with the project. Guidance from Town Counsel was shared that the tower is a pre-existing non-conforming structure, a height variance is necessary if the Board deems it appropriate to approve the applicant's revised request, and the Board must accept the architectural and engineering (A&E) plans as described in Section 10.1.2. The Board debated the necessity of a variance, as opposed to a Section 16 "waiver" or a Section 10 "finding". The Board reviewed the MGL Chapter 40A criteria for a variance, the Special Permit criteria, and the considerations for altering pre-existing non-conforming uses and structures.

    The consensus of the Board was that the application was in keeping with the intent of Section 16 ∏ to encourage co-location of new communications equipment on existing structures, and that the installation does not appear to create any new "problems" for abutters or the general public as evidenced by the lack of any opposition received by the Board in writing or at the public hearing. In regard to the question of the alteration of the pre-existing non-conforming use/structure (radio tower):

    Sweeney moved that the Board determine that, in accord with Section 10.1.2, and based on the information provided at the public hearing and written submission and plans dated 5/18/2009, the installation of antennae, equipment shelter, and ancillary equipment by Omnipoint Communications Inc, at the SBA Properties tower located at 202 Cooper Lane Road, will not be substantially more detrimental to the neighborhood than the existing use and/or structure. Merrill seconded the motion.

    Voting in favor: Palmeri, Taylor, Laporte, Sweeney, Merrill
    Voting in opposition: None
    Absent: Smith
    Abstaining: Pollard

    The original variance request for a variance to the setback requirements of the Bylaw was amended byu the applicant. The applicant does request a height variance to allow the equipment to be installed above the "10 feet above the tree line or 100 feet" limitation of the section.

    Sweeney moved that the Board grant a dimensional variance pursuant to Section 15.2.1.2 to the height limitation of Section 16.5.B.1 to allow Omnipoint Communications Inc, based on the information provided at the public hearing, written submission, and plans dated 5/18/2009 and the findings of the Board, to colocate antennae at 147' above ground level on the existing 186' tower at the SBA Properties tower located at 202 Cooper Lane Road, where this exceeds the "10 feet above the tree line or 100 feet" limitation of the section. Merrill seconded the motion.

    Voting in favor of Variance: Palmeri, Taylor, Laporte, Sweeney, Merrill
    Voting in opposition: None
    Absent: Smith
    Abstaining: Pollard

    Next the Board considered the A&E plans submitted for the project.

    Sweeney moved to approve the Architectural & Engineering Plans dated 05/18/2009 submitted by Omnipoint Communications Inc, based on the information provided at the public hearing, the applicant's written submission, the approval of a height variance for the project, and the findings of the Board, for the installation of antennae, equipment shelter, and ancillary equipment by Omnipoint Communications Inc, at the SBA Properties tower located at 202 Cooper Lane Road, as permitted under Section 16.5.B of the Zoning Bylaws; said approval given in lieu of a Special Permit. Taylor seconded the motion.

    Voting in favor of Approval: Palmeri, Taylor, Laporte, Sweeney, Merrill
    Voting in opposition: None
    Absent: Smith
    Abstaining: Pollard

    The Board reflected on the previous application and discussed the need to clarify sections of the Bylaw. Palmeri asked to keep a list of questions/issues for the Planning Board. Items added to the list to this time are: clarifications to Section 16's terms, allow for more streamlined co-location on existing towers, and discuss tower height limitations. Also added were prior questions about: the language in the sign regulations on whether two-sided signs are one or two signs, whether the industrial special permitting requirements should be made more liberal (10,000 ft2 versus 5,000 ft2), and the reintroduction of the "lost" Home Business section.

    The Board reviewed prior minutes. Pollard moved, Merrill seconded, and the Board voted to accept the 5/7/09 Hearing Minutes for DeAngelis with the clarification that the permit dealt with "domestic pets not just dogs".

    Merrill moved, Pollard seconded, and the Board voted to accept the minutes of the 5/7/09 regular meeting.

    Merrill moved, Taylor seconded, and the Board voted to accept the minutes of the 4/2/09 regular meeting.

    The Board discussed advice from Town Counsel that, in the future, the Board not extend public hearings, dates or timelines if an applicant fails to appear for a hearing. While good-natured, such an action can cause problems complying with the legal timelines set forth by MGL Chapter 40A. Town Counsel recommended to the Chair that the Board vote to close the hearing in such a circumstance and, in most cases, and then vote to deny the petition (request). The Board should also have a written form to record the applicant's agreement to the extension of public hearings, timelines, et cetera; which the Chair has since developed for the Board.

    The Board reviewed notices sent from Town Counsel stating that the legal action against the Town by Terry Kimball, relative to the denial of his Request for Variance, has been dismissed by the Land Court; and that the suit by Pioneer Nutritional Formulas v Mitchell Excavating et al, relative to Mitchell's request for a Special Permit, has also been dismissed by the Land Court.

    Sweeney moved to adjourn, Taylor seconded and it was voted to adjourn at 10:10pm.

    Respectfully submitted,

    John E. Taylor, Clerk