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Zoning Board of Appeals — Meeting Minutes — September 3, 2009

A duly posted meeting of the Shelburne Zoning Board of Appeals was held at the Selectmen's Meeting Room at Town Hall, 51 Bridge Street, Shelburne, on September 3, 2009.

Members Present: Joseph Palmeri, John Pollard, Theodore Merrill, Catherine Smith, William Sweeney, Lowell Laporte, John Taylor
Clerk: Faye Whitney
Members Absent: none
Others present: Barry Lapping, Carl Gehring

Chairman Joe Palmeri called the meeting to order at 7:05 p.m.

Mr. Palmeri told the Board about a training session for town officials that would be held on Sept. 23, in Buckland, regarding open meeting and anti-harassment laws.

Mr. Palmeri said a bond had been requested from SBA in the amount of $50,000. Instead a bond for $37,500 was received, which was based on an estimate of the costs to remove their tower. Mr. Palmeri and Mr. Taylor had then requested a copy of the estimate and also asked for a bond to cover the cost of maintaining the access road. There has been no response from SBA to those requests. Mr. Palmeri wants those issues resolved before any more permits are issued involving the SBA tower. The administrative assistant was asked to write a letter to SBA requesting and explanation of the bond and a copy of the estimate.

Carl Gehring, representing RCC/Atlantic, dba Verizon Wireless, met with the Board for a pre-application meeting as required by Section 16 of the bylaws. He told the Board that Verizon wishes to co-locate on an existing tower located on Old Albany Road. RCC/Atlantic is already located on the existing tower. He is asking for approval of architectural and engineering plans.

The proposed plans include a shelter, which would be within the setbacks. There would be no increase in the tower height. Some existing shelters would be removed. The fence surrounding the tower would be bumped out but would still be within the setback limits.

Mr. Palmeri said he wanted to make sure a structural analysis was done. Mr. Gehring said one had already been completed. Mr. Palmeri said the Board wanted the towers to have power during emergencies for public safety reasons. Mr. Gehring said Verizon always has generators that could stay on indefinitely.

The Board requested proof of property ownership and proof that the site is within the overlay district.

There was a question as to whether this application would require a full Special Permit hearing. Mr. Taylor said Town Counsel wants all similar applications treated as Special Permit hearings, Mr. Gehring felt that section 16.6C of the Shelburne bylaws exempt the tower as an existing structure.

Mr. Gehring stated that Verizon will be submitting applications for the permitting on or about September 7 for both this tower and one off Cooper Lane in Shelburne. The latter tower is also owned by SBA Properties and a pre-application meeting has already been conducted for that application.

At 8:10 p.m. Ms. Smith recused herself as an abutter as discussion began on a change to a tower located off Cooper Lane.

The tower in question is outside the overlay district and is a non-conforming structure built in the 1960s. RCC/Atlantic is already located on the tower. The proposed plan is to remove and replace some equipment, an existing propane tank and generator would be removed and a building would be constructed. Based on changes to the original proposal, and relocation of some equipment on site, Mr. Gehring said that setback requirements would be respected. Some antennae, which pre-date the zoning bylaw, will be swapped. Mr. Gehring said equipment would not be added, just changed,

At 8:25 p.m. Ms. Smith returned to the table.

Mr. Laporte moved to approve the Vipassana Meditation Center hearing minutes of August 6. This was seconded by Mr. Sweeney.
Voting in favor: Catherine Smith, John Pollard, Ted Merrill, William Sweeney, Lowell Laporte
Opposed: None
Abstaining: Joe Palmeri
Not voting: John Taylor

At 8:40 p.m. Mr. Palmeri left the meeting. Mr. Merrill took over as chair pro tem. Mr. Sweeney made a motion to approve the application of the Vipassana Meditation Center for a Special Permit to modify an existing building, which would result in exceeding the maximum height limitation of the zoning bylaws. This was seconded by Mr. Laporte.

Mr. Pollard said that MGL Ch. 40, Sec. 3 (the Dover amendment) states that zoning cannot be used to restrict the religious use of a property. Mr. Pollard said that this project falls within the Dover amendment and the height extension is not unreasonable. Mr. Sweeney said that the applicant would not need to prove what is reasonable, but the ZBA would have to defend what might be unreasonable.

Mr. Taylor said compatibility with the area and interference with existing structures should also be considered, Mr. Sweeney said that the structure would be compatible with nearby building which are also part if the meditation center, otherwise the structure would not be compatible with the New England countryside. However, that is why the Dover amendment exists.

Mr. Sweeney said that one abutter said he did not want to see the structure, and perhaps conditions should be made regarding lighting. Mr. Pollard said that the lights on the Congregational Church go out at about 11 p.m. It was understood from the testimony given at the previous meeting that any illumination would be normal exterior lights and that any outside lighting would likely be similar to that on other churches in town.

Mr. Sweeney moved to amend his earlier motion to include in the language of conditions that lights shining on or reflected off the zedi be turned off by 11 p.m. This was seconded by Ms. Smith.

Mr. Taylor said the other churches sin town were grandfathered regarding lighting, but even the Dover amendment says that lighting may be restricted.

Voting in favor of the amendment: Catherine Smith, John Pollard, Ted Merrill, William Sweeney, Lowell Laporte
Voting against: None
Abstaining: None
Not voting: John Taylor

The Board discussed the criteria for issuing a Special Permit. More than 1,700 people per year use the center, which contributes to the economy of the town. The existing structure holds 150 people and the roof structure will not change that nor will it change the amount of vehicles using the property. There is currently space for more than 80 vehicles. Public services and use of utilities should not be impacted by the roof structure. The Department of Environmental Protection has inspected the VMC, and copies of necessary permits are filed with the Board of Health. As a non-profit organization the center is tax exempt so the town's tax base would not be affected. There will be minimal impact on town services. There should be no change in the need for fire or police protection or for additional snow plowing or road maintenance. The exiting surface and ground water runoff is adequate and should not be affected by the additional of the roof structure. It was found that the benefits of this project outweigh any possible adverse effects.

A motion was made by Mr. Sweeney to further amend the motion on the floor to add the condition that all parking be restricted to the property unless prior approval is granted by the Chief of Police for temporary parking elsewhere. This was seconded by Mr. Laporte.

Voting in favor of the amendment: Lowell Laporte, William Sweeney, Catherine Smith
Voting against: John Pollard, Ted Merrill
Abstaining: None
Not voting: John Taylor

Discussion followed on whether to limit the Special Permit to the applicant. Mr. Sweeney made a motion to limit the Special permit to its present use by the applicant. This did not receive a second.

Based on the above findings, Mr. Sweeney moved to grant a special permit to the Sayagyi U Ba Khin Memorial Trust of Massachusetts, Inc. dba Vipassana Meditation Center at 386 Colrain-Shelburne Road, Shelburne, MA 01370, to allow for the modification of the Pagoda building by the addition of a zedi not to exceed 56 feet and 5 inches, measured from the top of the zedi to the grade plane of the existing structure, subject to the following conditions.

1) Any lights shining on, or reflecting off the zedi must be turned off by 11 p.m. and

2) All parking is restricted to the premises unless prior approval is granted by the Chief of Police for temporary off-site parking.

Voting to grant the Special Permit: Catherine Smith, John Pollard, William Sweeney, Lowell Laporte, Ted Merrill
Voted opposed to the Special Permit: None
Not voting: John Taylor

At 9:55 p.m. Ms. Smith moved that the meeting be adjourned. This was seconded by Mr. Sweeney. The vote in favor was unanimous.

Respectfully submitted,

Faye Whitney, Administrative Assistant