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Zoning Board of Appeals -- Meeting Minutes -- May 24, 2012

A duly posted special meeting of the Shelburne Zoning Board of Appeals was held in the Cafetorium at Buckland Shelburne Elementary School at 75 Mechanic St, Shelburne, on May 24, 2012.

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

Chairman Joe Palmeri called the meeting to order at 7:36 pm and welcomed those present. He reported no new mail except for various written testimony for the evening's Public Hearing. The correspondence was provided to the Board members, and will be including in the application file.

The Chair reported that the Town Clerk received a letter from D. Frederick Field representing Mount Massaemet Windfarm Inc. on May 22, 2012 requesting that the Board allow them to withdraw their application for Special Permit.

The Chair reported on his discussion with Town Counsel and reviewed the Board's options in response to the request. The two real options are to allow the withdrawal without prejudice, or to not allow the applicant to withdraw the application. If the Board were to vote the latter, then the Board would need to proceed to open the Public Hearing, hear presentations, take testimony and ultimately vote to approve or deny the application, either tonight or at a future date to be determined. Palmeri presented his list of "pros and cons" for accepting the applicant's request to withdraw without prejudice. The Chair asked the other members to summarize their support or concern for allowing a withdrawal.

The Chair allowed for input from those citizens in attendance. Attorney Adam Costa, representing a number of residents of north Shelburne, reviewed the situation, concurred with Town Counsel in regard to the options, and presented that his clients strongly urge the Board to not allow the applicant to withdraw. The Board was encouraged to open the Public Hearing and, based on the limited information provided by the applicant, vote to reject the Special Permit. The benefit of such a move would be to prohibit the applicant from submitting a similar application in the next two years. Costa reviewed the process of determining whether a "new" application constituted the same or a different proposal in the interim. There was discussion on the facts that the Town had recently voted not only a 1 year moratorium on applications, but new bylaw wording which essentially does not allow for the same "commercial" wind power project to be permitted in any case.

Palmeri reported that the Board had to make a decision swiftly as the Public Hearing in regard to the application is scheduled for 8:00pm.

Taylor moved to accept the applicant's request to withdraw, and allow Mount Massaemet Windfarm Inc to withdraw without prejudice. Sweeney seconded the motion. Discussion included more on possible timing of future submissions, potential impact of the Town Meeting votes and if the Attorney General could disapprove of them, and whether the applicant may appeal a recent vote by the Planning Board rejecting a preliminary subdivision submission. Laporte expressed frustration with the applicant's repetitive applications which did not contain essential information. There were concerns about the impact of long hearing process on the Town, townspeople, whether it is fair to the applicant to proceed with a hearing that they do not wish to have, and some conflicting statements from zoning experts. The matter was brought to a vote and the motion passed 4 in favor and 1 opposed.

Voting in Favor of allowing withdrawal without prejudice: Merrill, Sweeney, Taylor and Palmeri
Voting Opposed to allowing a withdrawal without prejudice: Laporte

Palmeri explained that since the Board had posted for a Public Hearing, and some members felt it necessary to open the hearing as posted he would open the Public Hearing on the Special Permit application of Mount Massaemet Windfarm Inc for a Special Permit to install a four turbine wind facility. The hearing was opened at 8:05pm with five members of the Board and 27 others present.

Taylor moved that, in light of the fact that the applicant's request to withdraw their application had been granted, there was no active application, and therefore no reason for the hearing, the hearing be closed. Sweeney seconded, and it was so voted at 8:05pm.

Voting in Favor of closing the Public Hearing: Merrill, Sweeney, Taylor and Palmeri
Voting Opposed of closing the Public Hearing: Laporte

Those in attendance requested an opportunity to comment on the situation. The Chair, allowing for this unanticipated feedback, opened the meeting for public comments. Board members heard and responded to the following comments:

Judi Truesdell told the Board that they had erred and since there was no "good reason" for allowing the applicant to withdraw their application the Board was in violation of its own rules and regulations. David Engle spoke to object to the Board allowing withdrawal without prejudice. He says that the Board can vote to allow the applicant to withdraw but with prejudice, and he disagrees with Town Counsel's legal opinion. Sue Fraser Frankowicz praised the many volunteer town Boards but cautioned the Board about the legal costs of repetitive applications such as this most recent application. Michael Parry also stated he did not agree with the Board allowing the withdrawal without prejudice and encouraged residents to support better candidates for Town Boards. Janet Sinclair stated she wished the Board had not accepted the withdrawal and allowed the Special Permitting process to proceed, and judge the application by its merits. Carolyn Engle inquired why the Board did not reject the application since it was not submitted with a certified check. Ray Hartman asked for the "good reason" why the Board allowed the withdrawal. He stated that the vote allows Field to resubmit again, which he is certain he will do within a couple months. Members of the Board responded with their "good reasons" for allowing withdrawal and discussed the rationale outlined in the Boards rules.

Taylor reported that the two decisions relative to applications submitted by and on behalf of Greenfield Savings Bank were filed with the Town Clerk on May 18, 2012.

Palmeri reported that the Board of Selectmen hired a new "Clerk" for the Board, and welcomed Elizabeth Kidder of Leyden. He said that Kidder, while in attendance tonight, will be officially working at the next Board meeting on June 7. The Board will likely refer to her as our administrative assistant to avoid confusion with the elected "Clerk". Kidder described her role working for three Boards - the ZBA, Planning Board, and Board of Health - and hoped she could provide good inter-communication in this role.

Members expressed interest in discussing application fees, in light of the administrative, advertising, and legal costs facing the Town. Palmeri also asked to discuss at a future meeting how the board uses and pays for consultants. Sweeney also wondered aloud about the rationale for allowing commercial generating facilities in the use table, and inquired if any discussion in this regard might be found in the minutes of the Planning Board hearings from 2007-2008. The topics of "complete" applications, submission requirements, and ways to improve the permitting process were spoken. Palmeri asked the members to think about any other concerns which might be discussed at the next meeting.

Laporte moved to close the meeting at 9:10pm, Taylor seconded and it was so voted unanimously.

Respectfully submitted,

John E. Taylor, Clerk