HomeMy WebLinkAboutMinutes - PB - 01/01/2010 - Planning Board Meeting Minutes 2010 (5) Planning Board Meeting APPROVED MINUTES 1 of 8
January 6,2010
COHASSET PLANNING BOARD MINUTES
DATE: WEDNESDAY, JANUARY 6,2010
TIME: 7:00 P.M.
PLACE: COHASSET TOWN HALL— AUDITORIUM
41 HIGHLAND AVENUE, COHASSET,MA 02025
Board Members Present: Alfred S.Moore,Jr. - Chairman
Stuart W. Ivimey,Vice Chair
Jean Healey-Dippold, Clerk
Charles A. Samuelson
Clark H. Brewer
Board Members Absent:
Recording Secretary Present: Jo-Ann M. Pilczak
Meeting called to order at: 7:00 P.M.
7:00 P.M. ADMINISTRATION
• VOTE TO ACCEPT DECEMBER 16,2009 MINUTES WITH THE SETBACK MEASUREMENT
CORRECTIONS FOR 21 DEEP RUN ZBA RECOMMENDTION
MOTION: By Member Ivimey
SECOND: Member Healey
VOTE: 5-0 MOTION CARRIES
• VOTE TO ACCEPT DECEMBER 16,2009 EXECUTIVE SESSION MINUTES
MOTION: By Member Ivimey
SECOND: Member Samuelson
VOTE: 5-0 MOTION CARRIES
LVOTE TO APPROVE PLANNING BOARD 2009 ANNUAL REPORT
OTION: By Member Ivimey
SECOND: Member Brewer
VOTE: 5—0 MOTION CARRIES
• SET FEBRUARY MEETING DATES—February 3 and February 17
7.10 P.M. COHASSET HEIGHTS PRELIMINARY SUBDIVISION FILING CONTINUED PUBLIC
HEARING. APPLICANT: JAMES SWEENEY, CCI ENERGY,LLC; OWNERS: PAUL BARRY;
CROCKER LANE REALTY TRUST; CROCKER II REALTY TRUST- APPLICANT SUBMIT LETTER
TO WITHDRAW APPLICATION WITHOUT PREJUDICE
MOTION: By Member Ivimey to close the public hearing and to accept the applicant's request to
withdraw without prejudice
SECOND: Member Samuelson
VOTE: 5—0 MOTION CARRIES
7:20 P.M. PUBLIC HEARING—REMAND OF CCI ENERGY LLC'S APPEAL OF THE PLANNING
BOARD DENIAL OF A SPECIAL PERMIT FOR THE CONSTRUCTION OF TWO WIND TURBINES
AT 215 CJC HIGHWAY -
In attendance for Planning: Town Counsels Kimberly Saillant,Richard Hucksam; John Modzelewski, Civil
Designs Inc.; Jeffrey Overton,AcenTech.
In attendance for Applicant: James Sweeney, CCI Energy; Gordon Deane,Palmer Capital; Charles Eisenberg,
Solaya Energy LLC;Attorney Kenneth Ingber; Ed Pitcavage, Superintendent- Trustees of Reservations; Larry
Chretien, Executive Director Energy Consumers Alliance of New England.
Member Healey-Dippold read public hearing advertisement.
Town Counsel Saillant explained history of MGL Ch. 40A, Section 17 zoning appeal against Planning Board
decision. Applicant can introduce additional materials that were not presented to the Board. In accordance with the
Land Court rules the parties are required to engage in discussion regarding alternative dispute resolution—Board
did that. Executive sessions were properly noticed and held and,noted for the record—no promises or agreements
Planning Board Meeting APPROVED MINUTES 2 of 8
January 6,2010
were made during those executive sessions. Initial vote of the Board was 3 — 1 to approve the project however,
since a supermajority vote of the Board was required to approve the project,the motion to approve failed. Updated
noise study was undertaken,reviewed, commented on and responded to and,a further study was submitted and
reviewed by an acoustic expert. Other proposed modifications to the application along with other mitigation
matters were discussed.Applicant has the right to modify its proposal and to suggest otherwise is simply incorrect.
Applicant did that and will be discussed tonight. In summary,the focus of this remand was originally the new
acoustic study and the Board's acoustic expert's analysis and comments regarding that original,then revised
submission. During the process and after the remand order was issued, it came to the Board's attention that there
may be a tower location issue which the applicant may address this evening as well.
Member Moore read anonymous threatening letter delivered to his home. Explained that this will not be
tolerated. Letter has been turned over to police for investigation. Moore also explained ground rules of the meeting
—public comment will be recognized after applicant presents. Each individual will have one opportunity to speak
for five minutes and must come to table in front of Board to address the Board from that table.
Attorney Kenneth Ingber: Recapped history of denial of special permit, July, 2009 appeal filing in Land Court,
and preference for trying to pursue alternative remedy rather than litigation.
Sound - sound study concluded that the operation of the wind turbines does not violate the Cohasset zoning bylaw
or the DEP noise regulations. Town Engineer expressed some concerns about the methodology used in sound
study,there were differences among professionals and Town Engineer noise consultant opined in the end that
generally,the sound approach used was valid. Town sound consultant suggested that to be on the conservative side
the town should add a cushion of 2-3 dBA. If 3 dBA are added to the results there is one location—on the 5th floor
of the proposed Avalon building(as yet unbuilt)- where under the worst conditions,the wind turbines would be
projected to produce approx. 11 dBA which is 1 dBA over the max. allowed by the DEP and the bylaw. Applicant
asked sound engineer to review and redo the entire sound study using an even more conservative set of assumptions
—resulting in the Sept. 2009 Acoustic Study. This study was presented to the Planning Board in Executive Session
and to the Town Consulting Engineer. Sound study focused on any exceedance of the noise standard of the bylaw
under worst case conditions and that would only happen if a number of factors all happened at the same time:
1. It would have to be as quiet as it ever gets in Cohasset—middle of night,winter,no leaves,no traffic or animal
noise;
2. Wind speed has to be around 18 mph—the speed at which there is a maximum differential between the sound
coming from the wind energy project and the background sound;
3. The 18 mph wind has to be coming exactly from direction of the wind turbine because noise carries most in the
direction of the wind. Because there are two wind turbines being taken into consideration, in the case of the one
Avalon location, wind has to be coming from two directions at the same time—which is not possible;
4. The turbines have to be exceeding the guaranteed maximum sound level from the manufacturer—the sound study
assumes even higher sound levels than the manufacturer. The worst case conditions occur infrequently and the
study assumes worse than the worst case conditions.
Ways the supplemental sound study was more conservative than the original sound study:
1. Assumed sound level of 104 dBA at the nacelle compared to the manufacturer guarantee of 103 dBA;
2. Minimum cut-in-speed is projected to be 3 meters/sec or about 6.7 mph. Background noise level readings that
were under 3 meters/sec averaged 35.4 dBA with the lowest level being 34.4 and the highest level being over
37.0 . However, lower background levels of 32.3 at some of the higher wind speeds so rather than use the
lowest that they recorded,they took the lowest measure they had under any circumstances which was 32.3,
rounded it down to 32.0 and used that measure as their more conservative background level. The projected
maximum dBA increase at these low wind speeds at the closest potential receptor(5th floor Avalon)was more
than 2 dBA below the maximum allowed 10 dBA. Town's Consultant stated that the ambient background levels
of 32 and 35 dBA for different wind conditions are reasonable.
3. Ground absorption: Area around the proposed wind turbines is virtually all absorptive material with almost no
paving. In the original study,there was some question as to whether the assumption that it was all absorptive
was conservative enough, so even though the paved area represents a very small percentage of the total area, a
new factor was added indicating it would be partially reflective so it would be more conservative.
Again,the study modeled worst case scenarios,but that is not what is expected—the expected is substantially
below that maximum. Supplemental study confirmed the earlier conclusions—sound limitations of the bylaw or the
DEP are not exceeded at any sensitive receptor.
Planning Board Meeting APPROVED MINUTES 3 of 8
January 6,2010
With the new,more conservative assumptions,the Town's noise consultant and engineer conclude that this study is
reliable in what it states and that the bylaw maximum will not be exceeded at any point. At the 5th floor of Avalon,
under the worst case situations,there is a projected 9.7 dBA—it approaches,but does not exceed the limits.
Ice Drop: In original application meetings, applicant's engineer was hard pressed to explain how small an issue this
was— 1 in 5 million chance that someone standing in the same 1 sq. meter area 24 hrs./day for an entire year would
be hit by ice. To address the ice drop concern,the applicant proposes several mitigation measures:
LBlades will have Teflon like coating
2.Sensors that be installed to note imbalance so, if ice forms there will be a mechanism to shut down the turbines.
However, if the blades accumulate ice and are shut down, at some point the ice will drop. Modification measures
include stopping blades parallel to Crocker Lane so blades will not be over any area where hazard will be created.
3.Restart will not occur without physical inspection.
Location: There was concern regarding structural integrity of the turbines,particularly the turbine on Crocker
Lane. Applicant was skeptical about whether structural integrity was within purview of Planning Board or Building
Inspector. However,they did move front turbine from originally proposed location and further away from
Hingham Lumber so, in worst case(turbine breaking at base and turbine falling over with the rotor in its highest
point)it would not fall on Hingham Lumber. While not required by bylaw, applicant agreed to do it as part of give
and take. This location was on the SITEC Environmental 11/18/08 plan(No. SP-6) submitted to Planning Board
entitled"Site Plan Wind Turbine Location and Construction Equipment Access", last revised 04/01/09.
Community Benefits:
1. Visual Impact Mitigation: Will reimburse each Rose Hill household up to $1,000 for landscape planting as a
visual buffer. Wind turbines are large and must be out in the open.No one is pretending that the proposed
landscaping will make the project invisible. It is only one aspect of the proposed mitigation—no more,no less
than what it is.
2. Developer will contribute $50,000 or 50%(whichever is less)of cost of sidewalk along Rt. 3A from Rose Hill
Lane to lower King St. should the Town wish to pursue this project.
3. Height reduction of one or both towers and, one tower instead of two towers: Applicant's position is that the
bylaw allows 100 meter towers and that the Scituate Hill location is the single most appropriate and correct
location in Town. Applicant looked at many variations(requiring a considerable amount of computer analysis)
and, in the end,were not able to find a satisfactory alternative to the initial proposal of two, 100 meter tall
towers. They still take the position that this is allowed by the bylaw, contemplated by the bylaw and in the
correct location.
4. Cohasset High School Science Dept. will receive internet access to real time electric generation info. associated
with the project. CCI will commit$1000 to be awarded to the student(s)with the best concepts for display
(determined by Science Dept) and an additional $5000 for hardware and display to implement winning proposal.
5. Green Community Benefits: Net metering allows rate payers to participate in a meaningful way and be
rewarded for supporting green power in their community. Propose partnership with the Mass Energy
Consumers Alliance—Green Start Program. Cohasset households that sign up for the Green Start Program will
be entitled to an annual rebate from the project equal to 110%of what one pays into the Green Start Program.
Estimates are that as much as 400 households could participate and be rewarded for participating. CCI will offer
to the Town of Cohasset as well so the Town can honestly claim to be receiving 100% of its power from
renewable sources while saving additional funds.
6. Financial Benefits to town: Town is still waiting until special permit is issued before talking with CCI about this
aspect. However,projected benefits fall into two broad categories:
a) Real Estate Taxes; not clear if this project is subject to real estate taxes. If it were,tax estimate is $78,700.
If it is not subject to taxes, CCI will make payment in lieu of taxes, if appropriate and lawful. If not,CCI
will offer increases savings in electric bill of corresponding amount. In either case, Town gets benefit.
b) Electric Bill Savings: Town uses 4.9 million KW annually which is approx. 60-70%of what this project is
expected to generate. Applicant proposes to share the benefits of net metering—Town serves as host
customer of the project by physically connecting the cable to the water tower on Scituate Hill. CCI,Town of
Cohasset and National Grid will enter into an electrical interconnection agreement in order to take advantage
of the net metering benefits under the Green Communities Act. Then CCI and the Town will enter into a
power purchase agreement which addresses the financial terms. Financial benefits should be 10-20%of the
Town's annual electric bill which is approx. $788,000 via Town netting a payment on power equal to 50%of
the distribution charge of approx. $0.04/kw, or,town could minimize annual increases in electricity rates,
Planning Board Meeting APPROVED MINUTES 4 of 8
January 6,2010
fixing price for electricity over period of time putting risk of price fluctuation on CCI. Financial benefits
equate to 3 teacher salaries or 2 municipal salaries plus annual municipal vehicle replacement.
John Modzelewski: Sound consultant Jim Barnes (Acentech)did state that the sound study methods are sound and
reasonable and were done with an acceptable amount of care. The impact at the property lines is still nebulous,
quoting Jim Barnes 11/09/09 letter—"The new model does not address current sound levels at community
property lines. Determined sound levels are expected to, at times, exceed MADEP Noise Guidelines (specifically
the 10 dBA broadband sound increase criterion)at locations along the site's property lines. We expect that the
Town could discuss this issue with MADEP and decide whether to relax strict the application of the MADEP
Noise Guidelines at the community property lines while maintaining enforcement of the guidelines at all noise-
sensitive receptors". In this regard,Modzelewski stated that the MADEP property line issue has always been a
nebulous one and remains so,but apparently, on a case by case basis,the guidelines at the property line are relaxed
as long as the noise sensitive receptors are not—how this helps the Board in interpreting its own zoning bylaw is
for the Board to decide. We are looking at existing structures in the revised report and looking at proposed
structures—the fact that wind is coming from two directions, its assumed worst case scenario simultaneously at
both towers would be expected to diminish the noise in the real life instance and we are estimating, at this point in
time, a background noise level in an area that has no building or residences in it(Avalon property). At the time
that there are residences, ambient background noise level will change as there will be children, autos etc.
Jeff Overton,Acentech(for Jim Barnes who is in Vinalhaven,ME for a special project. Member Ivimey asked if
Jeff can opine,with a reasonable degree of scientific probability based upon his education, experience,training and
analysis, that under ordinary operating conditions,these wind turbines will not increase the ambient sound by
more than 10 dBA at the nearest sensitive receptor. Jeff replied that in his report, Jim Barnes felt comfortable with
these calculations and that these were found under conservative conditions so Jeff believes that Jim Barnes report
agrees with that finding. While Acentech will not go on record as guaranteeing anything, consistent with the
factors that we put into the model,Jim found that things were reasonably assumed, appropriately selected and
modeled and appear to be consistent with the state requirement. The short answer to Ivimey's question is: YES.
Attorney Ingber: They are not trying to hide the fact that under the worst case assumptions,they do exceed the 10
dBA at one point on a property line—they acknowledge that. They are doing two things—they are referring to
extremely conservative assumptions and, they are measuring with precision at the sensitive receptor. In reality,
are they exceeding at the property line—Ingber doesn't think so,but,under the worst case scenarios, they do
exceed.
Larry Chretien, Executive Director of Mass Energy Consumers Alliance of New England: This organization
supports wind turbines believing it the most affordable zero emission source people can adopt. They buy
renewable energy certificates wholesale and bundle them into retail green power product for the growing number
of consumers who want to turn off the fossil fuel spigot and support green domestic, local renewable resources.
They have about 8,000 customers in MA and RI in a program with National Grid and about 1,000 outside the
National Grid territory. Cohasset is a National Grid community with about 40 customers in that count. Customers
sign-up for New England Green Start program and pay $0.024/kw/hr over what National Grid normally charges
for basic service. Mass Energy Consumers Alliance delivers renewable energy to the Grid to meet the quantity of
their customers and transfer the certificates to them so they have proof that the renewable energy made it to the grid
and then report back to the customers. Can start a program in Cohasset so Cohasset residences and businesses can
sign up and use wind power from these towers so consumers can support renewable energy and derive economic
benefits as well. Nothing has been signed with CCI Energy yet,but they are ready to talk with Cohasset.
Dimensional Issue—Attorney Ingber: Section 19.3.3.2.b.I of the bylaw -"in order to assure public safety and to
protect the interest of neighboring property owners,the minimum distance from the base of any wind turbine tower
to any property line in a residential district shall be equal to the total height of the turbine to the highest point"—
this is the lay down area (theoretical toppling of a tower with the rotor at the highest point). The lay down area for
both of the turbines is mostly in a Technology Business District which is where the base of the turbines would be
and which includes the capped Cohasset Heights Landfill. The laydown area to the westerly and southerly
directions includes a small portion of Whitney and Thayer Woods. Whitney and Thayer Woods are an"Open
Space, Conservation and Recreation Resource"owned by the Trustees of Reservations. The Planning Board
minutes of April 29,2009,when the requirements of the bylaw were discussed, state that 19.3.3.2b and a, are not a
residential district. The zoning map describes both Whitney and Thayer Woods as both"Residence C" and as
"State,Municipal and Reservation Area". So,the question is—do you read the bylaw so narrowly and tell the
applicant that Residence C is Residence C and the applicant should seek a variance? Ingber suggests that the
Planning Board, as (SPGA) for wind projects, has the authority and the responsibility to read and interpret the
Planning Board Meeting APPROVED MINUTES 5 of 8
January 6,2010
entire bylaw and to look at not just that one factor but a number of factors to take into account local conditions,
historical data, the purpose and policy of the bylaw language and determine what the bylaw means in this case and
whether the laydown area is really inconsistent with the setback section of the bylaw. In Ingber's opinion,the
reasons the Planning Board found the setback section did not apply last April(2009) still applies—that is—this area
is not residential within the meaning of the bylaw,the purpose of the bylaw or the policy behind the bylaw.
Section 3.2 of the zoning bylaw incorporates the zoning map"with all the explanatory matter thereof' so when the
zoning map indicates that Whitney and Thayer Woods are both"Residence C" and "State,Municipal and
Reservation Area",that is explanatory matter that is incorporated into the bylaw. Knowing that Whitney and
Thayer Woods are"State,Municipal and Reservation Area", why are they designated Residence C? From colonial
times into the 19th century, much of what is now Whitney and Thayer Woods was used for agriculture. By the
beginning of the 20'1i century virtually all of what is now Whitney and Thayer Woods was privately owned but
defacto conservation land. Cohasset adopted zoning in 1957 and created Residence C in 1959. In 1957 most of
Whitney and Thayer Woods was already owned by the Trustees of Reservations and was already committed to
conservation use by the Trustees. In the late 1950's,the zoning law was not very sophisticated or ambitious—if
land was not business district or light industrial, it was"residential" by default. Whitney and Thayer Woods are
now designated as"State,Municipal and Reservation Area"as is Wheelwright Park,the Town Transfer Station, all
the cemeteries in Town, Lily Pond,Aaron River,the schools,the library, Sandy Beach parking lot, Milliken
Field,Beechwood Ball Field. All of these areas are nominally residential,but the zoning map indicates that they
are not in the same category as the residential districts in which we live. That was the same consideration given by
the Planning Board in April(2009)—that the residential property line setback is not applicable here because that is
not what the bylaw is supposed to protect. Planning Board is not alone in this view—it is consistent with the
master plan(not yet adopted) which refers to the area in question as permanently protected. Trustees of
Reservations sent letter to Planning Board, assuring the Board that this land is all conservation land. Cohasset
takes enormous pride in the fact that it has 30%open space. Should we stop saying this because Cohasset is 95%
business, industrial or residential? 95%is both technically true and utterly misleading and utterly inaccurate. The
Trustees of Reservations is unsurpassed in its stewardship of conservation land. They delivered a letter strongly
supporting wind power in general and this project in particular. Under these circumstances, insisting that the
Trustees accept the protective language of the setback provision designed for residences is a little like the well
intentioned boy scout who insists on helping the little old lady cross the street who didn't want to go. Trustees of
Reservations have a special relationship with Cohasset: they were instrumental in the purchase of the Brass Kettle
Brook area to protect Lily Pond; in owning and managing Turkey Hill; and in 1979,the Trustees swapped land with
Cohasset to allow expansion of the Woodside Cemetery. All these factors demonstrate that technically applying
residential protections to Whitney and Thayer Woods goes against the wishes of the Trustees of Reservations and is
inconsistent with the purpose and intent of this bylaw. Planning Board has the ability and obligation as the SPGA
to take that into account and find that the purpose of the setback requirement is to protect actual residential users
and does not apply in this case. In the early presentations of the wind bylaw, it was clear that there were only a
handful of places where the bylaw would allow a"large distributed generation wind project"—the transfer station,
Wheelwright Park,Bear Hill, Turkey Hill—these are all zoned residential and are all State,Municipal and
Reservation areas. Transfer Station would require a laydown area across a residential line and Wheelwright Park
would most certainly require a laydown area, in this case in the Holly Hill Farm(which is technically residential),
but when the bylaw was under consideration,this was not the issue; a turbine on Bear Hill would have to be
squeezed in on the field or it would impinge on actual residences so it was not a serious consideration because the
bylaw was intended to protect actual residences. Proposed location of the two turbines in this filing is about the
most remote location there is in Cohasset. There is ample basis for the Planning Board to look at the language and
purpose of the bylaw,zoning map, history of local conditions, common understanding and reality of the situation
and conclude that Whitney and Thayer Woods designated on the zoning map as"State,Municipal and Reservation
area"is not a residential district within the meaning of Section 19.3.3.2.b.1 of the bylaw. Therefore the Planning
Board was correct in its initial determination that it is not applicable and should continue with that finding.
Ed Pitcavage, Superintendent- Trustees of Reservations: Pitcavage explained that the conversion of any portion of
Whitney and Thayer Woods, specifically including the area near the proposed wind turbines to residential use
would be inconsistent with the history,mission and future plans of the Trustees of Reservations. The Trustees are a
leader in conservation in Massachusetts and also recognize the need for balance in a wide variety of environmental
interests. They also recognize that climate change is the single greatest threat to resources they care for on behalf
of the public. Trustees support this project as an important step to positively impact climate change and because
they do not feel it will significantly impact future plans for this land. Member Brewer asked if there was a Deed
Planning Board Meeting APPROVED MINUTES 6 of 8
January 6,2010
Restriction for this particular area. Pitcavage was not clear on this but indicated they are looking into this.
Attorney Ingber added that some property may be acquired with deed restrictions but that some land may have been
acquired by bequests with restrictions but without actual deed restrictions and that some land may have been
purchased outright and, that the trustees accumulate property, don't sell property or change the land—the land is
perpetually in conservation. The Trustees have a separate entity for property they receive that they might want to
sell, convert to residential etc. Further, in regard to setbacks for properties in affiliate ownerships, Paul Barry will
support the project with no protective interests with regard to the setback.
Member Ivimey asked if there is any case law that would support what he wants the Board to do and that would
eliminate any considerations that the Board should ponder when deliberating on this or, should the Board simply
buy the special permit criteria. Ingber answered that he was not prepared to give case law at this meeting,but when
looking at cases that are on appeal from a SPGA the courts say that there is a certain degree of deference that they
give to a planning board or a zoning board because these boards understand the local conditions better than a judge
might. At some point judge may decide that enough deference has been given and he is now going to apply it. It is
not the sort of thing that has mathematical precision to it.
OPEN TO PUBLIC COMMENT
Attorney Adam Brodsky—retained by number of residents of Sanctuary Pond and Fair Oaks Lane:
• In answer to Member Ivimey's question,there is a construct in which to analyze the issue before the Board—this
hearing was noticed under Section 16, Ch. 40A. Section 16 creates a 2 year ban on the application of projects
which have been denied,however,the Board does have the discretion to reconsider a project if the applicant
demonstrates specific and material changes to the condition of the decision. Brodsky suggests that the Board
look at the 5 grounds for denial and see if the applicant has proposed specific and material changes—only after
that has been satisfied does the Board have the ability and discretion to reconsider its decision.
• Visual characteristics: the applicant has not proposed any changes to the siting, size or number of turbines, or
to any of the buffering setbacks. There are no proposed changes that address shadowing or flicker which is a
specific protective interest in the wind energy bylaw.
• Reimbursement Measures: reimbursement to some but not all of the neighbors to mitigate visual impacts of the
project. Simply cannot screen a 462'wind turbine with plantings,particularly in the winter and, $1,000 does not
provide for that type of screening.
• Sound: None of the studies address the proposed AAER 1.65 MW turbines—they have all been modeled on
smaller. 1.5 MW turbines. Data is available as Town of Dartmouth has just permitted wind turbines using the
same model as proposed here. Why has the applicant not modeled the specific equipment proposed for this
location? DEP requirements mandate that there cannot be an increase greater than 10 dBA at both the property
line and at the nearest receptor. The combination of the exceedances at the property line and the slim margin of
error at the Avalon facility suggest that there is a problem with mode of setback and the applicant has not
satisfied the requirement to show strict compliance with the DEP regulations. Neither the wind energy bylaw
nor the DEP regulations have any provision for the use of noise easements.Noise is still an issue and there has
been no provision that changes that particular parameter of the decision.
• Ice Drop&Throw: Proposal to install software to rotate the nacelle—Langenhagen has submitted documents to
the Board which indicate that the ice throw actually occurs before the software can identify and put on the brake.
Additionally, nacelle cannot be rotated during a storm event which is why the industry suggests safety setbacks.
Applicant has not proposed any specific and material changes which address this particular safety issue.
• Structural Failure& Safety: appropriate way to provide for safety is a setback issue. Section 5.3 of the bylaw
mandates a 30' sideline setback to the nearest property line. The rotors are right on that property line and do not
comply with the 30' setback. Wind turbine#1 clearly does not conform to the setbacks for structures within the
Technology Business District. There is also question with regard to Turbine#2. Section 19.3.3.2.b.1 requires
setback from a residential district equivalent to the total height of the turbine(including blade). In this case,the
turbine is 462'in height so the base of the turbine must be 462' away from the Residence C district. There is no
question that on the zoning map,the property of the Trustees of Reservations is zoned Residence C. The
designation as"State,Municipal and Reservation area"on the zoning map for purposes of town planning
(confirmed this with Building Inspector and Zoning Enforcement Office Robert Egan)—there is no specific
zoning district with respect to"State,Municipal and Reservation area" is on the zoning map or in the bylaws.
Planning Board has no discretion to alter the specific setback requirement in 19.3.3.2. There are things in the
wind energy bylaw that the Board does have the discretion to waive or change—for example, 19.3.3.1 provides
for a maximum height of 350'however,the Board has the ability and discretion to change that under certain
Planning Board Meeting APPROVED MINUTES 7 of 8
January 6,2010
circumstances. There is no corresponding language with respect to setbacks in 19.3.3.2—Brodsky suggests that
the Board does not have any discretion with respect to setbacks and that the applicant has the choice to: relocate
the turbines; seek a variance from the ZBA; or, seek to rezone the property located in Residence C.
Economic Incentives: were not a ground for the denial of this project, are not within the scope of this hearing
and, should not be considered by the Board.
In summary,with respect to the 5 reasons for denial,there have been no specific and material changes proposed by
the applicant and therefore the Board does not have discretion to reconsider.
Town Counsel Saillant: Is of quite differing opinion from Attorney Brodsky with regard to what is and what is not
appropriate in terms of the Board's analysis. The five reasons for denial are not the subject of this remand.
Member Healey Dippold: asked Attorney Brodsky if there was any case law he could cite. Brodsky will provide
additional case law.
Member Ivimey: asked Brodsky to go a little further- assuming the case law does not favor Brodsky's position
and the Board is permitted to exercise discretion and enforcement of this section of the bylaw, is there any
instructive case law to guide the Board as to what criteria the Board should apply when making the determination
whether to exercise discretion and how. Brodsky views as a two-fold process: the first question before the Board is
whether they are going to reconsider this application—the legal standard is straight forward—there must be specific
and material change to each of the conditions of the denial; if the Board decides to reconsider,the Board must
review the project based upon the requirements of the Wind Energy Bylaw as if it is a new application.
Peter Sexton, 118 Forest Ave: PhD Engineer, 25 yrs. exper. in Green Energy. Has no financial interest in this
project. Wind Energy is here. It is economical-pays for itself. Hopes application does not get stymied by NIMBY.
Paul Ognibene, 44 Beach St.: Supports denial of special permit. Believes Cohasset would be better off without this
project being allowed to proceed—consistent with Planning Board decision. Planning Board as SPGA can grant
special permit only if it finds a proposed project complies with the bylaws and is consistent with applicable criteria
for granting special permits. Attorney Brodsky pointed out many reasons why the application is not consistent with
criteria for the special permit. The Planning Board's decision was sound and based on good legal reasoning. The
developer's application does not meet the criteria for the special permit. Planning Board ruled correctly and that
ruling should stand. Ognibene supports wind power but only under the right circumstances. Primary issue is visual
and these turbines will irreparably damage the landscape. Attorney Ingber mentioned that this project was
contemplated when the bylaw was passed—Ognibene and other voters did not know about this project when they
voted for wind bylaw. Had they known,he suspects bylaw would not have been passed. The bylaw has not been
tested before and at least a thousand residents think this project needs to be rethought. Real Estate brokers brag
about open space in Cohasset but,he suspects they will not be bragging about mammoth towers looming overhead.
Sound is an issue—if developers modeled the wrong equipment, does that make the studies meaningless or,if they
model the right equipment where the decibel levels are exceeded, should the Planning Board be hearing the
application in the first place? Setback—it either is or is not compliant or, is there a gray area he is missing?
John Modzelewski, CDI: At the time of this report,there was no specific mention of any of their wind turbine
sound history that could be used, so a generic wind turbine model was used. At that point,the generic turbine
characteristics combined with the conservative numbers enabled the sound engineer to come up with his
conclusions vis-a-vis standard of care. Tonight we have heard of a turbine in Dartmouth—if it is similar and if
there is noise level data on it, it would seem logical that this study should be revisited to make sure the generic data
is consistent with what is being recorded now. Regarding zoning mentioned in April, 2009 meeting, he does not
remember the Board having discussion regarding the zoning not being applicable. At that meeting, Modzelewski
was going through the checklist and when he got to specific setback question,Modzelewski missed the zoning issue
when the towers were moved. He knew the towers were in the Technology Business District but did not realize the
laydown was in the Residence C District. He also noted that there is not a lot of guidance in the bylaw as to how to
measure the turbine—to the base or to the tip when it is in the worst position—if to the tip,you are right on an
interior property line. He can review the calculations,but wants to make sure he is using the correct plan.
Conrad Lan eg nhagen,24 Sanctuary Pond: Taking a practical approach, looking at the facts: sound study does not
have data on the AAER turbines; no data on the blades being used; Dartmouth group has the data and has it on
the web;there is no data on the cut-in speed—Dartmouth group has that data; ambient noise measurements were
not taken with no crickets,no leaves,no wind—they were taken as ambient,real world noise; still has the wrong
absorption—it is a heavily reflective surface. Ultimately, even with all these problems, it still violates the MADEP
guidelines specifically at the property lines—it's all property lines,not just the Avalon property line. The bylaw
quotes the bylaw directly, it doesn't quote speculation. When asked if it can be said with a reasonable certainty that
it does not violate the 10 dBA at the lot line,the developer and everyone universally recognizes the answer to be
Planning Board Meeting APPROVED MINUTES 8 of 8
January 6,2010
"no", it does violate it. This violates all industry setback standards. In making decisions, Langenhagen suggests
not trusting the applicant,not trusting the opponents,but rather,trust the industry experts. He finds it impossible to
ignore the standards and advice of the industry experts in favor of lawyers, developers, abutters and everyone else.
Visual aspects are subjective in the bylaw. The developer has tried to come up with an objective standard by
quoting a single German court ruling and even by that standard,this fails the shadow flicker test. Now there are
two additional setback violations—Langenhagen finds it hard to believe that someone could build a building and
cantilever it over the lot line. There are very specific provisions and protections in this bylaw and this project
violates too many. Planning Board should uphold the provisions of the bylaw the Town voted on.
Jeffrey Patterson, 10 Sanctuary Pond: Two decisions the Board has to make: is this a materially different project
that can qualify as a new project? If the answer is no,that ends the inquiry. If however the is"yes"and you do
have to consider this project again- the language is unambiguous,there is no interpretation—if the regulation is
clear,there is no leeway to look at the history of the property etc. The bylaw has been passed, it is what it is and it
has to be dealt with as it is. In this case,the bylaw does say it has to be setback from residentially zoned districts—
everyone admits the current locations are not far enough back from the residentially zoned districts. The bylaw
language is"shall" -there is no discretion and all of Attorney Ingber's points are inviting the Board to err. If the
Board decides this is a materially different project, it should apply the setback provisions and deny the application.
Town Counsel Saillant: Chapter 40A, Section 16 does not apply to remand procedures. The section 19.3.3.2.b.1
of the bylaw begins with the words "in order to ensure public safety and to protect the interests of neighboring
property owners..." and,that is not superfluous, those words mean something.
Andrew Willard, 37 Stockbridge St., Chair of AEC: spoke as chair of AEC. Mass Energy Collaborative sent
engineers to identify possible locations for turbines. Town was steered towards 3 locations—Turkey Hill,
Wheelwright Park and the Transfer Station.AEC found Turkey Hill to be the most advantageous location but
because it had conservation restrictions,they would have to go to State House to have law passed to allow
construction on Turkey Hill. Wheelwright Park was also conservation land,but Town controlled and,would
require a significant amount of tree clearing. Both of those alternatives seemed outside the spirit of conservation.
Focused attention on Transfer Station. It was a surprise to the AEC to hear that Whitney and Thayer Woods were
zoned residential. Knowing that now,they may have written the bylaw differently. Intent in writing the bylaw was
to protect homes and dwellings where people lived. They did not want residential size turbines in neighborhoods.
Originally looked at conservation land as the primary area to focus building the town owned turbines but the
locations became too arduous so they had to drop those plans.
Lori Langenhagen, 24 Sanctuary Pond Rd. Andrew Willard stated that bylaw was developed to protect residents
and dwellings. It is disturbing that the bylaw focused on residential when right next to these turbines—when this
was considered the best location in town for these turbines—it doesn't protect Avalon which is where residents will
be living even though it is not a residentially zoned area. Bylaw should be consistent in whether it is really
protecting residents or not. Bylaw also says it protects the property owners, so it is protecting the property,not just
the people that might be there.
Attorney In bg er: reminds Board and Public that process they went through the first time around was: first, a vote
on whether to grant a special permit; and, second,to discuss special permit conditions. Several people have
brought up shadow flicker—it was not swept under the rug or ignored—it would be the subject of special permit
conditions. He will look into the date from the Town of Dartmouth and get it to his sound engineer.
Eileen Flaherty, 61 Fair Oaks: This is not ethical issue or issue about doing the right thing or about whether
Cohasset wants Green Energy—this is about how well bylaw has or has not been met-that should remain the focus
MOTION: By Member Ivimey to continue this public hearing to January 20,2010 at 7:30 P.M.
SECOND: Member Brewer
VOTE: 5—0 MOTION CARRIES
MOTION: By Member Ivimey to adjourn at 9:30 P.M.
SECOND: Member Samuelson
VOTE: 5—0 MOTION CARRIES
NEXT REGULAR MEETING: WEDNESDAY, JANUARY 20,2010 AT 6:30 P.M.
MINUTES APPROVED: JEAN HEALEY DIPPOLD, CLERK
DATE: JANUARY 20,2010