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HomeMy WebLinkAboutMinutes - PB - 01/01/2010 - Planning Board Meeting Minutes 2010 (6) Planning Board Meeting APPROVED MINUTES 1 of 6 January 20,2010 COHASSET PLANNING BOARD MINUTES DATE: WEDNESDAY, JANUARY 20,2010 TIME: 6:30 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,Planning Board Administrator Meeting called to order at: 6:35 P.M. 6:35 P.M. 380/400 CJC HWY. (STOP & SHOP PLAZA) SITE PLAN REVIEW- PUBLIC HEARING APPL: COHASSET ASSOCIATES. Filed on December 22,2009 In attendance for applicant: Attorney Charles Humphreys; Jack O'Leary,Merrill Assoc. In attendance for Planning Board: Town Counsel Hucksam. Member Healey Dippold read public hearing advertisement. Jack O'Leary,Merrill Assoc: Site is the Stop& Shop Plaza on CJC Hwy. Bordered: northerly by Sohier St.; easterly by former Cook Estate; southerly by parcel owned by Town of Cohasset; and,westerly by CJC Hwy. (King St.). Stop & Shop exists on southerly end of parcel and a second retail building exists on northerly side of parcel. Main access is signalized at CJC Hwy. There is a second access behind the Stop& Shop. Partially grassed/wooded hill up to the former Cook Estate is on easterly side of parcel. Vegetated wetland area on northerly side also functions as detention basin. Same exists on southerly side. Proposed project is for the construction of a 30,000 SF(300' X 100') third building between the two existing buildings towards the easterly side of the site. Proposed building will be half on existing paved area and half on landscaped area along easterly lot line. Layout utilizes some of the existing parking for the parking for the proposed building. There is proposed fire lane on easterly side and loading zone on northerly side. Plan shows some new parking spaces being created. Parking is complicated—when existing buildings were built, zoning required 1 space/100 sq.ft. of retail so original plans showed a large number of reserved spaces that were not constructed at the time. Bylaw now requires 1 space/200 sq.ft. so the existing parking lot has more than enough spaces for the existing uses. Plans show the number of parking spaces to be lost and the number of new spaces to be created. Plan also shows all the reserved spaces for the record—some of which will be built and some not—plan basically shows a reconfiguration of the reserved spaces that allows the creation of some new spaces. The new building will need a new septic system —there is a septic system that the BOH approved before the building and configuration were decided upon—have spoken with BOH and understand they have to submit new septic plans to BOH. Existing site utilizes wetland areas as detention basins for stormwater. There is a small percent increase of impervious on this site and they have chosen to take care of stormwater by infiltrating into a subsurface system as shown on plans. This design did result in some comments by John Modzelewski. Did receive comments from various boards and committees which they plan to address. Applicant understands they are subject to Stormwater Bylaw,need BOH approval and will have to contact ConComm re: working within wetlands buffer zone. Town meeting article in 2003 moved"HB District"zone line 200' further in the easterly direction—applicant's current plans reflect that change. Septic system is underground in the back area which Member Moore suggests might require some relief from ZBA. Town Counsel will look at this. Member Moore indicated that two buildings were approved when the parking requirement was different than it is now and asked Town Counsel if the applicant can go back and retroactively change the parking requirement at the whole site thereby reopening the original site plan or does the applicant have to reapply for a new site plan for the whole parcel which takes everything into consideration? Town Counsel will look at this to determine if this is a reopening of the former hearings or, a new application. Attorney Humphreys stated that the applicant believes the whole site should be reengineered to current bylaws. Member Moore suggests that applicant gets Stormwater Management Bylaw and ConComm reviews underway sooner rather than later in the process. Attorney Planning Board Meeting APPROVED MINUTES 2of 6 January 20,2010 Humphreys believes there is no point in going before the other reviews without Planning Board approval first. Member Ivimey encouraged applicant to consider renewable energy, solar panels, solar heating. Earl Peterson, 244 King St.: asked if there are plans for a single tenant or for multiple tenants—Attorney Humphreys indicated that it is not likely to be a single tenant—existing building rental spaces are small—the proposed is more likely to be multiple, larger tenants. Captain Trask: From PFD's point of view,this is a unique presentation, in that it is not a single building on a single property but rather previously developed properties in Phases I and 11. He really needs to know what the PFD's review latitude is. Is this part of the whole plaza(looped water mains in the middle of a previously developed property)—what is their latitude in bringing water in from Sohier St. or CJC Hwy or from Red Fox Lane for example when working across previously developed property? This is similar to Member Moore's earlier question. Member Brewer: asked what the status of design drawings is—aspects of the box need to be addressed—suggests applicant get input from the Design Review Board(DRB). Also suggested that row of pines along the rear property line (easterly) is not very artistic—suggests DRB will pick up on this kind of thing. Member Healey Dippold: residential should be well protected MOTION: By Member Ivimey to continue the public hearing to February 17,2010 at 7:30 P.M. SECOND: Member Samuelson VOTE: 5-0 MOTION CARRIES 7:05 P.M. 21 SHELDON ROAD—LARGE HOME REVIEW. APPL: STEVEN J.MEYERS. Filed on December 29,2009. In attendance for applicant: Applicant(Architect) Steven J.Meyers; Owner: Paul Tedeschi. Planning Board Member Ivimey recused self from public hearing. Member Healey Dippold read public hearing advertisement. The application is for the demolition of an existing approx. 4,000 SF single family residential structure and the construction of a new approx. 4,794 sq. ft., 4 bedroom, single family residential structure. Pushing building up against the north edge of the property to fit as much as possible into the existing footprint and expand new structure northward. Also working to maintain view corridor for abutters to south and west. Are currently before ZBA because side lot lines do not conform to zoning requirements. Building will be reduced somewhat due to economics—footprint is in same configuration but reduced in size by approx. 700 sq. ft. Abutters have been met with and have seen plans. Proposed structure is same height as existing and will not be seen from Sandy Beach. Exterior materials will include casement double hung windows,beige/grey shingles,white trim. There are very few trees on the property now and the plan is to only remove trees that are dead. Katherine Richlen, 25 Sheldon Road: asked questions about side setback. Required side setback is 20' and current house is 7.7' from sideline—plan is to push back 3' further from her property at one point and 4' further at another point. Non- conformity will still exist. Although it will be further from lot line, it will also be longer in length. Member Moore suggested that ZBA finish their review and decision so Planning Board has some idea as to how they are going to resolve the setback issue. Dimensions to be added to plans and reviewed at next meeting. MOTION: By Member Samuelson to continue the public hearing to February 3,2010 at 7:15 PM and have applicant provide written extension for decision to February 17,2010. SECOND: Member Brewer VOTE: 4-0 MOTION CARRIES Building Inspector Egan suggests changing the Large Home Review Bylaw for the future such that it would only apply when no zoning relief is being sought,therefore,the applicant would only go before one board,not multiple boards,reducing redundancy for applicant and abutters. 7:30 P.M. ADMINISTRATION • VOTE TO APPROVE JANUARY 6,2010 MEETING MINUTES MOTION: By Member Brewer to approve January 6,2010 minutes SECOND: Member Healey Dippold VOTE: 5—0 MOTION CARRIES 7:35 P.M. CONTINUED 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 Board: Town Counsels Kimberly Saillant, Richard Hucksam; James Barnes,AcenTech. In attendance for Applicant: James Sweeney, CCI Energy; Gordon Deane,Palmer Capital; Charles Eisenberg, Solaya Energy LLC;Attorney Kenneth Ingber. Planning Board Meeting APPROVED MINUTES 3of 6 January 20,2010 Attorney Kenneth Ingber: Reviewed the questions raised by the Planning Board at the last meeting and requested supplementary information as addressed in the three letters he submitted to the Board: 1. Allegation that town of Dartmouth sound study used actual data rather than derived data used in the Cohasset acoustic study: Investigation showed that Dartmouth study did not use actual data although the language of that study implied that it was. Cohasset study was more conservative- Dartmouth study was designed to convey the actual anticipated sound while the Cohasset study emphasized worse than worst case. Dartmouth study started with higher ambient levels and lower nacelle sound level. Tech Environmental concluded that there was nothing in the Dartmouth study that would cause Tech Environmental to change the data, assumptions,methodologies or conclusions in the Cohasset study. 2. Case law supporting the proposition that Planning Board can exercise discretion in applying the bylaw when addressing the lay-down area in the Whitney Woods Residence C issue: If the Planning Board has that discretion it has to exercise it. While appellate court has final say in interpretation of the law, including the zoning bylaw,will defer to the local permit granting board in a wide variety of matters including the bylaw's background,purpose and legislative history, local conditions,the board's reasonable interpretation of its own bylaw and interpretation of local policy as allowed by the Zoning Enabling Act. Therefore it is entirely appropriate for the Planning Board to take into consideration: the very fact that Cohasset adopted the wind bylaw; the valuable information provided by Andrew Willard of the AEC as to the bylaws purpose and understanding, specifically the intention with respect to the CCI project and the Whitney, Thayer Woods; and, the history,understanding and desires of the Trustees of Reservations with respect to the CCI project—the Trustees being the owners of the Whitney and Thayer Woods. 3. Alleged violations of the technology business district setback in section 5 of the zoning bylaw: One turbine may,under very limited conditions, encroach from one piece of property controlled by Mr. Barry onto another piece of property controlled by Mr. Barry—CCI has leased both pieced of property and proposes a turbine on both of the pieces of property. Even with the setback measured from the base of the towers and without regard to the rotors, Section 19 is a special permit section which allows the Planning Board to impose reasonable conditions. CCI wants this to be a good project in the sense that the bylaw actually intends. Planning Board should not shy away from litigation—but where the Planning Board has so much authority and discretion in imposing special permit conditions,if the Planning Board votes to approve this project and grant the special permit,there is considerable work ahead to address all concerns and conditions. To address John Modzelewski's suggestion that coordinates by added to the site plan, Ingber assured that the location used in the Cohasset sound study exactly correspond to the site plan that was previously submitted to the Board, so everyone knows they are all speaking about the same plan. Ingber recited the longitude and latitude coordinates of turbines and sensitive receptors and, suggested that they should not be added to the site plan because they are not absolute coordinates. Ingber submitted them to the Board for the record. Open to public comment: Adam Brodsky,representing abutters: 1. Dartmouth Sound Study appeared to reference actual data for the AAER turbine proposed for this location. In fact the report indicates that results are based upon noise data collected from our study,wind speed data came from UMASS-Dartmouth meteorological tower and the mono noise specifications for the AAER turbines suggest that there appears to be data and the idea was to have CCI plug in what appears to be active date for these turbines into their own analysis so things can be compared on an apple to apple basis. If ultimately the AAER is a quieter machine,that is a good thing for his clients. 2. Remand Issue: Board needs to comply with Ch 40 Section 16 which governs reconsiderations of denials by the Board. Public notices reference Section 16 of the Zoning Act. Judge Piper, in the Remand Decision, instructed the Board to conduct the public hearing, specifically referencing the Zoning Act and Open Meeting Law. To reconsider a project under Section 16,the second application must be specifically and materially different. Brodsky suggests that if the Board takes the five reasons for denial and compares them to the second application, specific and material differences will not be found. 3. With respect to the Technology Business District setback, it is clear in the Table of Area regulations that there must be a 30' setback. Section 19.2 clearly defines"setback". Section 19.3.3.2.a specifically states that each wind energy facility and associate equipment shall comply with the building setback requirements for the zoning district in which the facility is located. Bylaw is not ambiguous—it states the facility and associated equipment shall comply ... it does not say that only the base must comply—the Board does not need to interpret it. Regarding setback to residential district, Section 19.3.3.2.b.1 states that the minimum distance from the any wind turbine tower and any property line in a residential district shall be equal to the total height of the turbine to Planning Board Meeting APPROVED MINUTES 4of 6 January 20,2010 the highest point. The bylaw must be applied—it is unambiguous. CCI has a couple of alternatives: it can relocate the turbines to comply with the setback requirements or, seek a variance. Joseph Rosano,48 Howe Rd. (owner of 226 CJC Hwy,): wanted to know if he is the nearest residential neighbor and why, if he is,he is not on abutters list. Also wanted to know why he was not offered the$1000 in landscape screening that was offered to Rose Hill and Sanctuary Pond Rd. However, CCI Energy told him he would be included in the landscape screening. No Further Public comments: Town Counsel Saillant: not sure if MassDEP Noise Pollution Policy Interpretation was submitted for the public record. In case it was not, she would like to submit it for the record. MOTION: By Member Ivimey to close the public hearing SECOND: Member Brewer VOTE: 5—0 MOTION CARRIES Member Ivimev: asked James Barnes of AcenTech to weigh in as to whether the actual AAER data should have been used in the model as opposed to the comparison data. Barnes requested actual measurements made on the specific AAER model and,to his knowledge,measurements have not been made on that specific model. Dartmouth based its analysis on specifications on that model and,used values up to 104 dBA which is what CCI used. Barnes stated that any change in the numbers would be insignificant. Ivimey added that the study assumes the wind is coming from two directions at all times which cannot happen. Member Moore: Commented that this entire filing has been difficult,that the Board grappled with it and has done the best it could and he thinks they have done a good job. Moore polled the Board for their thoughts at this time. Member Brewer: "RC"district issue has been particularly troubling issue for him to grapple with.Had hoped to see deed restrictions on adjacent properties belonging to the Trustees of Reservations—hoped to see more detail in this particular issue. Brewer researched a little—he found state mapping indicates that area is in conservation restriction in perpetuity and, area around Barry landfill site is substantially wetlands—with a deed restriction so there would be no residential impact—there could be three reasons that Brewer expected the applicant to provide to the Board,rather than have Brewer research that independently. Brewer added that it might make sense to vote for the one rear turbine and not both,although this may be outside the remand order. Member Healey Dippold: shares the concern about the"RC"district issue. It is unfortunate,but it exists. She feels the appropriate way to deal with this is to revise the bylaw to correct issues and to make sure the bylaw appropriately reflects what the Town wants so the Planning Board can appropriately apply it. She would hesitate though to fix the bylaw through this permit. Member Samuelson: Also concerned about the"RC"district issue and had hoped the applicant would provide deed restrictions or something appropriate from the state. AEC admitted this was an oversight when they wrote the bylaw. Was concerned that the Trustees of Reservations did not know what parcels were involved. All this makes Samuelson conflicted—on the one hand,the setback issue may not be show stopper to actual use,but bylaw says it "shall"be applied. Samuelson was satisfied by all other issues—safety,noise etc. Member Ivimev: Also deeply conflicted by the setback issue. Like Samuelson,he is satisfied by all other safety, sound etc. issues have been fixed and,he is satisfied that the bylaw would be met in the ordinary operation of the turbines. He feels there is a limit as to what the applicant can reasonably do to mitigate the visual impact of the turbines do the very nature of what they are. Ivimey felt the ice fall issue has been resolved in a common sense manner by the applicant. However,the"RC"district issue—which the applicant,his engineers,the Board and their consultants all share- is very embarrassing— everyone spent so much time examining the very complex aspects of this application that everyone failed to pick up this basic yet significant application of the bylaw. Bylaw does say that the tower must be"X"number of feet from the lot line and,under 19.3.3.2,the bylaw says that all equipment must comply with the bylaw. As Ivimey understands it,when the blades spin they will cross over the set-back lines —that is not permissible by the bylaw. Ivimey concurs with Member Healey Dippold regarding lay-down—bylaw states that the lay-down area cannot cross a residential district—that portion of the bylaw is clear, it is not ambiguous and,because it is clear,the Board must follow the plain reading of the bylaw—if the turbine were to fall down, it cannot cross a residential property line. It would be a mistake to disregard the plain reading of this bylaw and, it would be a mistake to assume it was mistakenly written. Anyone who does not agree with this, should move to change the bylaw—the Board should not be changing the bylaw in its application. Ivimey feels this is all very unfortunate,he wishes the turbines could be built—there are societal benefits,but under the application of the Town's bylaw,they cannot be built. Ivimey encourages the Planning Board to consider that,if those who drafted the Bylaw for Town Meeting vote gave the discretion to overlook and waive one portion of the bylaw, but did not Planning Board Meeting APPROVED MINUTES 5of 6 January 20,2010 give the discretion to overlook the bylaw elsewhere, it is wise for the Board to recognize that the absence of that discretion is to be honored and complied with. Member Samuelson: believes the way the lay-down portion of the bylaw is currently written with the restriction of the lay-down not crossing residential boundary lines,prohibits construction of turbines anywhere in Cohasset. Samuelson would solicit the AEC to look at this section of the bylaw and consider amending this section to allow these to be built in Cohasset. Member Moore: Planning Board is a quasi-judicial Board that does not get to make subjective decisions—the Board must look at the bylaws and act upon them. Unpopular bylaws put the Board in an uncomfortable position as they try to follow the law. Moore feels that most of the technical issues of noise etc.,have been well addressed and the applicant should be congratulated. Moore feels badly that the"RC"district issue was missed and therefore overlooked placing the Board at an impasse. Town Counsel Saillant: In reference to the submission by Attorney Brodsky in reference to MGL Ch. 40A, Section 16, Town Counsel did not find any case law that particularly defines the remand situation but she believes that Member Ivimey identified the modifications to the original proposal that are subject to this remand and she drew attention to the large public record that exists relative to the remand. To the extent that Ch.40A, Section 16 applies to remand proceedings and, only to that extent, Town Counsel suggests, as pointed out by Members Moore and Ivimey, the issues that led to this remand—outside the issue of the"RC"District—have been material and substantial and have been complied with to the extent possible by the applicant. Member Ivimey: Original decision also included as a basis for denial, that the applicant had not provided sufficient information on the issue of ice throw. While ice throw was not specifically addressed in new materials submitted by the applicant, Ivimey went back through that information to some degree and,he is of the opinion that the denial should not be based upon that. He is satisfied that the safety burden has been met regarding the issue of ice. Town Counsel Saillant: Disagrees with argument made by Attorney Brodsky—the focus of the remand is not focused on the five reasons for the denial—the remand is focused on substantial and material changes primarily focused on the new acoustic information. Member Healey Dippold will not participate in vote as she did not vote in the original decision. MOTION: By Member Brewer to - with the preamble that if there is a positive vote,that conditions as well as mitigation can be made as a separate vote after—conditionally approve the rear turbine that has been proposed,conditionally with the applicant providing sufficient evidence of a deed restriction and other information regarding the Residence C designation. Discussion: Member Samuelson and Member Ivimey are not interested in going down the road of approving only one turbine and, Ivimey noted that the rear turbine still has the issue of lay-down into the"RC"district. Town Counsel asked for clarification as to which turbine-# 1 or#2—is the rear turbine- turbine#2 is the rear turbine. MOTION NOT SECONDED MOTION: By Member Samuelson that the Planning Board conditionally approve the turbines, conditional upon a legally binding instrument that shows that there will never be a residence built in the lay-down area (that binds the Trustees of Reservations from ever building in the lay-down area for the life of the turbines). Discussion: Member Moore feels this is analogous to a homeowner wanting to build too close to his lot line and seeking an OK from his neighbor to do this. Moore feels the applicant should: seek a variance;work to amend the bylaw; or, seek to have the property in questioned rezoned. MOTION NOT SECONDED MOTION: By Member Brewer to continue the hearing to allow the applicant to consider the deliberation Cannot do this—Public hearing has been closed and Judge Piper has imposed deadlines MOTION NOT SECONDED MOTION: By Member Ivimey to deny the special permit because it fails to comply with Sections 19.3.3.2.a and 19.3.3.2.b.1 of the Zoning Bylaws. SECOND: Member Samuelson Discussion-none VOTE: 3 - 1 MOTION DEFEATED (motion was not unanimous as required) Member Ivimey asked Counsel—if you make or second a motion —do you have to vote for it? Town Counsel's understanding is that there has to be a consensus to get the supermajority set forth in the bylaw for a special permit Planning Board Meeting APPROVED MINUTES 6of 6 January 20,2010 and she doesn't know how you do that without voting on it. Ivimey rewords—If he makes a motion to approve this application, can he vote against his own motion? Town Counsel states he can vote however he wishes. MOTION: By Member Ivimey to approve the application with the understanding that moving the motion does not require one to vote in favor of the motion SECOND: Member Samuelson Discussion- Member Ivimey made this motion because it appears the Board is at an impasse and this motion seems to be the only way to bring this to a vote and a termination. Member Moore asks Counsel if motion can be made to approve the turbines conditioned upon the applicant getting a variance from the ZBA for the setback and lay-down zone of the turbines. MOTION: By Member Moore to amend Member Ivimey's motion to approve the application with the condition that the applicant obtain a variance from the ZBA for the setback and lay-down zone of the turbines. SECOND: Member Samuelson VOTE TO AMEND THE MOTION: 3—1 MOTION AS AMENDED: By Member Moore to approve the application with the condition that the applicant obtain a variance from the ZBA for the setback and lay-down zone of the turbines. Discussion: Member Ivimey thinks the proper ordering of things is that the variance is obtained before coming to the Planning Board. Member Samuelson thinks it is pretty straight forward—they either get the variance and continue or they do not get the variance and cannot continue. Ivimey believes it is improper for the Planning Board as the SPGA to make a decision conditioned on something they do not control and don't know if the ZBA will strictly grant up or grant down. Town Counsels opined that this approach of granting an approval based upon a condition that requires obtaining a variance is probably legal but not commonly done. Ivimey also added that approving, also makes a finding that the conditions of the bylaw have been met and he does not think that is proper to issue a special permit that implies the opinion of this body is that the bylaw has been met. MOTION: By Member Moore to withdraw his amended motion SECOND: Member Ivimey VOTE: 4—0 MOTION CARRIES Member Brewer added that there is a bad side to everything. The approval of one turbine allows the applicant to move forward with the project that minimally impacts residential—applicant could get underway while zoning issue is dealt with. Member Samuelson believes the applicant has resolved the issues brought forth by remand. Asks if it is possible to make a motion that the Board acknowledges the fact that, for the narrow purposes of the remand,the applicant has satisfied the conditions of the remand. MOTION: By Member Ivimey to amend his motion to approve the application subject to the imposition of special conditions to be discussed at an upcoming meeting of the Board. SECOND: Member Samuelson Discussion: Member Samuelson noted that the Board knows that approving this is a violation of the zoning bylaw. If approved and the applicant applies for a building permit,the building inspector can say they cannot build it without a variance from the ZBA. Town Counsel Hucksam replied that this is not correct—if the special permit is issued and not appealed—an unappealed special permit becomes like a part of the zoning bylaw. The building inspector cannot say it needs a variance—he cannot make an independent determination that it is different from what the special permit says. VOTE: 1 yes - 3 no MOTION DEFEATED — SPECIAL PERMIT IS DENIED MOTION: By Member Ivimey to adjourn at 9:15 P.M. SECOND: Member Samuelson VOTE: 5—0 MOTION CARRIES NEXT REGULAR MEETING: WEDNESDAY, FEBRUARY 3,2010 AT 7:00 P.M. MINUTES APPROVED: JEAN HEALEY DIPPOLD,CLERK DATE: FEBRUARY 3,2010