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Zoning Board of Appeals Minutes 08/14/08
Hudson Board of Appeals
Town Hall
Hudson, Massachusetts 01749

Minutes of Meeting – August 14, 2008            page 1
Minutes of Meeting— August 14, 2008
The Hudson Board of Appeals met in the Selectmen’s Hearing Room, Town Hall, Hudson, Massachusetts.  At 7:30 p.m., Chairman Lawrence Norris called the meeting to order.
Present:        Lawrence Norris, Joe Peznola, Darja Nevits, Dorothy Risser, Christopher Tibbals, Todd Pietrasiak, James Smith, Jennifer Burke, Town Planner and Teresa Vickery, Clerk.
Petition 2008-04, 43 Broad Street, Special Permit

The Board is in receipt of a letter from Andy Candiello from Metro PCS Massachusetts requesting a continuance until the next meeting.

Dorothy Risser, seconded by James Smith, made a motion to continue the public hearing for Petition 2008-04 until September 11, 2008 at 7:30 PM.

Vote: 6-0-0, Unanimous
Petition 2008-05, 5 Coolidge Street, Special Permit
Present was:    Paul Giannetti, Atty. at Law
                Richard Casselli
                James Ferrechia

Lawrence Norris convened the public hearing.

Dorothy Risser read the Right of Appeal.

Atty. Giannetti explained that the applicant is seeking a special permit under section of the zoning by-laws to allow the repair and painting of motor vehicles in an M-1 Industrial District.  The property, is 31,505 square feet and is presently occupied by Casselli Trucking.  The garage consists of three service bays which will be used to repair trucks not owned by Casselli.  

A fence will be erected to screen in the stored vehicles as shown on the plans.  The traffic volume will not be effected.  The applicant provided the Board with information regarding how the spray booth operates and the protection that it grants.  The painting will be limited to only two service bays and all work will take place inside of the building.

Mr. Peznola asked which service bays is the applicant referring to.  Atty. Giannetti stated that they are referring to the bays on the westerly portion of the building.  

The underground tanks will be pumped frequently in order to eliminate pollution to the ground water.  The four existing tanks that drain into the leeching fields will be eliminated.  

Mr. Norris stated that he would prefer the fencing be installed at a height of 7-feet.  Mr. Casselli agreed to this condition.     

James Smith, seconded by Dorothy Risser, made a motion to go into deliberative session.

Vote: 5-0-0, Unanimous (Darja Nevits not voting; Joseph Peznola & Sara LaFleur not present)

Ms. Risser stated that it is important that the areas where painting is to take place needs to be clearly defined.  

Lawrence Norris, seconded by Dorothy Risser, moved to approve Petition 2008-05 and to grant a Special Permit under Section, to allow the repair and painting  of motor vehicles within 1800 square feet ± in the northeast corner of the building as shown on the plan entitled “Site Plan of Land in Hudson, MA” as drawn by Thomas Land Surveyors & Engineering Consultants of Hudson, MA dated July 16, 2008, based on the following findings:

The Petitioner has standing to bring the Petition, and;

The subject property is located in the M-1 Industrial District, and;

The use will not have an adverse effect on present and future dwellings in the vicinity, and;

The use will not create traffic hazards or volume greater than the capacity of the streets affected.

And with the following condition:

Three (3) reserved parking spaces will be enclosed by a 7-foot sight screened fence in the northwest corner of the property.

Vote: 5-0-0, Unanimous (Darja Nevits not voting; Joseph Peznola & Sara LaFleur not present)

James Smith, seconded by Dorothy Risser, made a motion to come out of deliberative session.

Vote: 5-0-0, Unanimous (Darja Nevits not voting; Joseph Peznola & Sara LaFleur not present)

Petition 2008-06, Saratoga Drive, Special Permit & Variance
Present was:    Brian Grossman, Atty. at Law
                Sameer Parakkavetty, Omnipoint Communications, RF Engineer

Lawrence Norris convened the public hearing.

Dorothy Risser read the Right of Appeal.

Mr. Norris stated that he did not have the approved site plans on hand and would bring them to the next meeting.

Mr. Norris referenced a 5-page letter dated August 11, 2008 from Mark Calvanese in opposition to the erection of the tower.  In his letter, he cited that the fall zone clearly does not meet the zoning requirements.  His other concerns were with respect to property values and safety issues.  Atty. Grossman responded to the letter stating that the facility will comply with all FCC Regulations.

Atty. Grossman addressed the Board.  He began by referring to a memo dated March 10, 2008 from David Casey of Valmont Structures.  Valmont Structures is the company that designs and manufactures the monopole tower.  The design of the tower is addressed in the memo as well as why it is appropriate for the applicant to seek a waiver for the fall zone despite the provisions of the by-law.  

The applicant is seeking to erect a 100-foot flag style monopole cell tower, which will taper off from a 40-foot radius at its base to a diameter of 36 inches at the top.  Omnipoint prefers to locate all the equipment within the pole so it is not visible from the outside.  They feel this makes the pole more esthetically tolerable.  An 8-foot high wooden stockade fence will be erected to minimize the visual impact of the tower at the ground level.  The existing vegetation at the site will be preserved.  The maintenance of the tower would occur 1- 2 times per month.    

Atty. Grossman explained that the crumple point design of the tower was reliable and safe.  The locked battery cabinets are weather and vandal resistant and are constructed with heavy-duty steel.  

Mr. Norris asked if there are currently any towers on that land.  Ms. Burke informed him that there are not, however there is a water tower located there.  Mr. Norris then asked why the applicant is seeking to locate outside of the confines of the fenced in area of the water tower.  Ms. Burke explained that Tony Marques was concerned that they may not be sufficient space for DPW trucks to maneuver around.  Mr. Norris asked for Ms. Burke to double check this.  He also asked that the applicant locate the underground utilities on the plans.

Atty. Grossman informed the Board that the applicant will keep the impermeable surface as is in order to minimize any additional runoff at the site.  

Mr. Peznola asked why the tower cannot be located 100 feet from the property line.  Atty. Grossman explained that this location was preferred by both parties.  Mr. Peznola asked whether this was due to coverage issues and stated he would like the applicant to return with some definitive answers and/or rationale for the proposed location.

Mr. Peznola asked to see a map showing the coverage area in relation to both of the facilities working cooperatively.  Atty. Grossman agreed to provide that to the Board.

Ms. Risser asked what the frontage set back was.  Atty. Grossman stated that it is 53 feet.  Ms. Risser went on to explained that in 1970 the by-law was changed.  If the set back was carved out before 1970, the pre-existing non-conforming rule may apply, therefore eliminating the need for a variance.  Atty. Grossman said he would check on this.

Mr. Peznola asked if the affidavit provided in the petition was from a structural engineer.  He would like confirmation.

Donald Coletti, 11 Champlain Drive asked who would be liable in the event that the pole fails.  Atty. Grossman stated that he would not want to predetermine libaility.  Mr. Norris stated that the liability is usually that of the lessee, however, that would not be determined until the final decisions are made.  

Andy Massa, 15 Michigan Drive asked for clarification on the diameter of the top of the tower.  He then referred to a statement made by Tony Marques regarding the location of the tower and not wanting it on the water tank.  Mr. Massa did not think that not being able to put up staging around the tower to be a good enough reason to disallow this.  

Mr. Massa explained that erecting the tower would be of little benefit to the residents of the area and would only really benefit the commuters on Route 62.  He noted that the abutter’s property values will decrease if tower is installed.

Mr. Massa then noted for the record that the non-conforming state of the fall zone would bring undue liability to the Town if the tower were to fail.  

Mark Calvanese, 8 Champlain Drive questioned Valmont’s calculations.  Atty. Grossman explained how the wind speeds are calculated depending on the history of the site.  Mr. Calvanese then asked if the area had been professionally surveyed.  Mr. Norris answered that should have been part of the site plan review process.  Ms. Burke stated that the survey information is on page C-1 of the packet.  

Mr. Calvanese then asked what type of batteries and ventilation are used.  Atty. Grossman informed him that the batteries are ferric acid and the ventilation is a self-regulated system. Mr. Calvanese asked if the applicant could provide a management analysis for the battery thermal failure.  

Judith Saborin, 14 Michigan Drive asked why should a variance be granted for the fall zone if the reason the fall zone was established was for safety purposes.  Mr. Norris explained that the minimum area for the fall zone is equal to twice the length times width of the tower.  

Dennis Rowley, 24 Champlain Drive asked if the tower would be lit on the top in order to be seen by airplanes.  Mr. Norris has not yet seen the approved site plans and this would be addressed on that set of plans.  

Edward Paglicua, 48 Ontario Drive asked if the vegetation surrounding the site would be disturbed.  Mr. Norris explained that the applicant must keep the damage to the existing vegetation to a minimum.  

Mr. Peznola requested that a radio frequency study be performed of the tower showing it at a height equal to the set back requirements as well as what the implications of this would be.  

Lawrence Norris, seconded by James Smith, made a motion to continue the public hearing for Petition 2008-06, Saratoga Drive until September 11, 2008 at 7:30PM.

Vote:  7-0-0, Unanimous

Petition 2008-07, Crestview Drive, Special Permit
Present was:    Brian Grossman, Atty. at Law
                Sameer Parakkavetty, Omnipoint Communications, RF Engineer

Lawrence Norris convened the public hearing.

Dorothy Risser read the Right of Appeal.

Mr.Norris asked the petitioner to begin the presentation with the understanding that because he did not havethe approved set of site plans the public hearing would need to be continued.

Atty. Grossman addressed the Board.  He explained that the petitioner is seeking a special permit under section 5.9 of the zoning by-laws to install a wireless telecommunications facility in an SA-5 Single Family District.

Atty. Grossman explained that this is a companion site to Saratoga and they would work together to cover the gap in coverage.  The existing tower is being utilized by three carriers.  The applicant is proposing a 100-foot flag pole style monopole with internal antennas.  The tower includes the same cabinets as the Saratoga site with the same GPS and 911 enhanced lines.  

This site does not need a variance because it meets the fall zone requirements.  There is a 6-foot high chain link fence currently on the site, which eliminates the need for fencing.  

Atty. Grossman referred to the technical memorandum from Valmont and explained that it pertained to both sites.  He then entered into the record a technical memorandum from Radio Frequency Engineer Sameer Parakkavetty dated December 18, 2007 to the Planning Board concerning the power density.  It is on file in the Planning Director’s Office in Town Hall.  

Mr. Petriasiak asked what the distance is to the nearest property line.  Atty. Grossman stated that it is 30 feet.  Ms. Risser noted that it is the same distance as the Saratoga site.  

Mr. Peznola asked why not locate the tower within 100 feet of the property line.  Atty. Grossman said he would investigate whether the site could be designed differently in order to conform with the set back requirements.  

Mr. Peznola asked if interference between the towers would be an issue.  Mr. Parakkevetty explained that the closer the towers are the more interference and obstruction to one another, however this would not be a concern.  

Bill Wade, 6 Crestview Drive stated that he believes that there are only two antennas on the existing tower and there is room for three.  He also addressed the issue of the fall zone, citing that it is not sufficient.  

The applicant is proposing the erection of a new tower due to a significant gap in coverage.  Mr. Wade would like the Board to investigate what constitutes a significant gap.

Atty. Grossman explained that the Telecommunications Act promotes competition.  He noted that Omnipoint is entitled to cover the gap with the only feasible plan in order to provide adequate coverage for their services.  

Mr. Peznola asked at what height is the available space located on the tower.  Atty. Grossman informed him that it is at a height of 70-80 feet.   Mr. Peznola then requested that a radio frequency study be conducted with the antenna at a height of 70-80 feet.

Ms. Nevits requested that the applicant have the crumple zone studies conducted by an independent consultant.

Lawrence Norris, seconded by Dorothy Risser, made a motion to continue the public hearing for Petition 2008-07, Crestview Drive to September 11, 2008 at 7:30 PM.

Vote:  7-0-0, Unanimous
Petition 2008-03, 248-250 Main Street, Deliberative Session

Lawrence Norris, seconded by James Smith, made a motion to go into deliberative session.

Vote: 6-0-0

Mr. Norris began the deliberative session by giving a brief synopsis of the previous proceedings and explaining what the Board wishes to accomplish through the deliberative session.  The Boards main objective is to make a decision with a clear path as to how and why the Board voted the way it did.  Mr. Norris suggested that the Board look at the original permit in order to help in making their decision.  

Mr. Petriasiak stated that he was concerned with the report conducted by Avery Associates.  He was unclear as to what the basis of applicant referring to the project as ‘uneconomical’.   He went on to say that the CBRE Report did not clarify the economics of the project enough to come to a clear conclusion.  Mr. Petriasiak also asked what the margin of error was, citing that a 2% margin of error could potentially make the uneoncomicabilty of the project null and void.  He then suggested that by eliminating the marketing costs the petitioner could potentially eliminate their significant economic loss.  

Mr. Peznola explained the uneconomicability of the project regarding 40B.  He then said if the economic test conducted was based on all 11 months.

Ms. Risser stated that the condition was a government proposed condition and was not imposed by the Board.  The developers condition was self-imposed due to the implementation of the age restriction.  She also stated that she is not convinced that the age restriction has anything to do with the inability of the units to sell.  Mr. Smith agreed with Ms. Risser and does not believe that the buyers should suffer because of the developers inability to sell the units.  

Mr. Tibbals does not believe that by lifting the age restriction the developers would be guaranteed sales.  

Mr. Peznola explained that the fundamental presumption of the HAC is that the need for affordable housing would supersede the local concern.  He went on to list the six choices he thinks are available to the Board.
Approve with no discussion.
Approve with specific conditions in order to mitigate the adverse impact to the residents.  
Deny the change and refute the uneconomicability.
Deny the change due to the impairment of local concerns.
Deny the change because they already have the ability to sell 10% without restriction.
Deny the change with no discussion.

Mr. Peznola stated that he does not agree with this petition at all and finds it to be a travesty.  His option would be to approve it with specific conditions and find a middle ground.  He stated that the Board need to work on making a defensible decision.  

Mr. Peznola suggested that the Board request the assistance of a Special Counsel.  

Mr. Norris asked that Mr. Petrisiak research the economics of the project and report back to the Board at it’s next meeting.  He then asked that Mr. Peznola look into the legal issues and findings and that he would look into finding a Special Counsel.  

Lawrence Norris, seconded by Dorothy Risser, made a motion to continue the deliberative session for Petition 2008-03 until September 4, 2008 at 7:30 PM.

Vote: 6-0-0, Unanimous


At 11:00 p.m., Joe Peznola, seconded by Lawrence Norris, moved to adjourn.

Vote: 7-0-0, Unanimous