Zoning Board of Appeals
Minutes
June 4, 2014
Landuse Meeting Room
Members present: Chair Ethan Berg, (EB); Cliff Snyder, (CS) Robert Fuster Sr., (RF); Robert Fuster Jr. (RFjr); Shawn Leary Considine, (SLC)
Absent with notification: Ned Douglas, (ND)
Staff present: Land Use Clerk Peggy Ammendola, (PA)
Edward N. Peters, Sr., 103 West Street in the R-1A Zone (Map 42 Parcel 4). Special Permit under, or, in the alternative, a Variance from, Section 3.3.3, to permit construction of an addition to the southeast corner of the house.
Presenting the application was Steve Morrison of Morrison’s Home Improvement Specialists who provided photos, survey and a blueprint. Mr. Morrison stated that the original home did not meet the setbacks. The Peters wish to add a four season sunroom and a deck to the back of the house. Mr. Morrison has spoken to the neighbors (identified as Bob and Debbie) who have indicated that they have no objections.
SLC made a motion to grant a Special Permit under Section 3.3.3. RFjr seconded the motion and the Board voted to agree 5-0.
Informal discussion regarding the Zoning Bylaw as it relates to the renewal of permits granted for cell towers, in particular the tower located at the Lenox Fitness Center 90 Pittsfield Rd., Map 22 Parcel 39 and the Decision filed November 17, 2000. Originally scheduled for May 21, 2014.
Present at the meeting was Attorney Daniel Klasnick, of Duval & Klasnick LLC, who represents Crown Atlantic Company LLC, the owner of the tower located at 90 Pittsfield Rd. In advance of this meeting Attorney Klasnick had provided a packet for each member of the Board which consisted of a letter and eleven sections.
The letter gave a history of the tower from the point of the granting of the Special Permit by the ZBA and also included a request that the ZBA reissue and renew the Special Permit under the same terms and conditions as the 2000 special permit, modified in a 2002 Decision. “As Crown will be seeking the same relief as was afforded in the 2000 Special permit, Crown would request that the Board consider waiving a re-filing under Section 6.11- Personal Wireless Service Facilities and Towers and accept the filing previously made by Crown for the 2000 Permit.”
The eleven sections, referred to as “tabs” included the following materials:
As-Built Survey Plan
Notice of Option and Lease
A copy of the 2000 Board of Appeals Decision
A copy of the 2002 Board of Appeals Decision
A copy of the March 26, 2014 Structural Analysis Report
Photographs of Existing Telecommunications Tower
FAA Determination
FCC Registration
Insurance Certificate
Drawing of the Tower Elevation with Designed Loading
Tower of Lenox Application Cover Page for 2000 Filing
Attorney Klasnik explained that as per the zoning bylaw, the Special Permit originally granted was subject to a five year term. At the time of the application, the petitioner sought a waiver to that stipulation, but it was denied. (SLC, having sat on that hearing, believed the waiver was denied due to the fact that the proposal for the tower was controversial.) Recently Crown made an inquiry to the Building Commissioner, Bill Thornton. Mr. Thornton pointed out that the Special Permit had expired and no one had sought a renewal. Mr. Thornton advised Crown to contact the Land Use Clerk to resolve the issue. Through Attorney Klasnik’s contact with the Land Use Clerk via numerous emails and telephone conversations, the ZBA provided questions via the LU Clerk regarding compliance issues with
regards to the zoning bylaw and the Decision rendered by the ZBA in granting the Special Permit. The purpose of this meeting was to address those questions and to reach an understanding on how to proceed.
According to Attorney Klasnik, many jurisdictions don’t make special permits durational, and he said that he doesn’t know if this permit was tracked properly. This tower has been operating during the entire period since the installation and it doesn’t appear that the town had any particular concerns about the tower, its location or operation. Attorney Klasnik said that the packet before the ZBA at this meeting provides the history of permitting and an illustration demonstrating compliance by Crown and Verizon with the standards of each criterion in the decision. He feels the criteria of bylaw is extensive and contemplates the erection of a new tower, not an existing tower.
EB clarified that Attorney Klasnik is asking the ZBA for what the Board needs to be filed with a new petition for a special permit given that this is a pre-existing, functioning cell tower. Attorney Klasnik said that he would be agreeable with whatever the Board is comfortable doing. In the past in matters where a permit has expired in a community, there would be a petition which would be noticed and presented by the applicant.
EB expressed concern that there is a very specific set of requirements from monitoring and evaluation of compliance that should have been done annually over the last 14 years and shared with the public, e.g., radiation, safety of tower. Attorney Klasnick referred to Tab 5 which contains the Structural Analysis Report. With regards to radiation, he said that the Federal Communications Commission has exclusive jurisdiction of these matters. Because the tower is in a control access area and the antennas are so high, and the emissions of electromagnetic radiation at ground level that the public is exposed to is so de minimis that the FCC does not do regular testing,
Attorney Klasnick said that if the Board would like, he can provide an as built and elevation drawing as well as whatever else the Board feels is essential.
SLC and CS said that none of the Board members were engineers, and in matters which are complicated such as this, the Board could hire an engineer at the expense of the applicant.
Discussion ensued and the consensus of the Board was that a new application is necessary and suggested that Crown request a variance again regarding the renewal. Additionally the application should explain why Crown had failed to renew as had been required and provide evidence of conforming to the zoning bylaws. As this would be for an existing tower, some items could be waived. It is important that the tower is up to code and safe.
Approve minutes: April 16, 2014-RF made a motion to approve the minutes and SLC seconded the motion. The Commission voted to approve 5-0.
Other Business: John Vittori, Garden Gables Inn, 135 Main St. spoke to the Building Inspector regarding the addition of a deck and the Building Inspector advised him to consult with the Zoning Board to see if a waiver could be granted. The ZBA advised that Mr. Vittori should file an amendment to his Special Permit as this is an inn which is located in a residential zone.
Respectfully submitted,
Peggy Ammendola
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