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Zoning Board of Appeals Minutes September 11, 2013
Zoning Board of Appeals
Minutes
September 11, 2013

These minutes are not verbatim – they are the secretary’s interpretation of what took place at the meeting – Open Meeting Law – Section III.

Members present:  Peter Conner, David Peck, Michael Main, William Keohan, Edward Conroy, James Simpson, and Mike Leary

Recording Secretary:  Tracey McCarthy

Mr. Conner called the meeting to order and explained the procedures for the evening and that this meeting is a continuation of Case No. 3698.  He further stated that due to the anticipated size of attendance for this case and the lack of space at Town Hall, this meeting moved location to the Nathaniel Morton Elementary School.  

Public Hearing:         Stop & Shop – Case #3698
                        Continued from 4/17/13; 6/19/13; and 8/21/13)  
129-131 Samoset Street
Wind Turbine

Sitting:  Mr. Conner; Mr. Peck; Mr. Keohan; Mr. Main; and Mr. Conroy

The Board received the following documentation* for review of this case:  

  • June 19, 2013 Petition signed by Richard L. Cross and received by ZBA on July 17, 2013
  • August 9, 2013 Letter from Algonquin Heights requesting 6/19/2013 presentations
  • August 8, 2013 Letter from Atty. David Paliotti requesting notes taken of the June 19, 2013 ZBA Meeting
  • August 16, 2013 Email from Dan Therrien RE: Opposing Wind Turbine
  • August 12, 2013 Email response from Tracey McCarthy to Atty. Paliotti RE: copy of notes from June 19, 2013 ZBA meeting
  • August 18, 2013 Letter to ZBA RE: Opposition
  • August 20, 2013 Email from Mr. & Mrs. Vincent X. Lifrieri RE: Opposition
  • August 21, 2013 Letter from Robert Boccaci RE: Opposition
  • August 30, 2013 Email from Atty. Paliotti RE: Fairhaven Wind Neighbors in “Too Close” – Video in opposition (Emailed video to all ZBA Members on 9/3/2013)
  • “Wind Turbine Noise” PPT Presentation from Stephen E. Ambrose
  • September 3, 2013 Email from Atty. Paliotti RE: PPT Presentation from Stephen E. Ambrose
  • Appraisal Review Report – Effective Date of Review is August 12, 2013
  • June 19, 2013 McCann Appraisal, LLC entitled “Stop and Shop Turbine Property Value Impact & Zoning Compliance Evaluation”
  • September 9, 2013 Opposition Email from Pamela Anelli
  • September 9, 2013 Opposition Email from Jim Pierce
  • September 9, 2013 In-Favor Email from Michael Sullivan
  • September 9, 2013 Opposition Email from Dave Donley
  • September 11, 2013 Opposition Email from Lauren Durfee
  • September 11, 2013 - Meeting handout from Ed Angley
  • September 11, 2013 – Meeting handout S.G. DeCastro Appraisal & Consulting, Inc.
  • September 11, 2013 Meeting handout from Kerry Kearney RE: 4 Buttermilk Way
  • September 11, 2013 Meeting handout from Kerry Kearney RE: 7 Buttermilk Way
  • September 11, 2013 Meeting handout from Arthur Bosen
  • September 11, 2013 Meeting handout from Christine Hurley – No. Triangle Dr.
  • September 11,2013 Meeting handout from Liz Argo
  • September 11, 2013 Meeting handout from Kerry Kearney RE: Tech Environmental Comments on the DEP … Test Method for Kingston Wind
  • September 11, 2013 Meeting handout from Kerry Kearney RE: MassDEP       Discussion Document: WNTAG Meeting
  • September 11, 2013 – 1000+ Signed Petitions, in favor, received at meeting
  • September 11, 2013 – Revised Supplement to Objection of Algonquin Heights received from Atty. Paliotti at meeting
Mr. Conner did a re-cap of the last meeting that was held on August 21, 2013.  He also expressed that the meeting is still an open meeting which means there will be an opportunity for residents or anyone else to speak regarding this case.  

Mr. Main stated that some information was just received at tonight’s meeting; therefore, the Board Members have not had an opportunity to review the documents.  Mr. Conner further explained the standard submittal process that the Board receives case documents a week prior to the hearing.  

Atty. Edward Angley, representing the proponent, made an opening remark that he has one rebuttal witness, Steve DiCastro, Appraiser, and then he will have a final summation.  

Atty. David Paliotti, representing Algonquin Heights, stated he has a few remarks prior to his introducing Mr. Stephen Ambrose.  Atty. Paliotti expressed that this is not an issue of whether or not we are for or against turbines; the issue is really whether this is an appropriate site.  Atty. Paliotti stated the applicant is Stop & Shop and reviewed the chain of ownership and chain of leases on the property.  This was to outline a potential issue as to whether or not Stop & Shop will have the authority to maintain the turbine.  

Atty. Paliotti stated this proposal doesn’t meet the requirements or intent of the Zoning By-law.  There is no clear and specific public benefit.  There has been no Engineering study presented to the Board that 276’ is the minimum height necessary.  He further expressed that Stop & Shop has failed to demonstrate that the turbine would not detract from the visual character or quality of the adjacent properties or the Town as a whole.  He believes this turbine will create quite a traffic distraction as you are exiting off the Rte. 3 ramp.  Stop & Shop cannot meet the burden which states there will be no nuisance or adverse effect upon the neighborhood.  He further believes should the brakes on that turbine fail there may be a catastrophic effect which the blades could end up on top of Algonquin Heights, Stop & Shop, or on the main road.  Atty. Paliotti expressed that this just simply is not an appropriate place because it is too densely populated for such a large turbine.  

The position of Stop & Shop’s proposed wind turbine will not meet the noise requirements in the Plymouth By-law; and, will not meet the noise requirement of the DEP.  Furthermore, the Algonquin property line is 500’ from wind the proposed turbine is Algonquin Heights.

Atty. Paliotti stated that additionally as testified by Michael McCann this will create a decrease in property value to Algonquin Heights and other surrounding neighbors.  

Atty. Paliotti stated that the By-law requires that Stop & Shop operate at a capacity factor in excess of 25% and at the last hearing Stop & Shop offered to only run the turbine during day time hours not night time hours.  Atty. Paliotti said that’s only a 50% reduction in the amount of time that they are proposing to run the wind turbine.  Additionally, there has been no Engineering study presented to the Board that would show by doing this Stop & Shop would meet the capacity factor of being over 25%.  Atty. Paliotti further stated that Stop & Shop stated they represented to the Board that the turbine will meet 70% of their electricity needs.  However, no study has been done to show what % of its needs will be met if not running during the night time.  

Atty. Paliotti also stated that to his knowledge, the Plymouth Design Review Board has not made any recommendations to the ZBA.

Atty. Paliotti further stated that the proposed turbine is 8.5x’s taller than that allowed by the By-laws.  The turbine will have adverse health affects; will detract from the area; will not be in harmony with the area; and will be a nuisance – this all opposes what the By-law requires.  

Mr. Stephen E. Ambrose, INCE Bd. Cert. spoke on behalf of Algonquin Heights.  He presented a series of 47 slides all addressing “Wind Turbine Noise.”  

Public Comment in Opposition:  Mike Ercolini, on behalf of concerned property owners of Algonquin Heights; Everett Malaguti, Town Representative for Plymouth; Edward and Sue Hobart; Kerry Kearney, Member of Plymouth Energy Committee; Lee Burns; and Margaret Burke.

Public Comment in Favor:  Zoey McGregor spoke and then additionally provided a letter of support from Liz Argo.  Joyce Norman; Attorney Ted Bosen; Troy Wentworth; Kevin O’Reilly; Arthur Bosen;  Ryan Grimm; Frederick Ryan; Jason Boey; Christina Hurley; and Steve DeCastro.

Public Comment Neither for nor Against:  Conni DiLego

Mr. Conner closed public comment.  

Atty. Angley distributed the synopsis that Steve De Castro would be presenting.  Mr. De Castro read verbatim his 5 page synopsis about the benefits of wind turbines.   

Atty. Angley briefly spoke about DEP’s findings.  Doug Sheadel, Modeling Specialties, spoke about the DEP report.  He explained advantage of Stop & Shop shutting down between the hours of 1a.m. and 3a.m.  He also referred to his acoustic study dated August 8, 2013.  Additionally, he spoke about different methods he would use to determine frequency from the turbine and what the standards are in the industry.

Board Members Mr. Keohan; Mr. Main; Mr. Simpson; and Mr. Leary asked questions all relating to the noise study and noise impacts, Shop & Shop shutdown of turbines, shadow flicker, and the speed in comparison to height difference.  To which, Rich Tabaczynski of Atlantic Design Engineers, Atty. Angley, and Doug Sheadel all responded.  

Mr. Conner then spoke and noted that the Board also recently received 5 emails - 4 in opposition and 1 in favor.

Hearing is closed.  

Board Members:  Edward Conroy; David Peck; William Keohan; Michael Main; and Peter Conner

Edward Conroy stated that Stop & Shop submitted the petition for a wind turbine.  The By-law states “clear and specific public benefit.”  Mr. Conroy believes the benefit will reside with Stop & Shop; and, does not believe that Stop & Shop has met the burden that the turbine will benefit any other party.  With relation to visual character – this Town is historic and he does not see how this will fit in given that.  Mr. Conroy felt that the turbine would detract from the visual character of the historic Town of Plymouth.  

David Peck stated that there have been qualified experts speaking about sound impacts associated with noise and shadow flicker and real estate values.  He believes there are health issues.  He was not convinced that the benefits to Stop & Shop would be as great as predicted.  
Mr. Peck did not agree with Stop & Shop’s statement that their only option is a medium sized wind turbine.  He believes distance matters; and, that 600’ is far too close to the residential units.  He does not believe this is a peaceful alternative.  He is not clear there is a clear and specific benefit.  In addition, he believes it detracts from visual character.  

William Keohan believed that Stop & Shop met the conditions in the By-law based on past approved wind turbine permits in the Town of Plymouth.  He believed distance was a concern; however, the By-law was met.  He believed issues pertaining to sound have been addressed.  The area being in close proximity to a major highway, interchange would not increase the sound and if it did, the petitioner proposed to shut down the turbine.  He also believed flicker in this particular case is not an issue because the residential property would not experience said flicker.  He also believes the infrastructure is adequate due to the fact that this is a high commercial area that the residential complex is surrounded by; whereas, it was not unusual to find power lines, water tanks, and cell and radio towers within close proximity to Algonquin Heights.  
Therefore, he did not see the turbine greatly changing the current condition.  He feels comfortable that the petitioner has met the requirements according to the By-law.  
Michael Main stated that his biggest concern is the decrease in a homeowner’s property value.  Another concern in this case is the proximity to residential spaces.  Mr. Main believes it comes down to is there a clear and specific public benefit, he does not believe there is.  
Peter Conner stated the proximity of the wind turbine to the residential units is close; however, he does not believe the noise of the turbine is going to add to the already existing noise of the commercial property surrounding the apartment complex.  He also does not believe that it has been proven that the turbine will effectively decrease property value.  He believes this is Stop & Shop’s property and they reserve the right to install the turbine and to effectively benefit their operation in hopes of reducing their expenses.  

Mr. Main motioned to approve Case No. 3698 with conditions recommended by the Planning Board report of June 11.  Mr. Keohan seconded.  The vote was 2 in favor (Mr. Keohan & Mr. Conner) and 3 in opposition (Mr. Conroy, Mr. Main, and Mr. Peck).  The motion did not pass.  

Mr. Main motioned to adjourn the meeting.  Mr. Keohan seconded.  Agreed unanimously (5-0)

Respectfully Submitted
Tracey McCarthy
Administrative Secretary

Approved:  October 2, 2013

*On file with the Zoning Board of Appeals in project case files.