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Planning Board Minutes 08/11/2010

P.O. BOX 602
(508) 696-4270


DATE:                   August 11, 2010 

TIME:                           7:04 PM

PLACE:                  Town Hall Annex

ATTENDANCE:             Aldrin, Peak, Seidman, Stephenson and Thompson
                                Goeghan Coogan, Jeff Krystal, and Tristan Israel

BILLS:                  Patricia Harris...................................$879.60
                                Patricia Harris...................................$879.60
                                MV Times …………………………$162.50
MEETING MINUTES:        As referred in the 4 August 2010 Meeting Agenda
                                4 August 2010   Deferred


7:15 PM Tisbury Board of Selectmen – Joint Meeting with the Planning Board

A. Members of the Board of Selectmen voted to enter into session with the Planning Board to address the vacancy on the Planning Board.  3/0/0

Mr. Peak, Planning Board Co-Chairman informed the Board of Selectmen that Mr. Thompson, a member of the Planning Board as an Associate had expressed interest in serving as a full board member. He asked the Planning Board members if there were any objections. There being none, Mr. Aldrin moved to nominate Mr. Thompson. Mr. Stephenson seconded the motion.

Mr. Peak asked the Planning Board and Board of Selectmen if they were in favor of Mr. Thompson’s appointment on the Planning Board.  All three members replied in the affirmative. There being no further discussion, members of the Planning Board and Board of Selectmen voted to appoint Mr. Thompson on the Planning Board.  7/0/0

B. Mr. Peak noted that the Planning Board had revised their initial request for legal services to inquire if the Planning Board could accept a legal opinion on the initial question from the applicant’s attorney. Whereas the Fee Schedule allows the Planning Board to secure a legal opinion from an attorney of their choice, at the applicant’s expense, in this instance the applicant took the initiative to hire an attorney, at his own expense to respond to the question raised by the Condo Association’s unit owners and the Planning Board.

Mr. Krystal and Mr. Israel did not see why the Planning Board could not accept the information, if it resolved the issue. Mr. Peak explained that he wanted to confirm with Town Counsel that by accepting the opinion, the Planning Board was not putting itself in an awkward position, since it was solicited by the applicant, at his own expense.

Mr. Israel did not believe there was an issue. He was of the opinion that if it was ever challenged, it would be an issue for the applicant, not the town. Mr. Peak noted that he wanted to make sure that the applicant was eligible to apply for the permit. He explained that it was the question they wanted Town Counsel to respond to initially, but were denied, because the Selectmen were expecting the MV Commission to address the issue during their review process.

Mr. Peak did not believe they could depend on the MV Commission to address the issue. Mr. Israel noted that the Planning Board could have requested the information from the MV Commission during the proceedings. Had the applicant not secured the opinion, at his own expense, Mr. Peak would have explored that avenue. Mr. Krystal observed that the applicant hired his ‘own’ attorney.  Mr. Seidman indicated that it was the one issue he had with the legal opinion.  Mr. Coogan and Mr. Krystal did not have an issue having Town Counsel review the legal opinion.   Mr. Seidman preferred having Town Counsel review the Master Deed. Mr. Israel did not see why the Planning Board could not communicate to the MV Commission that there was an issue about the applicant’s ability to apply for a permit.  

Additional discussions ensued and Mr. Israel moved to give the Planning Board access to Kopelman and Paige.  Mr. Krystal seconded the motion, which motion carried.  3/0/0

C. Sewer Flow Review Regulations
Mr. Peak inquired if the Board of Selectmen were aware that the DPW were contemplating the revision of the sewer regulations. Mr. Krystal replied in the affirmative. Mr. Peak inquired if the revisions went beyond the DPW’s review process, since they were adopted at town meeting. Mr. Israel replied in the affirmative.

Mr. Krystal explained that they were looking into increasing the flow into the system, as opposed to revising the regulations. Mr. Peak understood that the DPW was interested in eliminating the 250 gallon or 10% restriction allowed for additional flow.  

Mr. Stephenson advised the Board of Selectmen that the increase the DPW has permitted for past applications has raised questions at the MV Commission, who are presently reviewing four applicants with proposals for expansion within a very sensitive area. He did not understand the process and asked the Board of Selectmen if they would explain how flow is allocated.

Mr. Israel explained that they set up a Sewer Flow Review Board to eliminate the politics or perception thereof from the decision making process. It included members of various town boards, and appeared to work well until the Department of Public Works announced that they were not going to permit requests for additional flow. He mentioned that at the time, the Steamship Authority expressed an interest in connecting into the town’s sewer system.  Their decision almost eliminated the need for the Sewer Flow Review Board.

Mr. Israel continued to explain that if the town reached a certain threshold (85%) of the plant’s overall capacity, they were required to aggressively plan for expansion. He noted that there has been established by the Board of Selectmen a Wastewater Advisory Committee to begin that process. The DPW at present is banning any increases in flow. Any and all substantive changes however, need to go before town meeting for a vote. Mr. Israel acknowledged that the Sewer Flow Review Board has made several mistakes in the first couple of years, but have since learned from the experience to prevent the same errors.

Mr. Peak, the Planning Board’s representative to the Sewer Flow Review Board was surprised that the DPW Commissioners did not inform or invite the Sewer Flow Review Board members to the public hearing they’ve scheduled on 8/23/10 to discuss their proposal.

Mr. Israel recommended contacting Mr. Thayer, the Sewer Flow Review Board’s Chairman to call a meeting, so that they can review and discuss the proposed revisions before the hearing.

Mr. Israel, in an aside informed the Planning Board that by state statute the DPW was responsible for the sewer plant’s operations, but that the Board of Selectmen was responsible for the infrastructure, so that any plans for expansion had to be approved by the town through the Board of Selectmen.

Mr. Stephenson inquired if they’ve maxed out the plant’s processing capacity and whether the town had an interest in reserving a certain amount of flow for municipal uses, such as affordable housing, municipal buildings, etc. Mr. Israel replied that the new Sewer Flow Review Board will be addressing the issues.

Mr. Krystal thought the town could benefit from a service fee, if they allowed sewer users to sell their flow and a portion of their betterment fees. Mr. Seidman was concerned that it would impact prospective buyers, who will be purchasing properties with less flow capacities. Mr. Krystal replied that the new property owners have the ability to purchase additional flow, if the town retained a reserve.

Mrs. Loberg wanted to know where such conversation would take place, because they had to define their priorities before they allocated any flow, consider any potential municipal projects/uses, and their impact to the nitrogen levels, which will necessitate the participation of other pertinent boards/commissions

Mr. Israel agreed, noting that it was a subject he wanted the Board of Selectmen to discuss at their next meeting, after it was brought to his attention at a Sewer Review Board meeting.  

D. The County’s bid for heating fuel

Mr. Israel informed the Boards that the County had rejected the lowest bid for heating fuel; because the company did not have the necessary storage capacity to demonstrate that service would not be disrupted in case of a storm.  

The lowest bidder as a result was currently working on obtaining storage capacity in town, which could have an impact on traffic.

There being no further discussion, the Board of Selectmen m/s/c to adjourn their meeting with the Planning Board at 7:30 PM.  Mr. Krystal departed.

7:30 PM Geoghan Coogan Re: Tisbury Marina LLC

Mr. Coogan informed the Planning Board that he had emailed them a copy of a letter to the Building Inspector about the proposed ferry service. He noted that the traffic count the MV Commissioner generated for the restaurant was inaccurate. He noted that for the month of July they served a total of 1400 tables, which equated to a total of 92 cars. The Commission’s statistics lists 228 trips/cars. It was an issue he wanted to bring to the Planning Board’s and MV Commission’s attention tomorrow night.

Mr. Coogan thought it was important for the Planning Board to attend the meeting, and asked if they would consider his request.  Board members discussed it among themselves and Messrs. Peak, Seidman and Stephenson mentioned that they would attend.

7:45 PM                 Mark London Re: Wind Energy Plan
                Peter Cabana, Ned Orleans, Chris Fried, Melinda Loberg

In the first of a series of presentations about Wind Energy to follow, Mr. Mark London, the Executive Director of the Martha’s Vineyard Commission met with the Planning Board for a general report of the Commission’s progress in the development of a Wind Energy Plan for Dukes County.

The presentation began with a rough outline of the proposed methodology that was used to address wind energy related issues both on land and offshore. Mr. London explained that the study began January 2010, and in all likelihood would take about a year to complete. This presented an issue for the towns, because there were certain deadlines that had to be met before then.  

Board members were given three handouts pertaining to the discussions, one of which was the Commission’s newsletter announcing the Commission’s study on wind energy, and the upcoming work sessions that were going to be held to discuss some of the topics currently being researched.  The second and third documents were prepared by the Commission and included information about topics that were studied. One of the documents outlined the issues they had to address in the regulations for an Island Wide DCPC.  Mr. London explained that one of the goals for the study was to have the towns either adopt their own wind energy regulations, or agree to an island wide moratorium on related projects. He advised the board that Vineyard Haven had until the end of the calendar year to complete this objective.

The second goal was to come to a determination about what they believed to be appropriate for the state designated commercial wind energy areas. He explained that the state designated two commercial zones offshore, in which they permitted 100 turbines off Noman’s  shores and 60 turbines of the shores of Cuttyhunk. Of the 160 turbines, 17 were assigned for community use.  The MV Commission in addition was mandated to come up with: A)  a determination about what they believed to be appropriate for the commercially zoned areas, B) a plan for the state waters, and C) criteria to regulate wind turbines as a DRI. The MV Commission was also thinking of revisiting the DRI Checklist to make all proposals for wind turbines a mandatory referral.

Mr. London added that while they did not have “legal control” over wind turbines in the federal waters, he thought it was important to have some consensus over what they would like to see. He wanted to be able to identify the locations where the wind turbines have the least impact on their scenic vistas and view sheds.

Mr. London briefly outlined the salient points of the second pamphlet entitled “Identification of Scenic/Cultural Resources – Draft for Discussion”, and explained that the document was written to give people a sense of the relative scale of the amount of renewable energy that could be generated on land and offshore. He thought it interesting that they would only generate somewhere between 1 to 6 megawatts of capacity  on land compared to 350 megawatts from the Noman’s commercial area, and anywhere from 3000 – 10,000 megawatts in the federal waters.  Based on the data , it appeared that we would need thousands of turbines on land to generate sufficient energy to power ½ of the island’s energy needs.

Mr. Aldrin thought there was sufficient information relative to the noise factor, so that the Commission did not have to duplicate the effort.  Mr. London replied that the information he had read went from one extreme to another, so that it was difficult to know for certain what the actual case was. He and others went on a tour within the cape and found that two out of the three turbines still in operation were on semi-shutdown mode because of the noise factor, even though they were set far back from the residential districts. He’s since learned that four towns in Cape Cod have turned down wind turbines, because they do not trust the government or the commercial entities’ reports and studies.

Mr. Cabana, a member of the MV Commission’s subcommittee on wind energy added that the noise levels were proportional to the size of the unit, so that there was need for concern with the noise levels generated from wind turbines generating a megawatt & half. And while it was not considered to be a large wind turbine, it was of a substantial size on land. The offshore sites on the other hand could easily support the larger units without the same impacts observed on land.

Mr. Peak noted that the blades on the larger turbines rotated much slower. Mr. Cabana noted that the two major complaints with the larger units were both noise and flicker, the latter of which no one had given thought to at all. He mentioned that there were occasions where people had to pull down the shades and turn on the lights, when the flicker into the building was overwhelming. Mr. Peak noted that it may lead them to consider wind farm arrays.  Mr. Cabana agreed. The current data was suggesting that they would do far better if the wind turbines were set in wide open spaces such as farms to avoid the problems with noise and flicker.  Mr. London indicated that that data was leading him to think that they might have to be much more restrictive for land based turbines, and much more positive about having wind turbines off shore in the federal waters.

Mr. Peak noticed fields of wind turbines in the wide open space in his travels, where they each had a red light on the tip. He thought it interesting that the red lights were flashing at random, so that it would have an impact on the island. Mr. Cabana noted that tip of the blade in a 500 megawatt turbine was 600 ft from the base, so that it was very important to delineate the structure with light for aviation purposes.

Mr. Israel was of the impression that it was going to be extremely difficult to do anything of any sizable scale on the Vineyard, so that he was leaning towards offshore installations with regulations. It was his additional impression that they were not going to get inundated with applications for wind turbines in the state waters, because it was far easier and less problematic to secure the necessary permits in the federal waters. He wanted to see the Vineyard and/or Tisbury consider collaborating with the private entities to install wind turbines off the state waters to help defray the costs.

Mr. London mentioned that it appeared Norman’s was going to be the least problematic site for wind turbines at this juncture of the study.  Vineyard Power has indicated to him that the Federal government has pushed out the commercial zones to 12 miles from shore, and allotted the state jurisdiction between 12 and 3 miles from shore, where the community projects would take place.  Vineyard Power recommended locating the community turbines within the 9-12 miles stretch of water so that they could piggyback on the commercial projects.

Mr. Cabana noted that the State agreed on a 50/50 share of the overall royalties with the commercial entities. If they partnered with commercial entities, the towns could realize some of the benefits by generating additional energy above and beyond what they needed, and by negotiating for a share of the revenues. Before they could realize the benefits, they had to decide if they were going to stay on land or go offshore into the federal waters. He believed that they should focus development within the 3 miles off shoreto move forward on the advantages.  

Mr. London was of the opinion that they should start petitioning the state to request 1/3 of the state’s share of the royalties. Mr. Cabana noted that they had to keep in mind that the royalties ran in proportion to the energy generated, so that if they wanted to realize a profit they had to create more than the 50 megawatts they needed to power the Vineyard.

Additional discussions ensued with this regard until Mr. Israel and Mrs. Loberg departed at  8:20 PM. Mr. London continued his presentation on methodology to explain that the aim was to identify particular scenic resources so that they could sort out the most sensitive areas in terms of visual impact. They wanted to protect the neighbors so that it was not overpowering to the abutting residents. And they wanted to look at the view sheds of the most significant vantage points to identify the 15 highly rated sites out of at least 100 locations.

Mr. London referred the Board to the third handout, entitled “Draft DCPC Model Regulations” which was a basic outline of the topics that needed to be addressed by the regulations. He mentioned that the MV Commission enacted the All Island Wind Turbine DCPC at the majority of the towns’ Selectmen and Planning Boards’ request, except for the Town of Edgartown, the Indian Tribal Lands and schools. The island-wide moratorium gave the towns twelve months to adopt a set of regulations for wind turbines on land.  In an effort to assist the towns, the MV Commission developed an outline of the regulations they should consider. The model regulation allows each town to tailor them according to their needs. It concerned him that the deadline for the ocean based regulations and land based regulations was in November and December, accordingly. If the towns waited until the spring to adopt these regulations, there would be a gap in the regulatory protection they needed. He asked the Planning Board if the Town of Tisbury would consider holding a special town meeting to adopt a set of regulations. and if they would be interested in working with the MV Commission to draft a set of regulations.

Board members were informed that the MV Commission was developing a DRI Threshold, but doubted that it would be adopted by the December 2010 deadline because of the administrative red tape. Mr. London therefore thought it would be prudent for the town’s to pursue and adopt regulations that mirrored the DRI threshold.

Mr. London offered sample restrictions the Board could consider. He was thinking that they might consider referring turbines below 150 ft above land to the MV Commission in the more sensitive or critical areas.

Mr. Stephenson inquired if the towns were going to have zoning coordinates where renewable energy facilities are allowed as a matter of right to qualify as a Green Community. Messrs. Cabana and London could not reply.  Mr. Stephenson inquired if the MV Commission could represent the whole island on this subject.  Mr. London indicated that the state has refused to allow the recommendation. Mr. Cabana thought they could capitalize on the situation, if the state allowed them to include the 3 miles from the shore, and to be represented by the MV Commission.

Mr. Stephenson noted wind energy was only one alternative source of energy, and inquired about solar energy.  He thought there was plenty of locations on the island were they could locate solar panels en masse without the impacts of a turbine. Mr. Cabana informed the Board that the county representative has been exploring solar energy on a larger scale, and is looking at the airport as a possible location. Mr. Stephenson inquired if they would qualify as a Green Community if they opted to go with solar energy. Mr. Cabana noted that the town’s had to keep good records on their energy usage, which has been extremely difficult.

Mr. London reiterated that he would like the Planning Board to respond to his questions about utilizing the MV Commission’s draft model, referring land based turbines below 510 ft. in the sensitive areas to the MV Commission as DRIs, adopting the regulations at a special town meeting, given the deadline.

Mr. Stephenson replied that he would prefer having the MV Commission draft the regulations for the island, and thought there was a possibility that the town might be holding a special town meeting in the fall to address other issues. Mr. Stephenson questioned whether the MV Commission would have the regulations drafted in time to solicit the town’s comments before a special town meeting in the fall.

Mr.  Cabana believed that if the island allowed the MV Commission to represent them, and the state allowed their jurisdiction to go out 3 miles from shore they might be able to qualify as a green community.

Additional discussions followed, until Mr. Cabana departed at 8:50 PM. Mr. Orleans followed shortly at 9PM.

B) Federal Grant Program

Mr. London informed the Planning Board that the Federal Government was sponsoring a Regional Planning Grant to fund a sustainability plan or where sustainability plans have been prepared in the past, to achieve some of the goals recommended in the plan relative to smart growth, mixed use, housing, transportation related, etc.  

Mr. London reviewed the grant’s criteria and the Island Plan’s priorities to develop a very rough outline of the scope of work they could consider for the island. He mentioned that the final draft had to be submitted by the end of this week.

In the brief explanation that followed relative to the scope of work, Mr. London indicated that he focused on the top three areas in the Island Plan where there was an interest or potential for development, such as, the:
A)Upper State Road Area/ Connector Road Area/Triangle Wedge Area
B) West Tisbury Business District, and
C) Edgartown Triangle Area.

All three areas presented opportunities for infill development, smart growth, transportation and other areas of interest to the government. He also mentioned that the grant encouraged the partnerships between public and private entities, and thought he should approach the Board of Selectmen, the Planning Board, the Dept. of Public Works, and the Chamber of Commerce. He thought they could form a consortium.

In light of the time constraint, Mr. London informed the Board that he was hoping to obtain an agreement in principal to be a partner in the application for the grant, in the short term, and active participants in the grant, once the government confirms they’ve been awarded a grant.

Mr. London suspected that they had at least four months to work out the details of their proposal, before they receive word of the grant.

There being no further discussion, Mr. Stephenson moved that the Planning Board agrees to become partners with the MV Commission  on the Sustainable Communities Regional Planning Grant Program.  Mr. Aldrin seconded the motion, and the motion carried.  5/0/0
9:23 PM Deliberations (Cont.): Form C Amendment – Jeffrey Robinson, AP
                Attendance: None

Board Members were given a draft copy of the Mr. Robinson’s revised decision for review and comment.

The Board found the revised document acceptable, except for a few minor grammatical corrections.

Mr. Peak entertained a motion to approved the written decision as amended. Mr. Stephenson so moved. Mr. Aldrin seconded the motion, and the motion carried.  3/0/0

There being no further comment, Mr. Peak entertained a motion to close the deliberations. Mr. Stephenson so moved. Mr. Aldrin seconded the motion.  The motion carried 5/0/0

The deliberation was duly closed at 9:27 PM


1.      Zoning Board of Appeals
A.      Special Permit #2019 – Jenick Munafo, AP 23A21
B.      Special Permit #2023 – Eric Johnson, AP 074F21
C.      Special Permit #2025 – Vineyard Playhouse, AP 7G2
D.      Special Permit #2026 – Jilana and Alan Abrams, AP 12B15

2.   Tisbury Conservation Commission
A.      Public Hearing Notice – Lisa Belcastro, AP 12D23
B.      Public Hearing Notice – Chappaquonsett Road, 32A1.1
C.      Order of Conditions: Ralph and Frances Dweck,  AP 13C02

3. MV Commission
RE: 6 August 2010 Extended Schedule

4. Kenneth A. Barwick, Building Inspector
RE: Tisbury Marina LLC - Operation of a scheduled ferry service

Board members were advised that the letter was a copy of the Cease and Desist Order the Building Inspector issued the Tisbury Marina LLC.

Mr. Peak understood the Building Inspector had ceased the ferry service to Falmouth and removed the seat in excess of the permitted occupancy.

Ms. Wild, as the property’s manager was also informed that both uses required a special permit by the Planning Board.

5. Abbe Burt
RE: Bike Route on Skiff Avenue

Board members read the letter into the record of the minutes.

PRO FORM        Meeting opened, conducted and closed in due form at 9:30 P.M.
                        (m/s/c 3/0/0)   
Respectfully submitted;
Patricia V. Harris, Secretary

APPROVAL:       Approved and accepted as official minutes;

______________  _________________________
Date            L. Anthony Peak