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Planning Board Minutes 03/16/2011

P.O. BOX 602
(508) 696-4270
Fax (508) 696-7341


DATE:                   March 16, 2011  

TIME:                           7:15 PM

ATTENDANCE:             Aldrin, Peak, Stephenson and Thompson
                                John Bugbee, Town Administrator; Seth Pickering, DOER

PLACE:                  Tisbury Senior Center, 34 Pine Tree Road


7:00 PM Public Hearing: A proposal to adopt Section 05.21.05 in the Tisbury Zoning Bylaw to promote and regulate large-scale ground-mounted solar photovoltaic installations in                 Business District II
                Attendance: Refer to Signature Sheet

7:05 PM         Public Hearing: A proposal to amend Section 02.00 of the Tisbury Zoning Bylaw to add definitions for As-of-Right Siting, large-scale ground-mounted solar photovoltaic          installations, on-site photovoltaic installation, rated nameplate capacity, solar photovoltaic array, research and development facilities, and place for manufacturing,                         assembling, or packaging of goods
                Attendance: Refer to Signature Sheet

7:10 PM Discussion: A proposal to amend the Building Code Bylaw by adding thereto Chapter 98 entitled Stretch Energy Code for the purpose of regulating the design and                  construction of buildings for the effective use of energy pursuant to Appendix 120 AA of the Massachusetts Building Code, 780 CMR
                Attendance: Refer to Signature Sheet

Mr. Peak, Planning Board Co-Chairman opened the meeting explaining that the two zoning bylaw amendments were being presented in conjunction with the Stretch Energy Code because they were two interrelated elements of the five requirements, local communities had to pursue in order to qualify as a Green Community.  The Planning Board and Board of Selectmen were working jointly on this project, in anticipation that the Town of Tisbury would achieve the status of a Green Community in the near future.

He therefore recommended combining the discussions, and opened the public hearings and presentation at 7:15 PM. Mr. Peak read the public hearing notices into the record of the minutes, and introduced the board members.  Members of the general public were advised to refer to the handouts they were given listing the proposed definitions, the bylaw permitting the solar photovoltaic installations in Business District II, and the Stretch Energy Code.

Mr. Peak introduced John Bugbee, the Town Administrator and invited him to make the opening comments. Mr. Bugbee noted that the Board of Selectmen decided to pursue the town’s designation as a Green Community approximately 8 months ago, and learned that they had to meet set criteria to qualify as a Green Community, starting with the adoption of the “Stretch Energy Code”.  In addition to the “Stretch Energy Code”, the town had to adopt zoning regulations permitting alternative power generators, for which the state developed model language. Mr. Bugbee invited Mr. Seth Pickering, the regional coordinator of the Department of Energy Resources’ Green Community Division in the Southeastern Region to explain the state’s Green Community Act, and the” Stretch Energy Code”.

Mr. Peak invited Mr. Pickering to come forward, and to present the power point presentation he developed to explain the “Stretch Energy Code”. Mr. Seth explained that the Governor signed the Green Community Act in 2009 to improve the state’s ability to meet the targets of the Global Warming Solutions Act of 2008. It is intended to promote energy efficiency, the development of renewable energy resources, stimulate innovative technology, help reduce consumers’ electrical bills and create a new greener building code. This led to the development of the “Stretch Energy Code” or “the energy portion of the building code” The new code basically constitutes building requirements that are above 50% more efficient than the base code in its current form.

Mr. Pickering explained that communities can qualify as “Green Communities” if they  meet five different qualification criteria, such “As-of-right Siting”, an expedited permitting process, the town’s establishment of an energy baseline, a five year plan reducing energy use by 20%, the adoption of town policy to purchase fuel efficient vehicles, and the adoption of the “Stretch Energy Code”.

For tonight’s presentation, Mr. Pickering’s developed a power point presentation describing the “Stretch Energy Code”. He explained that the new code was intended to minimize the life cycle of energy costs for any and all constructions in town.

Mr. Pickering began with a brief historical overview of the new building code’s origins and adoption by the state legislature.  He noted that the regulation applied to new commercial and residential constructions, including additions and renovations. The discussion however focused on the code’s application to residential constructions. He discussed the home energy rating system (HERS) and process, and referred to the handouts that were provided for more information.

He enumerated the benefits in pursuing the “Stretch Energy Code” (SEC hereinafter) for new residential construction, and explained that it guaranteed good installation (air, watertight and thermal testing required). It provided for rebates and utility incentives through Cape Light Compact, a substantial decrease in energy consumption and a concomitant savings in energy costs. Mr. Pickering once again referred to the handouts he had provided demonstrating the costs and savings in constructing an energy efficient 2200 sq. ft. dwelling.

At the conclusion of the power point presentation, Mr. Peak opened the discussions to the board members and general public for questions and comments.

Mr. Stephenson inquired if new code applied to renovations and additions of a minimum sq. footage.  Mr. Pickering replied that there was no threshold. The new building code would apply to all renovations or additions requiring a building permit. Mr. Fried inquired if it applied solely to the renovation, or did it apply to the entire dwelling. Mr. Pickering replied that it was limited to the scope of the building permit.

Peter Cabana, the Town of Tisbury’s representative to the Cape Light Compact (CLC hereinafter) suggested that homeowners should consider asking CLC for a free energy audit.  Mr. Pickering noted that the SEC was designed to interface with all of the incentives and rebates that were available from the utilities as part of the three year plans they’ve submitted to the Dept of Public Utilities. He mentioned that there were other incentives homeowners could take advantage of as well.

Mr. Peak thought he read in an earlier printed version of the code that it applied to all new commercial and residential structures of 3000 sq. ft. more.  Mr. Pickering clarified for the record that the state statute limited the code to all new constructions and renovations of 3000 sq. ft. or more, whereas the SEC applied to all construction, renovations and additions. The SEC did not list a lower threshold.

Mr. Peak questioned whether they were going to keep the existing standard building code consistent with the SEC, in that,  for the present, if the renovation of the building was 50% or more of the assessed value of the house, the entire dwelling had to be brought up to code. Mr. Pickering did not know the answer, and offered to provide Mr. Peak the correct information.

Mr. Barwick, the building inspector just attended one of the training sessions, Mr. Pickering referred to earlier in the presentation and understood that it would be the case.

John Packer, town resident inquired if the requirement would apply to smaller projects such as a ramp. Mr. Pickering replied in the negative, and explained that the code was intended primarily for new constructions.

Bill Veno, the Senior Planner at the MV Commission inquired about the 5000 sq. ft. threshold for new commercial constructions. Mr. Pickering could not answer, and offered to contact the Building Commission on Mr. Veno’s behalf.

Mr. Cabana believed the initial cost was going to be of major concern to homeowners. He asked Mr. Pickering if he had an analysis prepared to compare the costs and savings for a non-energy efficient dwelling and a star energy efficient structure.  In the analysis the DOER prepared, he noted that it could cost the homeowner approximately $3,000.00.00 to $8,000.00 more, but that it would be paid off in the first to third year of their mortgage, with a positive cash flow from the first mortgage payment. Mr. Barwick referred the Board and general public to the Home Energy Raters LLC’s  website ( for additional information on cost analysis.

John Packer inquired if the financial lenders were aware of the upcoming regulation. Mr. Pickering replied in the affirmative, and noted that some of the lenders were offering lower borrowing rates for energy efficient constructions.  Mr. Barwick believed the new constructions would have an impact on homeowners’ insurance rates.

Mr. Peak asked Mr. Pickering if he would list the benefits in adopting the new bylaw, so that it could be presented to the town voters.  Mr. Pickering replied that the SEC would provide enticements for renewable and alternative energy resources to the town, income (from leases, taxes), reduction in energy fees, a commitment to reduce energy usage and budget by 20% over a five year period (at a savings to the taxpayers), a decreased contribution to air pollution with the purchase of fuel efficient vehicles and consideration for grants.

Mr. Stephenson inquired if the grants could be used to purchase and install solar panels on the new fire station. Mr. Pickering replied in the negative explaining that their priority would be on projects to focus on conservation efficiency.

Peter Cabana mentioned that he was attending a subcommittee’s meeting of the Cape & Vineyard Electric Cooperative tomorrow (17 March 2011) who will have a proposal for the town of tisbury to install a solar array south of the Park-N-Ride lot that will allow the town to sign a power purchase agreement for twenty years at a reduced cost of electricity.

He thought the Cape & Vineyard Electric Cooperative could also approach the County Commissioners with an RFP that would allow them to set up solar panels at the airport for the cost of electricity.

John Packer inquired if the town would gain points towards conserving energy if he offered the town solar power. Mr. Pickering replied in the negative and explained that the project had to demonstrate a reduction in energy usage, not cost.

John Bugbee noted that one of the thrusts for pursuing this project was to spare the taxpayers additional taxes. It was a task they had to undertake given the economy, but in this instance they would be saving the environment along with their budget.

Mr. Pickering wanted to clarify for the record that the financial incentives being offered by the state comes from a special fund that electric generators are required to contribute into for generating pollution. It did not come from the tax payers. The same funds also funded the Cape Light Compact, and other similar organizations.

There being no further comments or questions, Mr. Stephenson began the discussions on the Planning Board’s zoning bylaw amendments to promote and regulate large-scale ground-mounted solar photovoltaic installations in Business District II, and accompanying definitions in s.02.00 of the Tisbury Zoning Bylaws at 8:22 PM

Mr. Stephenson noted that the zoning bylaw amendments constituted one of the five requirements every community had to adopt in order to qualify as a Green Community. He re-entered the public hearing notices into the minutes and explained that the regulation was structured to install solar power arrays on town owned property, such as the landfill, which offered the minimum five acres of land for a practical and useful installation.

Mr. Stephenson referred the Board and members of the general public to the enlarged, color coded maps of the BII District prepared by the MV Commission for tonight’s presentation.  He noted that the pink shaded areas highlighted the municipal landfill, the yellow striped areas represented the vacant lands the town owned, while the black striped parcels reflected privately owned properties.  The difference between the two maps was that one included all parcels that were at least one acre in land area, while the second map highlighted all properties (public or private) that was at least five (5) acres or more in land area.

Mr. Stephenson explained that the proposed language originated from the state’s model bylaw, and was revised to meet the town’s specific needs. One of the issues he hoped to hear from the public was the amount of land area they should consider i.e. the one acre or five acres. The proposed regulation was specifically designed to permit photovoltaic solar arrays as a matter of right, provided the met all of the criteria listed in the regulation. The use in question in other words did not require a special permit, and it did not have to be reviewed at a hearing even that the town has to review the application.

The proposed regulation limits the review process to one year, and requires one permit, i.e. building permit.

Mr. Cabana asked the Planning Board not to make the regulation any more stringent than the state’s model bylaw, and allow for the one acre, because it would allow applicants to  install the arrays at four or five different locations. He did not think development projects should be limited to the one five (5) acre parcel, if what the state is interested in kilowatts of power. It may not be practical for the town.

Mr. Stephenson acknowledged the recommendation and inquired if town counsel was correct in advising the Planning Board that they could not limit the “permitting by site” over town owned property, such as the landfill.  Mr. Pickering noted that Kingston created an overlay zone over their landfill for wind/solar installations. He suggested contacting the towns of Hanover, Mashpee and Scituate to inquire how they managed to do the same.

Mr. Veno questioned how the one page with definitions correlated with the proposed bylaw. Mr. Peak replied that they defined the terms in the proposed regulation. They were also listed separately from the bylaw because the zoning bylaws contained all definitions in a separate section (s. 02).
Mr. Veno inquired if the composition and responsibilities of the Site Plan Review Board were clearly delineated in the bylaw. Mr. Stephenson replied in the affirmative, and directed the general public to the handout of the proposed bylaw regulation, definitions and correction. In the correction, additional language was recommended for section .02.04 in the proposed bylaw regulation. The handout, dated 16 March 2011 recommended the addition of the following language “The Planning Board shall issue decisions for Large-scale Ground-mounted Solar Photovoltaic Installations in the Business District II within one (1) year from the date of initial application to the date of final approval/denial.”

Mr. Veno inquired if the fee in section .02.03 referred to the permitting process or the building permit fee.  It was noted that the fee pertained to the building permit, which the Board of Selectmen would adopt.  Mr. Veno recommended reaching out to other communities. Mr. Pickering recommended discussing the information with Town Counsel.

Mr. Packer inquired why the use is not being allowed in the southwest triangle and the R3A district.  Mr. Stephenson stated that they were starting slowly, but that nothing prevented them from adding other districts down the road. He added that they had to be careful about stripping heavily wooded lands unnecessarily or getting too close to the wellhead.   Mr. Packer noted that there was plenty of farmland in the R3A Zone that could be used.  Mr. Cabana thought it would be wise not to limit potential properties elsewhere in town that could be utilized to generate solar power.  Mr. Pickering recommended contacting the Water Department who manage the properties on the town’s behalf to inquire if the solar arrays are permitted within certain distances for the town’s public source.

Mr. Barwick noted that he had informally recommended adding the 3RA District into the regulation, and will make a similar suggestion on town floor. He also inquired if the Planning Board discussed screening or buffers from abutting properties. Mr. Stephenson replied in the affirmative, noting that they were considering a 50 ft screened buffer. Mr. Barwick indicated that he raised the question because he was wondering if the Planning Board was treating the solar panel arrays as principal or accessory structures, subject to separate setback requirement from those currently in place for the BII District.

Mr. Peak noted that the bylaw included its own setbacks, distinct from the underlying district’s setback requirements currently in place. Mr. Peak mentioned that Mr. Stephenson had an issue with the recommended setbacks, and was leaning towards a 50 ft setback requirement all the way around.  Section .03.08.02 prescribed a vegetative screening around the perimeter within the setbacks.   Mr. Barwick thought the setback requirements should remain within the proposed bylaw.

Mr. Cabana favored less stringent restrictions, pending their location, such as the landfill, especially if they are required to be fenced in. He explained that he wanted to maximize the opportunities for the town, which had little land area to spare for this type of use. The Town of Tisbury has the smallest amount of land area on island and the cape available for this type of use.

Mr. Packer inquired if there were any restrictions against removing tall trees (i.e. 45 ft.) to accommodate the solar array installations. Mr. Peak replied that it depended on the proposal. Nothing prevented the property owner from removing trees that would interfere from the operation of the installation, The regulations however required a screened buffer to protect the abutters.

Mr. Pickering clarified for the record that the regulation was not based on land area, but on the power being generated, which required a minimum output of 250 kilowatts. A one acre parcel of land may not be able to generate this much power.  Mr. Stephenson noted that the language did not make any mention of land area requirements, just power output.

Mr. Cabana noted the time and asked if he and Mr. Pickering could be excused from the discussions, since the latter had a boat to catch. There being no further comments or questions, Mr. Stephenson recommended closing this portion of the discussions so that they could discuss the proposed definitions.

With the exception of the Building Inspector, everyone departed at 9:02 PM

Mr. Peak, at Mr. Stephenson’s instruction read the definitions in their entirety into the record of the minutes, and asked about the necessity of the following definitions:

XX. PLACE FOR MANUFACTURING, ASSEMBLING, OR PACKAGING OF GOODS Those used primarily for heavy or light industry or the manufacture or assembly of a product including processing, blending, fabrication, assembly, treatment and packaging.

XY. RESEARCH AND DEVELOPMENT FACILITIES Those facilities used primarily for research, development and/or testing of innovative information, concepts, methods, processes, materials, or products. This can include the design, development, and testing of biological, chemical, electrical, magnetic, mechanical, and/or optical components in advance of product manufacturing. The accessory development, fabrication, and light manufacturing of prototypes, or specialized machinery and devices integral to research or testing may be associated with these uses.

The Planning Board Secretary informed the Board that the two aforementioned definitions were added at the last minute into the notice on behalf of the Town Administrator, who submitted a proposal for wind energy, and accompanying definitions. After confirming with Mr. Pickering that both proposals were not necessary to qualify as a Green Community, Mr. Bugbee was advised to withdraw the Board of Selectmen’ bylaw amendments encouraging wind turbines. She advised the Board that the definitions were no longer necessary.

Board members were also informed that Mr. Jonathan Snyder, a representative of the Finance & Advisory Committee submitted a hand written note recommending grammatical corrections. These were entered into the record and acted upon.

The Board agreed that the definition for As-Of-Right Siting did not need to include “ or if there is none in a town, the Board of Selectmen, or person or board designated by local ordinance or bylaw.” They also agreed to delete the definitions for “Place for manufacturing, assembling or packaging” and “Research and Development Facilities”.

There being no further comment, Mr. Stephenson recommended closing the public hearing for the definitions to enter into deliberations. Mr. L. Anthony Peak so moved. Mr. Aldrin seconded the motion, and the motion carried.  4/0/0

9:17 PM Deliberations: A proposal to amend Section 02.00 of theTisbury Zoning Bylaw

Mr. Peak asked the Board members if they had additional comments or questions about the definitions.  There being no response from the Board, Mr. Peak entertained a motion to accept the definitions as delineated in the public hearing notice and handout, herein attached, with the exception of the following revisions:

02.05   As-of-Right Siting: As-of-Right Siting shall mean that development may proceed without the need for a special permit, variance, amendment, waiver, or other discretionary approval.  As-of-right development may be subject to site plan review to determine conformance with local zoning ordinances or bylaws.  Projects cannot be prohibited, but can be reasonably regulated by the local building inspector, or if there is none in a town, the board of selectmen, or person or board designated by local ordinance or bylaw

And the elimination of the definitions for “Place for manufacturing, assembling or packaging” and “Research and Development Facilities” .

Mr. Stephenson so moved.  Mr. Aldrin seconded the motion, which motion carried.   4/0/0

There being no further comment, Mr. Peak moved to close the deliberations. Mr. Aldrin seconded the motion.  The motion carried.  4/0/0  

The deliberation was duly closed at 9:25 PM

9:26 PM Public Hearing: A proposal to adopt Section 05.21.05 in the Tisbury Zoning Bylaw to promote and regulate large-scale ground-mounted solar photovoltaic installations in                 Business District II

Mr. Stephenson resumed the discussions for the adoption of a zoning bylaw promoting large scale, ground mounted photovoltaic installations at 9:26 PM

Mr. Barwick, the Building Inspector was invited to join the board in the discussions and to comment on the recommended setback requirement of 50 ft all the way around. Mr. Barwick repliedthat he could support the 50 ft setbacks.

Mr. Stephenson also mentioned that he’d like to see the bylaw have language that gave the Site Plan Review Board the authority to recommend an alternative landscape plan on a case by case basis to restore the landscape with medium and low growing vegetation.

Mr. Barwick requested a clarification with regards to the permitting process, and asked if applicants were required to go to the Planning Board after the Site Plan Review process. Mr. Peak replied in the negative, explaining that they were only required to have a building permit.

Board members were advised that they did not discuss the one revision that dealt with the expedited permitting process. The Board Secretary informed the Board that they had omitted the language, because Mr. Stephenson at the time did not believe it was necessary. On speaking with Mr. Pickering, the Board Secretary learned that expedited permitting process was one of the five (5) requirements to qualify as a “Green Community”.

Board members were reminded that the language was included in one of the handouts disseminated for tonight’s discussions. The one page handout, dated March 16, 2011 provided language by which to amend section . of the proposed bylaw. It  read:

The Site Plan Review Board shall issue decisions for Large-scale Ground-mounted Solar Photovoltaic installations in the Business District II within one (1) year from the date of initial application to the date of final approval/denial.

Mr. Stephenson deferred to the Board for a comment or motion.  Mr. Peak moved to amend the proposed s. to add the following language “The Site Plan Review Board shall issue decisions for Large-scale Ground-mounted Solar Photovoltaic installations in the Business District II within one (1) year from the date of initial application to the date of final approval/denial”.  Mr. Aldrin seconded the motion, and the motion carried.  4/0/0

There being no further comment, Mr. Stephenson entertained a motion to close the public hearing.  Mr. Peak so moved. Mr. Aldrin seconded the motion, and the motion carried.

Mr. Stephenson duly closed the public hearing at 9:46 PM

9:46 PM Deliberations: A proposal to adopt Section 05.21.05 in the                      Tisbury Zoning Bylaw to promote and regulate large-scale                        ground-mounted solar photovoltaic installations in Business
                District II

Mr. Stephenson indicated that he was initially concerned about requiring a minimum lot size to make sure they had sufficient land area to generate 250 kilowatts of power. He was no longer pursuing the requirement knowing that the regulation was emphasizing the 250 kilowatts, regardless of the size of the lot.

Relative to setbacks, Mr. Stephenson indicated that the use was not being distinguished as a primary or accessory use. They just wanted a sufficient buffer of 50 ft all the way around. He inquired if the same applied to ancillary structures in the BII District.

Mr. Peak advised Mr. Stephenson that the proposed bylaw also had language addressing appurtenant structures, which he assumed were accessory structures. He read the language into the record of the minutes, noting that language implied that they were to abide by the underlying district’s (BII) setback requirements.  Mr. Peak questioned whether they should make reference to s 13.02.02, where they are listed. Mr. Barwick replied in the affirmative, if that was the intent for the proposal.

Mr. Peak asked Mr. Barwick if there was any reason for this type of installation to have anything different for setback requirements.  Mr. Barwick did not think he could respond without knowing what “these types of installations” normally required to operate. He felt that the Planning Board had to understand that current regulations for the BII District allowed only one accessory structure with a 30 ft front yard setback, and 15 ft side and rear yard setbacks.

 Mr. Stephenson thought it presented a problem, if applicants needed more than one accessory structure.   Mr. Barwick thought the Board should confine the issue’s address within the proposed bylaw, so that the exception applied to the photovoltaic installations alone within the BII District. Mr. Barwick also recommended adding language that addressing parking, deliveries, etc.  Mr. Aldrin reminded the Board that no structures were allowed on the capped portion of the landfill, so that it could present a whole separate problem. Mr. Barwick recommended adding language to the bylaw clearly stating that the applicants will be able to have as many ancillary structures as necessary to operate the facility.

Mr. Peak reminded the Board that there were presently no trees at the landfill to be concerned about. Mr. Stephenson agreed. He also noted that parking would not be an issue, when the Park-N-Ride was nearby to accommodate the operations parking needs. He did not see why they could not have the accessory structures outside the capped areas in the landfill.  

Mr. Barwick recommended adding language to they bylaw giving the Site Plan Review Board or the Building Inspector the authority to permit the number of accessory structures necessary to operate the installation, and to revise the section entitled Site Control that clarified the kind of protective barrier (i.e. fencing) applicants needed to protect the installation (i.e. at any location or any height). Mr. Barwick reminded the Board that there were peripheral areas in the landfill that were never capped, so that the structures could be located elsewhere.

Mr. Stephenson did not anticipate more than two such applications in their lifetime, so that he did not think they had to “re-design the world”.  Mr. Barwick assured them from past experience that applicants will interpret the regulations to their own advantage, without regards to the consequences to the town, so that it was important to protect the town’s best interests when writing these regulations.  Mr. Stephenson acknowledged.

Based on the discussions, Mr. Peak believed that they had to amend s. 02.04, Site Plan Review to add language permitting them to develop guidelines for landscaping, lighting, etc.  Section 02 only defines the makeup of the board, but does not mention anything about its mandate, guidelines for their review process, submittals etc. as defined in s. 06.00.  

Mr. Peak thought they could incorporate language that allows the Building Inspector to waive certain requirements if the Site Plan Review Board recommends that he do so, but cannot waive them without the Site Plan Review Board’s recommendation.  Mr. Stephenson wanted to restrict the Site Plan Review Board’s ability to grant waivers as opposed to minor modifications.   Mr. Peak recommended they could address this through guidelines (i.e. not more than XXX or less than XXX, unless they agree on a compromise.

Due to the late hour, Mr. Stephenson recommended continuing the deliberations for the adoption of the proposed bylaw pertaining to the photovoltaic installations until March 23, 2011 at 7:15 PM. Mr. Peak so moved. Mr. Aldrin seconded the motion, which motion carried.  4/0/0

The Planning Board resumed their regularly scheduled session at 10:20 PM


Mr. Barwick did not believe the proposed bylaw amendment did not address the issue the Board of Selectmen was attempting to rectify, and benefited no one. He did not support the bylaw amendment.

The issue the Board of Selectman (name not mentioned) attempted to address with the proposed language could have been easily resolved if it was enforced by the Police Department. Mr. Barwick further noted that the one complaint that initiated the bylaw amendment was resolved.


1. W. Sterling Wall, Tetra Tech Inc.
RE: Ch. 91 Waterways License Application – Tisbury Market Place (R. Dunn)

2. American Planning Association
RE: Zoning Practice, March 2011

PRO FORM        Meeting opened, conducted and closed in due form at 10:27 P.M.  
                        (m/s/c  4/0/0)          
Respectfully submitted;
Patricia V. Harris, Secretary

APPROVAL:       Approved and accepted as official minutes;

______________          _________________________
Date                    L. Anthony Peak