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Planning Board Minutes 02/23/2011

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


DATE:                   February 23, 2011       

TIME:                           7:11 PM

PLACE:                  Town Hall Annex, 66 High Point lane

ATTENDANCE:             Aldrin, Peak, Seidman and Stephenson
ABSENT:                 Thompson        
MEETING MINUTES:        As referred in the February 16, 2011 Meeting Agenda
                                02/09/11        Deferred        
                                02/16/11        Deferred

BILLS:                  Vineyard Gazette…………………..$205.00
                                Patricia Harris (Mileage)…………..$    4.08


7:10 PM Deliberations (Cont):Thomas McCurdy, McCurdy Motors Inc. AP 10B01
                Attendance: Mary Ellen Larsen, Fin Com

The continuation of the applicant’s deliberations was duly opened at 7:20 PM in order to review the Planning Board’s draft decision for final approval.

Board members bypassed the first page of the document to review the background information, findings, the determination and the conditions & restrictions. Mr. Peak recommended grammatical corrections for the first two entries in Background, which were to read as follows:
1. Mr. McCurdy, a sales car dealer testified that he has been displaying and retailing automobiles at 199 Beach Road for approximately 20 months, after being displaced from his prior business location by the sale of the property at 45 Beach Road.
2. R.M. Packer, original owner of both properties offered the applicant the alternate site in which to relocate his business at 199 Beach Road, just across the street from Mr. McCurdy’s business office at 158 Beach Road, subsequent to the sale of 45 Beach Road.

Mr. Peak recommended adding a third entry, but decided against the language because it was part of the written decision under Finding No. 1.  The fourth entry under Background remained unchanged.

The Board reviewed the remainder of the draft document and agreed upon the following revisions:

No. 2  The designated … R.M. Packer Co….  operations on the bulk of this lot and on adjacent properties give … appearance.

No. 3  The applicant, in testimony, at the public hearing,contractual  transactions….

No. 5 The Planning Board… which states “ …non-conforming structure” and Section 07, pertaining to “pre-existing, non-conforming Uses and Structures, which precedes Section 06.00 requires a special permit. This is consistent with Section 07.00 of the Tisbury Zoning Bylaw entitled General Regulations for Pre-existing, Non-conforming Uses and Structures, which predates Section 06.00 in its adoption.

No. 6 The Planning Board also finds that Section 07.01.02 of the General Regulations governing Pre-Existing, Non-Conforming Uses and Structures pertaining to the grant of permit to allow a pre-existing non-conforming use to be changed to a different non-conforming use also applied, because current proposal would not preclude a permitted use from occupying the designated area, and reduced the degree of non-conformity with the reduction in auto traffic.  (i.e. The Board of Appeals may, after a public hearing, grant a Permit to allow a pre-existing non-conforming use to be changed to a different non-conforming use, provided that the change reduces the degree of non-conformity through such changes as reduced auto or truck traffic, smaller or fewer signs, less floor area or land devoted to the use, less discernible noise, vibration, odor, or light, or exterior appearance more consistent with that of the district),  while not restated in Section 06.00, may also be applied to the Waterfront Commercial District.

No. 7 The Planning Board further finds that the display or staging of vehicles for sale is consistent not significantly different from the original, pre-existing, non-conforming use as employee parking. The proposed change of use  does not detract from or improve the visual qualities of the location

No. 8 Testimony was offered to suggest that traffic to and from the property was actually reduced from the changed use relative to the levels generated by the original pre-existing, non-conforming use.

No. 9. was much more problematic, andMr. Peak recommended revising the language to state:
It is the opinion of  the Planning Board that Section 10.02.02, entitled Administration of the Tisbury Zoning Bylaws applies to the proposal.  and cites that the “proposed use did not have an adverse effect(s) upon the Waterside Management Area of the Waterfront Commercial District this special permit, as do all regulations pertaining to the issuance of special permits. The Planning Board finds that the administrative requirements for special permits found in Section 10.02.02, entitled Administration of the Tisbury Zoning Bylaws should reasonably be applied to any special permit granted by any special permit granting authority.

Mr. Peak noted that the Zoning Board of Appeals was the only special permit granting authority in existence at the time Section 10.00 was drafted, which explained why the regulation omitted any mention of the Planning Board. It was his opinion that the regulation should be expanded to include all other special permit granting authorities.

Mr. Aldrin understood what Mr. Peak was trying to accomplish, but questioned the need to add the language in the applicant’s decision, because he believed it was more of an administrative correction that should be pursued as a zoning bylaw amendment.  Mr. Peak replied that he wanted to establish a reasonable basis for considering the proposal as a change of one non-conforming use to another.

Mr. Seidman agreed with Mr. Aldrin, and thought they could be a bit more succint if they considered the following alternative: “The Planning Board interprets Section 10.02.02 of the Tisbury Zoning Bylaw can be reasonably applied to any special permit granted by any special permit granting authority, so that the administrative requirements  and considerations apply to this application.

Mr. Peak did not believe the recommendation accomplished his objective, and asked the Board if they would consider the following amendment:
The Planning Board finds that the criteria for special permits found in Section 10.00 of the Tisbury Zoning Bylaw, while specifically refers to the Tisbury Zoning Board of Appeals should reasonably be applied to any special permit granting authority, and makes note of the fact that the Planning Board was not the special permit granting authority at the time of the adoption of Section 10.00. And this was acceptable to the Board

Mr. Peak proposed revising Finding No 4 to state that “The applicant offers and the Planning Board accepts that he will display no more than twelve (12) vehicles at any given time”.  In subsequent discussions, the Board agreed to move the Finding and renumber it asFinding No. 9”.

Additional discussions followed, and the Planning Board members agreed on the following revisions and additions:

10. The applicant offers and the Planning Board accepts that the existing sign will be reduced in area and height to comply with Section 07.06.04 of the Tisbury Zoning Bylaw. The height will be reduced to a figure above the height of the automobiles.

The applicant further offers not to have additional signage.

11. The applicant offers and the Planning Board accepts that there will be no lighting, lit signs, flags, pennants, and other attention drawing displays

12. The Planning Board finds that none of the proposed changes will not preclude the future use of the property for permitted uses in the Waterside Management Area of the Waterfront Commercial District.

Condition & Restrictions

1. This …. and applies to the applicant, not the property, and is not transferrable.
Any change in tenancy will void this special permit. At no time will the change in ownership of the property affect the special permit’s validity.

Condition Nos. 2 to 5 were to be deleted and replaced with the following

2. There will be no changes in the scope of operations as permitted.

3. The applicant’s offers as enumerated in Finding Nos. 9 to 11 are binding.

4. All vehicular maintenance or repair work is prohibited at this location.

5. The applicant is required to review his sign application with the Site Plan Review Board prior to obtaining a sign permit from the Building Inspector.

There being no further discussion, Mr. Peak entertained a motion to approve the draft special permit document as revised.  Mr. Seidman so moved. Mr. Stephenson seconded the motion, which motion carried.   4/0/0

At the conclusion of the discussion, Mr. Peak entertained a motion to close the deliberation. Again there being no comment, Mr. Stephenson so moved, and Mr. Aldrin seconded the motion.  With any further comment the Board voted to close the deliberation at 8:23 PM.


1. 2010 Town Report
RE: Draft

Mr. Stephenson volunteered to generate a draft document on the Board’s behalf. Board members felt confident that the draft document could serve as their final report, so that it could be submitted to the Board of Selectmen.


1.      John Bugbee, Town Administrator
RE: Spring 2011 Articles

Planning Board members were surprised at the Board of Selectmen’s articles, which included major zoning bylaw amendments. They were concerned that no one from the department had met with them to discuss the proposals before they were added on the town warrant.

The proposed bylaw amendments were incomplete and unacceptable in its current form. It was obvious that very little thought was given to the bylaw amendments because several sections lacked vital information. It appeared that the Board of Selectmen submitted a state template without any revisions.

Mr. Peak instructed the board secretary to contact the Town Administrator, Mr. Bugbee to schedule an appointment with the Planning Board, and to inform him that the wind energy bylaw was not acceptable as submitted. The Board of Selectmen had to have an acceptable proposal by the date of the hearing’s first ad in the newspaper.

2.      Marion Mudge, Town Clerk
RE: STM Warrant Articles

3. DEP
RE: Public Meeting Notice – Town of Tisbury Dredging project around Lake Street Landing

4. MV Commission
A. 18 February 2011 Extended Schedule
B. 24 February 2011 Meeting Agenda

5. Tisbury Zoning Board of Appeals
A. Public Hearing Notice – John Rancourt, AP 22A18 (sale and services of motorcycles)
B. Public Hearing Notice – Howell Begle, AP 06D07 (expansion of pre-existing, non-conforming use and structure)
C. Public Hearing Notice – A2Z Restaurant LLC. 07N06 (food service operation)
D. Public Hearing Notice – Jennifer Oliver, A 07D09 (food service operation)
E. Public Hearing Notice – moon Owl realty LCC, AP 03A06 (addition to pre-existing, non-conforming structure)
F. Public Hearing Notice – Larry Mollin, AP 08E08 (addition to pre-existing, non-conforming structure)
G. Special Permit # 2043- Amor and Margaret Towles, AP 01G03
H. Special Permit # 2047 – Lucy P. Sprayregen, AP 59B14
I. Special Permit # 2048 – Anthony Cywinski, AP 22C05
J. Special Permit # 2049 – Michael Snowden, AP 12C16

6. American Planning Association
RE: The Commissioner, Winter 2011


1. Public Hearing Notices on March 16, 2011 at the Tisbury Senior Center
A. ZBL Amendment S. 02.00 Definitions
B. ZBL Amendment S. 05.21.05, Business District II

Board members were given a copy of the proposed bylaw, Mr. Stephenson submitted on the Planning Board’s behalf to the Board of Selectmen for inclusion in the Special Town Meeting Warrant. He explained that the accompanying zoning bylaw amendment to section 02.00 incorporated the definitions that were recommended for the adoption of section 05.21.05 pertaining to solar photovoltaic installations.

Mr. Stephenson mentioned that the state was proposing an “expedited permitting process” with the proposed alternative energy bylaw, but did not see the necessity for the additional regulation when it was already built into the town’s existing permitting process. It was brought to his attention that the expedited permitting process was an appendage to the Wind Turbine Bylaw, Mr. Bugbee, the Town Administrator was pursuing on behalf of the Board of Selectmen.

Board members were informed that Mr. Bugbee was not aware of the Planning Board’s discussions with the MV Commission to postpone the adoption of the state’s wind turbine regulations, or their proposal for solar power. Mr. Bugbee indicated that he was asked by the Selectmen to pursue the regulatory revisions required to qualify the town as a Green Community.  It was noted that Mr. Bugbee was not familiar with the administrative process described by state statute pertaining to the adoption or revision of zoning bylaws. The Board of Selectmen’s zoning bylaw proposals were received only last Friday on February 18, 2011 at the end of the work day.

Mr. Stephenson explained that there were five components or requirements to qualify as a Green Community. There was the zoning regulations, the expedited permitting process, the Stretch Building Code, buying energy efficient vehicles and monitoring energy usage. It was his understanding that they did not have to adopt both the wind turbine regulation and the solar photovoltaic regulation to meet the criteria as a Green Community. He nonetheless instructed the Board Secretary to contact Seth Pickering, DOER’s representative to local communities regarding the Green Community Act.

Mr. Stephenson thought they should review the proposed bylaw amendment before they held the public hearing to answer any questions or issues they might have with the proposal. He advised the Board that the language regulated the solar power generation by the amount of power generated i.e. 250kW or more, as opposed to land area.

He noted that there was a typo on page 3 in section 3.1.0 (iv) which had to be corrected, and thought it should say “other” as opposed to “over current devices”.

Mr. Stephenson referred the Board to the setback requirements, reading the language in the proposed bylaw and in the current regulation for the BII District. After some discussion, he thought they should adhere to the existing setback requirements for the BII District.  He suggested revising section 3.5.1, Setbacks to read as “All structures including photovoltaic arrays and appurtenant structures shall comply with the Front yard, Side yard and Rear yard setback requirements of the BII. Where the property line abuts a residential owner or conservation land, the setback will be 50 feet”.

Board members were referred to section 3.5.2 and advised that they should revise the word “shaded” to “shielded”.

Mr. Stephenson thought he’d like to revise the language in section 3.6.1 to say “safety lighting shall be both shielded down lighting and motion sensitive or motion activated”.

Moving forward to section3.7.2, Land Clearing, Soil Erosion and Habitat Impacts, Mr. Stephenson indicated that they should require some kind of vegetation within the setbacks. He did not understand the reference to the Site Plan Review Board, or who they will be.  He noticed that the Site Plan Review Board is mentioned throughout the entire document.

The Board Secretary mentioned that she had replaced every reference to Site Plan Review Authority with “Board” because she did not have information about its composition, term, duties, etc.

Mr. Peak mentioned that they already had two such boards in existence responsible for reviewing applications in the coastal district, the Scenic Roads, and the Waterfront Commercial District. He questioned if any of the two could assume the responsibility for the site plan review process described in the bylaw.

Mr. Stephenson questioned whether they could eliminate all references to the Site Plan Review Board for the present. Mr. Seidman concurred. Mr. Peak noted that someone had to review the proposal. It did not have to be a Site Plan Review Board.  Mr. Seidman recommended having the Planning Board as the Site Plan Review Board l. Mr. Peak thought they could say “Site Plan Review by the Planning Board”.  

Mr. Peak referred the Board members to the definition of the Site Plan Review Board or the Site Plan Review Board as defined in section 02.61. And the Board members agreed.

On returning to section 3.7.2, Mr. Stephenson wanted to add language about the vegetation in the setback areas had to be maintained or replaced with plantings according to a plan approved by the Site Plan Review Board.

Mr. Stephenson thought they should add a section i.e. 3.7.3 – Fencing.  Mr. Peak recommended looking at language for fencing currently in place for cell towers.  Mr. Stephenson clarified for the record that he was specifically looking at fencing the photovoltaic arrays, not the entire perimeter of the property.

There being no further discussion, Mr. Peak recommended contacting the Board of Selectmen to find out their meeting schedule and schedule an appointment with them to discuss their articles.

The Board Secretary was also instructed to schedule, post and advertise the hearing notices for the Board of Selectmen’s bylaws as soon as possible, and contact Mr. Pickering about the requirements to qualify for a Green Community. The Board questioned whether they had to approve both solar and wind energy, and/or the expedited permitting process.

Mr. Peak also asked the Board Secretary to contact the Town Administrator via email to ask him if he or the Board of Selectmen will be attending the public hearing to explain their proposals.

PRO FORM        Meeting opened, conducted and closed in due form at 9:45 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