Skip Navigation
This table is used for column layout.
Planning Board Minutes 03/27/13

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


DATE:           March 27, 2013
TIME:                   7:04 PM

PLACE:          Town Hall Annex

ATTENDANCE:     Peak, Stephenson, Thompson and Doble (Associate Member)
ABSENT:         Aldrin, Seidman

MINUTES:                As referred in the March 20, 2013 Meeting Agenda
                        06 March 2013   Deferred
                        20 March 2013   Deferred


7:04 PM Reid Silva, Vineyard Land Surveying & Engineers
A)      Form A Application for Ralph Packer, Northern Pines Road, AP 57A07
Mr. Silva submitted a plan for a division of land with a proposal to create two lots from a 19+/- acres parcel of land.  Board members were advised that Mr. Silva did not include the two parcels in the plan to save the applicant the expense of the additional surveying fees.

Mr. Silva explained that he omitted the perimeter survey of the remaining 16 acres because the information did not provide additional information.  The 3 acres parcel reflected in the plan met the requirements for a Form A Plan, and provided the Board all the information they needed for a determination.

Mr. Silva noted that the 3 acres lot met the dimensional requirements of the zoning district and had frontage on both Northern Pines Road and Hillman’s Point Way.

Mr. Thompson interrupted the discussions to advise the Board that he could not participate because of a conflict of interest. Mr. Thompson was related to the applicant at one time. The Board advised Mr. Silva that they could no longer discuss the division for lack of quorum, and offered to review the plan at their next meeting on 03 April 2013.

Mr. Peak understood Mr. Silva’s reason for not including the two lots, but felt that the plan should reflect the entire lot. Mr. Silva could insert a picture of the entire parcel with a notation clearly stating that the 16 acres parcel was not surveyed. Mr. Silva acknowledged.

B) Orland Donald, AP 07L06

The second division of land submitted by Mr. Reid entailed a division of a 11,400 sq. ft. lot with two pre-existing, non-conforming structures. Board members were reminded that pre-existing structures were protected by state statute and allowed to be on their own lots without meeting the dimensional requirements of the district. The Board of Assessor’s cards listed the main house as being constructed in 1860. The second structure was listed as of 1908.

Mr. Silva explained that the property owners wanted to sell the front lot to afford to remain in the smaller house on the rear lot. Mr. Peak informed Mr. Silva that the town did not allow common driveways. Mr. Silva noted that each dwelling was going to have a separate driveway and parking area.

Mr. Peak inquired if Mr. Silva had approached the Board of Health about the septic systems. Mr. Silva replied in the affirmative, noting that the Board of Health Commissioners did not have an issue with the upgrade, knowing that an endorsement would require several waivers.

Mr. Peak thought it was very important for the applicant(s) and future owners to understand that the newly created non-conforming lot and/or dwelling comes with zoning issues.  Mr. Barwick noted that any change would require a variance from the Zoning Board of Appeals.

There being no further comment, Mr. Peak entertained a motion to endorse the Plan of Land as presented by Mr. Silva as an ANR under the Subdivision Control Law. Mr. Stephenson so moved.  Mr. Thompson seconded the motion, which motion carried. 3/0/0

7:15 PM Public Hearing: Proposed Moratorium on Medical Marijuana Treatment                      Centers
                Attendance: Melinda Loberg, FinCom; Kenneth Barwick, Building Inspector

Hearing commenced in due form at 7:32 PM. Mr. Peak, Planning Board Co-Chairman read an excerpt of the hearing notice. He explained Town Counsel had reviewed the language and was recommending a few revisions. He wanted to read into the record, Town Counsel’s revised draft.

Mr. Peak noted for the record, that the petitioners, being the Board of Selectmen were absent.  For the members of the general public present, Mr. Peak explained that the Planning

Board was responsible for conducting a hearing on all proposals recommending amendments to the zoning bylaw, whether they proposed the amendments or not. The Planning Board is also responsible for reporting at town meeting, their vote either in support or against the proposed bylaw amendment.

Mr. Peak volunteered to represent the Board of Selectmen in their absence to present the proposed zoning bylaw amendment and offered to read the language as modified by town counsel. The revised draft, dated 13 March 2013 was read in its entirety, and is herein attached to the minutes.

Mr. Peak entered the Board of Selectmen’s letter to the Planning Board dated 05 March 2013 asking them to conduct a public hearing on the proposed bylaw amendment and to enter their recommendation(s) at town meeting as required by state statute. It was their hope that the temporary moratorium would afford the time sufficient time to evaluate the impact the facilities may have on the community, and to develop regulations that will allow them to comply with the recently approved state law.

Mrs. Loberg inquired if the language in the proposed bylaw amendment was similar to the language being proposed by the other towns. The Board Secretary replied in the affirmative. Mr. Peak clarified that the red print in the revised draft were amendments recommended by town counsel. He added that there also appeared to be a general consensus among the Planning Boards to try to make the regulations consistent throughout the island.  Towns across the Commonwealth were doing to same and recommending a temporary moratorium to their citizens to give themselves the time to develop regulations for the treatment facilities. They could not develop regulations until the Department of Public Health released theirs.

Mr. Stephenson believed one of the primary issues involved the number of facilities per county. The state was requiring a minimum of one and a maximum of five per county. If the one dispensary met the state’s requirement, one of the towns could end up with the dispensary.

Mr. Thompson thought it was confusing for the Board of Selectmen to refer to the moratorium as a bylaw.

Mr. Peak explained that while the moratorium was not a regulation, they were treating it as such because they could impose certain limitations (e.g. a restriction in its location) through zoning. The Oak Bluffs Planning Board indicated that they considered restricting the use to the Health Care District.

Ms. Doble inquired if there was a process by which to study the use.  Mrs. Loberg noted that the All Island Board of Selectmen at their meeting on 18 March 2013 agreed to write to the Dukes County Health Council to ask the Council to study the use and to report their findings and recommendations back to the All Island Board of Selectmen.

Mr. Barwick indicated that he had the opportunity to review the language, and had a couple of revisions he wanted to recommend to the Board of Selectmen. He referred the Board to section 07.17.04 of the March 13, 2013 revised draft and recommended adding “or special permits” in the last sentence.  Mr. Barwick indicated that he intended to recommend the revision to the Board of Selectmen at their next meeting.

Mr. Barwick also wanted to ask the County Commissioner present at the hearing if the Commission had ever considered locating a Medical Marijuana Treatment Facility (MMTF hereinafter) on county property to meet the state’s minimum requirement. The one facility would eliminate the pressure from each individual town, and the towns in return could support the facility monetarily or via regulations. Mrs. Loberg thought it was premature to pursue a certain course, until they hear from the Department of Public Health and the Dukes County Health Council.  She added that they also had to consider that possibility that the Wampanoag Tribal Council might want to have a dispensary on their grounds as well.

Mr. Barwick inquired if anyone had statistics on the number of patients that would currently qualify for the program, the number of physicians that would be participating and its enforcement. Mr. Peak did not believe the island could support more than one facility, under the current terms.  Mr. Barwick understood that some of the information may not be available or that it may be premature to consider a few options until the Health Council studied an MMTF’s impact.

Mr. Peak thought the moratoriums at this time serve to relieve some of the pressure from having to think about the subject.  Mrs. Loberg noted that at the time the All Island Board of Selectmen held their meeting on March 18, 2013, Edgartown, Oak Bluffs and Tisbury were the only towns that were pursuing a moratorium.  The West Tisbury Board of Selectmen did not indicate that they had an issue with the MMTFs. She also noted that the preference for one dispensary may be a mute point, if one of the towns was prepared to issue the necessary permits to allow the use.  Mr. Peak thought it would relieve the pressure from Edgartown, Oak Bluffs and Tisbury to permit any in their towns. The towns would still have to adopt regulations permitting the use by state statute. It was possible that the island may end up with five such dispensaries. It depended on the demand.

Mr. Barwick was interested in learning if the Planning Board supported the moratorium, and if they had an idea of the MMTFs were allowed as a matter of right or as an exception.  Mr. Peak could not respond, because they were still waiting for Department of Public Health’s regulations to be developed and released.  Mr. Barwick believed it was important for the Planning Board to be actively involved in the state’s public review process to safeguard the towns’ right to decide if the use will be categorized as an exemption, requiring a special permit. The process would allow the townspeople the opportunity to know about the facility, the location of the facility and the applicant.

Mr. Stephenson inquired if the state had the ability to regulate the qualifications of the applicants, whether its profit or not-for-profit. Mrs. Loberg clarified that the state is in the

process of developing their regulations that would set the minimum qualifications for the applicants and use.

Mr. Thompson noted that he was involved with the organization that developed the language for the bill that was passed at the state level explained that the preference for the not-for-profit was to prevent the pharmaceuticals from monopolizing the market to make the product cost prohibitive for the intended end user.  Mr. Thompson noted that the product’s medicinal properties have been demonstrated by studies conducted by the federal government since the 1940s.

Mr. Barwick expressed concern about the facilities’ not-for-profit status the state was considering, because not-for profits by state statute were given exemptions from local ordinances, which could prevent the towns from establishing or enforcing certain limitations. He did not think the protection afforded by the not-for-profit status served the towns best interests. Mr. Barwick urged the Planning Board, the Board of Selectmen, the Health Council, and the County to make sure that there were restrictions on the exemptions that would allow them to scrutinize the use on a case by case basis.  Mr. Peak thought it was a very good point, and intended on contacting the Department of Public Health or town counsel for information.

Mrs. Loberg mentioned that the Board of Selectmen had initially considered the adoption of a town bylaw prohibiting the consumption of the project on public property, but found that the existing town bylaw just had to be modified to include marijuana.

There being no further comment or questions from the board members, town officials and members of the general public, Mr. Peak entertained a motion to close the public hearing and enter into deliberations.  Mr. Stephenson so moved.  Mr. Thompson seconded the motion.   3/0/0   The hearing closed at 8:24 PM

8:24 PM Deliberations: Proposed Moratorium on Medical Marijuana Treatment                       Centers

The deliberations of the previously closed hearing opened at 8:24 PM. Mr. Peak explained that the Planning Board had to determine if they were or were not going to support the moratorium.

Mr. Thompson did not favor the moratorium and indicated that he would vote against the measure.  He also asked Mrs. Loberg if the County Commission had petitioned the state to remove marijuana from its current classification (Schedule 1 – non-medical) so that it could be studied. If not he asked Mrs. Loberg to bring the suggestion to the County Commissioners. It was his impression that the moratorium was unnecessary and appeared served as a prohibition against MMTCs.  

Mr. Peak disagreed, and clarified that they were not prohibiting the use, but giving the town time to establish some regulations. He asked if Mr. Thompson favored having a dispensary on Main Street. Mr. Thompson replied in the affirmative, because he qualified the use as a retail business.  Mr. Thompson thought this was long overdue.

Mr. Stephenson understood Mr. Thompson’s position but felt they needed to follow through with a study, so that they can establish reasonable regulations. With regards to the moratorium, he supported the measure, because they needed the time to synchronize their efforts with the other towns and the DPH to make sure they have consistent regulations throughout the island.

Mrs. Doble noted that the moratorium was being recommended for a year, and asked how they came up with the time frame. Mr. Stephenson noticed that it coincided with the annual town meeting.  Mr. Peak noted that it was illegal to impose the moratorium when it can be legally proven that the temporary prohibition was no longer utilized as intended. The moratorium is also limited to one year duration, and can not be extended without going back to town meeting for a vote.

Mr. Peak deferred to the Board and inquired if they had additional comments or questions on the subject. There being no comment from the Board, Mr. Peak entertained a motion to recommend the adoption of the Temporary Moratorium Regulations for Medical Marijuana Treatment Centers. Mr. Stephenson so moved.  Mr. Thompson seconded the motion. 2/1/0 Mr. Thompson voted against the moratorium

Mr. Peak entertained a motion to close the deliberations.  Mr. Stephenson moved the motion, which was seconded by Mr. Thompson.  3/0/0   The Deliberations were duly closed at 8:37 PM

8:15 PM Deliberations: Special Permit Application by Mateus Vaz Destefani dba “Bite             on the Go”, AP 09C11

The continuation of the deliberations was opened at 8:40 PM to review the draft special permit that was prepared for the Board’s review.

Mr. Peak referred the Board to the second page of the draft document and read through the entire document starting at the section entitled “Background” to review the contents of the decision for any corrections and revisions.

Mr. Peak corrected the clerical errors located in the document and deferred to the Board for additional comments.  There being none, Mr. Peak entertained a motion to approve of the draft decision as amended. Mr. Stephenson so moved. Mr. Thompson seconded the motion, which motion carried. 3/0/0

Mr. Peak entertained a motion to close the deliberations. Mr. Stephenson so moved. Mr. Thompson seconded the motion.  3/0/0 The deliberations was closed at 8:45 PM.


1.  Peg Regan, Mass in Motion
A. Walkability Checklist – National Center
B. Bikability Checklist

The Board Secretary was asked to forward Ms. Regan’s email to Mr. Israel so that they can schedule a meeting for the student’s presentation of their audit.  

Mr. Stephenson questioned whether they will need maps for the routes they were going to audit. Ms. Doble inquired about their presentation, thinking that they would need maps. Mr. Stephenson was interested in learning about the final product for the project.

Ms. Doble inquired if they’ve set a date and time for the audit. Mr. Peak deferred to Ms. Regan’s email. Ms. Doble expressed an interest in the subject, having experience in working with high school and junior high students on various projects to foster an interest in “planning”.

The Board Secretary offered to contact Ms. Regan to advise her Ms. Doyle’s interest in the project.

2. Mass. Dept. of Conservation and Recreation
RE: DCR Terra Firma, Caring for Mature Trees

3. EBI Consulting
RE: Invitation to comment – AT&T Mobility’s WCF, 66 High Point Lane

PRO FORM        Meeting opened, conducted and closed in due form at 9:10 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