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Zoning Board of Appeals Minutes 03/28/2013
Zoning Board of Appeals
Middleton, MA
March 28, 2013

The Middleton Zoning Board of Appeals met at a regularly scheduled meeting
on March 28, 2013 at the Fuller Meadow School,
143 South Main Street, Middleton, Massachusetts at 7:00 PM.

The following board members were in attendance:
Chairperson, Barbara Piselli, Clerk, Anne Cote, and members Craig Hartwell, James Fox, Nicholas Yebba, Jeff Garber and Robert Aldenberg

Others present:
Karen Matsubara, Recording Secretary

Chairperson, Barbara Piselli called the meeting to order at 7:12 p.m.

30 Lake Street, Map 24, Lot 37-Site Plan Modification-Town of Danvers
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.

Chairperson Piselli announced the voting members-James Fox, Craig Hartwell, Nicholas Yebba, Anne Cote and Barbara Piselli with Jeff Garber and Robert Aldenberg as alternates.

Anthony Zuena of Kleinfelder, designers and construction managers of the water treatment facility gave a brief history of the project that was approved by special permit by the ZBA in October 2010.  A new ozone treatment building with liquid oxygen (LOX) heat system was part of the special permit approval.  The project was publicly bid shortly after approval and has been under construction since the fall of 2011.  It is expected that the project will be completed by the summer.  The documents presented to the Board in 2010 showed a plan view of the footprint where the LOX tank would be located.  The technical specifications which were part of the public bid clearly indicated that the LOX tank would be vertical.  The Planning Board reviewed the petition two weeks ago and suggested two conditions; 1) seek input from the abutters and 2) offer additional screening.  The abutters have been contacted and a plan has been prepared for the screening.  The LOX tank is just under 30’ tall and 9.5 ft wide.  Mr. Zuena reviewed the following submittals with the Board: One aerial view, two photographs of the current view of the plant from the abutting property, and two renderings of the two views showing the vertical LOX tank.

Maria Paikos of 5 Esteymere Place stated that she had supplied a letter and signed a petition in opposition of the modification.  She did not feel the screening being proposed would be adequate to cover the tank from view.  The pad for the LOX tank was poured months ago and the plans were approved over two years ago.  Ms Paikos felt that they were manipulating the Town by omission of the tank on the plans either by error or intent.

Tim Houten of 47 Lake Street commented on the LOX tank, a major structure, being left off the site plan.  The tank is white and does not blend in with the surrounding structures which are gray and brown.  The tank will stick out and affect the view of the lake.  Mr. Houten also expressed concern over the tank being vertical because of strong winds and the possibility of it falling down and rupturing.

Chairperson Piselli asked why the tank could not be placed horizontally.  

Mr. Zuena explained that when the manufacturer supplied its shop drawings in compliance with the technical specifications, the equipment was manufactured and is now ready to ship.  To manufacture a new tank would delay the project for at least six months and increase the costs by several hundred thousand dollars.

Mr. Aldenberg stated that the Planning Board had recommended that an agreement be made with the abutters and that has not been accomplished.  He asked why Danvers and Middleton residents should bear the cost of the tank when it was the engineers that made the mistake.

Mr. Zuena stated that no mistake was made.  The plan view of the design drawings showed the location of the tank but it is the manufacturer that designs the tank.

Ms. Piselli confirmed that the footprint on the plan was horizontal which led everyone to believe the tank would be horizontal.

Mr. Zuena explained that the footprint was shown to accommodate either possibility but the specifications called for a vertical tank.

In response to a question from abutter Dennis Kelly about the requirement that the tank be vertical per OSHA regulations, Richard Rodgers, Danvers Town Engineer explained that there was no requirement that the tank be vertical per OSHA.

Maria Ferrigno of 1 Esteymere Place asked if the manufacturer makes LOX tanks that can be horizontal.

David Peeling of Kleinfelder stated that the company does make horizontal tanks but again, that would set the project back six months and increase the costs.

Clerk Anne Cote read correspondence from the Planning Board dated 3/27/2013, a letter of opposition from Maria Paikos dated 3/21/2013 and a citizen’s petition of opposition dated 3/20/13. (All correspondence on file.)

In regard to the meeting with the abutters Ms. Paikos explained that Tara Hourihan and one of the engineers visited her home and asked that she attend a private meeting which she felt was inappropriate.

Ms. Hourihan explained that at the request of the Town they had contacted the direct abutters to the project which were the Kellys, 12 Esteymere Place, Maria Paikos, 5 Esteymere Place and the Carpenters who live in Marblehead, owners of 31 Boston Street.  No agreement on the screening was reached.

Chairperson Piselli confirmed with the Planning Board Chairperson, Christine Lindberg of 9 Lake Street, that the recommendation of the Planning Board was contingent upon an agreement with the abutters being reached.  Ms. Lindberg disclosed that she is also an abutter but did not receive notice until after the Planning Board hearing.

After some additional discussion and suggestions from the Board, Chairperson Piselli recommended that the petitioners look into their options and have a meeting with all the abutters.

Jason McCarthy, Treatment Plant Manager stated that the neighbors and Board are welcome to come for a site visit to see how the facility operates.

In response to safety concerns raised by the abutters, Mr. Peeling explained that the LOX tank holds liquid oxygen which is not a flammable material.  
Mr. Fox pointed out that while the oxygen is not a hazardous material, the ozone is toxic.

Mr. Peeling acknowledged that extensive systems are in place for the ozone.  There are no NFPA requirements for alarms or lights on the LOX tank.

Mr. Aldenberg reiterated that the petitioners had given both the Planning Board and Zoning Board of Appeals the impression that the tank would be horizontal at the time of the original application and have known for quite some time that the tank would be vertical and waited until it was time to install the tank before coming back to the Boards.

Mr. Zuena explained that the Building Commissioner asked that the petitioner come back before the Board after he discovered that the tank was going to be vertical.  The original approval was silent on the LOX tank with the exception of location.

Mr. Houten stated that the Board never approved the tank as it was not shown on the plan.

Mr. Hartwell, Mr. Fox, Mr. Yebba and Ms. Cote were all part of the original hearing and no one recalls being told that there would be a 30’ tall LOX tank.

MOTION: Made by Craig Hartwell to continue the hearing to the April 25, 2013 meeting.  Motion seconded by Anne Cote.  Vote 5-0 in favor, motion carried.

Chairperson Piselli called a recess, back on record at 8:10 pm.

230R So. Main Street, Map 29, Lot 188C-Kearsage Middleton LLC-Special Permit & Site Plan Approval
Jeff Garber is recused from the hearing.

Chairperson Piselli reviewed that at the last hearing the matter was opened and a site walk was scheduled.  The site walk was cancelled because only two members were available.  Since the last meeting the Selectmen have allowed the exemption pursuant to the Ethics Commission’s disclosure rules for Nick Yebba and James Fox to vote on the matter.  Mr. Aldenberg will be the alternate member on the petition.

Attorney Jill Mann presented the petition for the installation of a solar project at the rear of 230 South Main Street.  The access point of the property is located over the access road between Teak Imports and 206 South Main Street.  The parcel, which will be leased, is a 23 acre portion of the Richardson’s Farms property.  Previously that portion of the property was used for a gravel pit; it is primarily ledge and rock and is perfectly suited for the proposed use.  Approximately 17,000 solar panels will be installed with a maximum height of 8.5’.  The site will not be visible from the public way.  One benefit of the development, in addition to bringing in tax revenue, is that there are absolutely no demands on Town services.  Once the panels are installed the site will only be visited once a month or as necessary for repairs; it is an unmanned facility, there will be no impact on traffic.  A fence will be installed to prevent vandalism.  There will also not be any additional impervious surfaces.  Jobs will be created with the construction phase.  The noise generated by the inverters is a low hum which will only be emitted when there is sunlight.

Clerk Anne Cote read the following correspondence into record:  Planning Board letter dated 2/28/2013, letter dated 2/27/2013 from Ira Singer, Town Administrator. (Letters on file.)

The letter dated 2/28/2013 from Mark Kelly of Middleton Electric Light was added to the record but not read by the clerk. (Letter on file.)

Mr. Aldenberg asked why the petitioner had filed for a special permit under essential services.

Attorney Mann explained that it was a categorization.

Mr. Aldenberg argued that if this service is not provided it will not have an impact on the Middleton residents and is not an essential service according to the Middleton Zoning Bylaw and it is his contention that this type of system is not allowed under the current bylaw.

In response to a question about the conversion of the farm land, Attorney Mann explained that under 61A the property owner is required to file the change with DOR and that rollback taxes are then assessed to the owners.  Even though the property is a conversion the Town has the automatic right to buy the property.  But because it is a conversion and not a sale it is a different kind of right, from the time of notice the Town has 30 days to secure an appraisal and make an offer.

Chairperson Piselli asked if the applicant had come to an agreement with the Town.

Attorney Mann explained that they were working on agreements with respect to a connection, purchase of the power and taxes but did not yet have any agreements.

Ms. Cote expressed concern over abandonment of the project.

Richard McCarthy of Innovative Engineering stated that his company has built over ten solar projects specifically for towns and is currently starting construction another four.  The State has instituted green programs with incentives to develop solar projects that will create additional electricity during peak uses and reduce carbon gases.  It is expected that the legislature will extend the program after it reaches its 400 megawatt goal.  Mr. McCarthy explained the process involved with installation and connection of the solar systems.

Mike Maynard, principal of Kearsage Middleton LLC, explained that they have been working with MELD for over a year on three proposals; to access a connection to provide power to other buyers, to buy some of the power or to buy all the power.  Currently there is an agreement with a buyer who is out of state to purchase all the power.

Chairperson Piselli confirmed that this project is only feasible if an agreement is reached for the connectivity with MELD and requested follow up information from Attorney Mann.

In response to the comments made about the development benefiting the Town, Attorney Philip Riley stated that there would a net benefit.  With regard to a development that would be more lucrative to the Town, there would be a high cost associated with site development as a conventional septic system would not be able to be installed based on the ledge and other site conditions.  Development of that kind will only happen when the entire property is developed which will probably never happen in our lifetime.

MOTION: Made by Craig Hartwell to continue the hearing to the next ZBA meeting scheduled for 4/25/2013.  Motion seconded by Anne Cote.  Vote 5-0 in favor, motion carried.

65 North Main Street, Map 17, Lot 96-Middleton Police Station-Request of Determination on Modification of Site Plan
Chairperson Piselli explained that a request had been submitted to the Board to make a determination on whether changes made to the police station site plan are considered minor or major.  If determined to be major modifications the Police Chief indicated that a formal filing would be submitted to the Board.  The changes shown on the rendering provided include: removal of a window from the old portion of the building which is now under the new entry, openings in the façade for safety reasons, changes to the sign lettering from solid black to flat aluminum (appearance of sign will be the same), and the installation of an information board on the wall under the entry to display general information.

The Board members discussed the changes to the site plan and determined the changes to be minor in nature.

It was noted that in the future if site plan changes are going to be made, approval by the Board must be sought prior to any changes taking place.

MOTION: Made by Craig Hartwell that the site plan modifications are determined to be minor and do not require a public hearing.  Motion seconded by Nicholas Yebba.  Vote 4-1 in favor, motion carried.  Craig Hartwell voted against.

236 South Main Street, Map 33, Lot 50-Anola Vaka-Use Variance
Clerk Anne Cote read the legal notice and confirmed that the abutters had been notified.

Ed Holland, owner of the property stated that he had checked with the Board of Health and Building Commissioner to make sure that the pet grooming facility could be located at the facility.

The petitioner Anola Vaka explained that her business hours would be 9-5 Monday through Saturday.

Clerk Anne Cote read correspondence from the Planning Board dated 3/27/13. (Letter on file.)

Mr. Holland explained that a recycling grooming system will be used.  A flow chart for the property was reviewed by the Health Agent and he determined that there is adequate septic capacity for the added use.

Mr. Hartwell reviewed the table of use regulations and the reason a request for a use variance was being sought.  He noted that the Bylaw Committee has submitted a bylaw change for vote at Town Meeting which would allow this use by special permit and suggested that the petitioner continue the meeting until after Town Meeting.

After additional discussion the Board agreed to hold a special hearing.

MOTION: Made by Craig Hartwell to continue the hearing to April 2, 2013 at 7:00 pm.  Motion seconded by Jeff Garber.  Vote 5-0 in favor, motion carried.  The voting members will be Craig Hartwell, Jeff Garber, James Fox, Anne Cote and Robert Aldenberg.

Minutes February 28, 2013

MOTION: Made by Craig Hartwell to approve the minutes of February 28, 2013 as written.  Motion seconded by Barbara Piselli.  Vote 4-0 in favor, motion carried.

Chairperson Piselli called a recess, back on record at 9:30 pm.

156 South Main Street, Map 29, Lot 190-Richardson’s Farms Inc.-Request of Determination on Modifications to Site Plan
James Fox and Jeff Garber are recused as they are abutters to the property.

Chairperson Piselli explained that a request was made to make a determination on whether the proposed site plan changes are minor or major.

Ned Bolth of Richardson’s Farms reviewed the proposed changes to the existing landscaped island and curb line to accommodate the crosswalk across Rte 114.  The main purpose is for beautification, but will also help define the pedestrian way and remove some existing visual obstructions.  In addition, lights will be added for exterior lighting of the existing sign.

Chairperson Piselli commented that the ICDRC voted in favor of the changes as stated in their correspondence dated 3/28/13. (Letter on file.)

MOTION: Made by Craig Hartwell to waive the requirements of 9.5.6 and allow the petitioner to proceed with the proposed modifications.  Motion seconded by Robert Aldenberg.  Vote 4-0 in favor, motion carried.

Craig Hartwell motioned to adjourn, motion seconded by Robert Aldenberg.  Vote 4-0 in favor, meeting adjourned.

Chairperson Piselli reopened the hearing.

295 North Main Street, Map 9, Lot 64-Attorney Alan L. Grenier-Appeal
Chairperson Piselli stated that the Board was advised by Town Counsel to take no further action on the appeal.

MOTION: Made by Craig Hartwell to take no further action on the appeal for 295 North Main Street, Application #950.  Motion seconded by Robert Aldenberg.  Vote 4-0 in favor, motion carried.

Meeting adjourned at 9:48 pm.