Town of Carlisle, MA - Minutes of 9/10/07 PB meeting

Continued Public Hearing on application of Omnipoint Communications, Inc. for a special permit and site plan approval under Sec. 5.9 of the Carlisle Zoning Bylaws to install, operate and maintain a personal wireless communication facility at 1022 Westford Street (Map 18, Lot 42A) on property owned by Lawrence A. Sorli.

Request for release of security and Certificate of Completion for Great Brook Estates Definitive Subdivision Plan, 195 Rutland Street (Map 26, Lots 18-1, 18-2, 18-3, 18-8, 18-A, 18-B, 18-C, 18-D, 18-E, 18-F, and Parcels 18-G & 18-H), or extension of time to complete said subdivision [Request of Betsy Goldenberg]

Joint Public Hearing with Carlisle Tree Warden of a request to remove certain trees within the Town’s right of way along the east side of Concord Street, from Church Street to Bingham Road, and along the west side of Lowell Street, from the Police Station to Morse Road, both designated scenic roads, under the provisions of the Scenic Roads Bylaw (Art. XII & MGL Ch. 40, S. 15C) and the Public Shade Tree Act (MGL Ch. 87, S. 3). The proposed removal of trees is to construct a footpath adjacent to the roadway, which will also include the renovation and relocation of certain stone walls within the right of way

Chair Michael Epstein called the meeting to order at 7:33 pm in the Clark Room at Town Hall. Board members Kent Gonzales, Greg Peterson, Brian Larson, Ken Hoffman, Marc Lamere, Carol Nathan, Associate Member Tom Lane, and Planning Administrator George Mansfield were present. Associate Member David Freedman arrived at 7:37 pm.

Gretchen Caywood, assistant to the Planning Administrator, Alan Carpenito (BOS), Brian Grossman (Prince, Lobel, Glovsky and Tye), Peter Yelle (Cross Street), Jen Bush (Church Street), Annette and John Lee (Lowell Street), Sylvia Sillers (Concord Street), Larry Sorli (Westford Street), Nancy Pierce (Westford Street), and Bob Zielinski (Carlisle Mosquito) were also in attendance.

Epstein appointed Freedman as Chair for this public hearing. Freedman reported that the PB is waiting for response from Town Counsel to a list of questions put forward concerning this application. He added that since the last PB meeting on July 23, 2007, a list of questions was also forwarded to the applicant, and their response had been distributed to the PB before tonight’s meeting. Freedman pointed out that the applicant has responded to tree cover issues, indicating that the vast majority of the area around the proposed site is cleared of vegetation, and that Carlisle’s Wireless Bylaw (Section 5.9.3.16) limits the maximum tower height to 80-feet when significant tree cover is lacking. Freedman pointed out that some have questioned the applicability of this 80-foot limit when a waiver to the 900 foot setback is sought. Freedman confirmed at the meeting that the site property owner, Larry Sorli, would be agreeable to construction of a tower up to 90-feet in height, which, according to data supplied by the applicant, would enhance the coverage area and would also likely enhance co-location potential.

Freedman pointed out to the applicant that while the drive test data for an 80-foot tower still indicate a gap in coverage along Route 225, this anticipates a certain extent of coverage by the yet to be built facility in Town Center at 27 School Street. He asked if the applicant would consider the use of small form factor technologies (SFFT) such as distributed antenna systems (DAS) to cover any resulting gap area. Grossman said that once both sites are up and running, it is possible that some antenna setup optimization could cover the gap, avoiding the need for additional equipment. Only once the two sites are operational can the technology needs be discerned. Grossman added that such hopes are out of the question for a 60-foot antenna at the Sorli site, as any resulting coverage gap would be too large for antenna adjustments to alleviate.

Freedman asked the applicant how they are defining their coverage needs on Route 225, since an 80-foot tower would still likely leave a coverage gap. He asked whether there is an overall plan for enhanced coverage in the area beyond that which is predicted with an 80-foot tower. Grossman said that the applicant’s primary objective is coverage on 225, with a secondary objective of broader coverage on the feeder roads. He said that an 80-foot tower would provide some coverage off 225, and that there are currently no plans for additional sites in the immediate area. When Larson asked about any business relationship with Spring/Nextel, the applicant said that there is no direct co-location relationship with that company, but that he believes that Omnipoint has a lease agreement with the First Religious Society for a co-location at the proposed site.

Peterson asked the applicant to explain his comment, included in recent written input to the PB, that MA courts have consistently ruled that a co-location condition for permitting is unreasonable according to MGL Sect. 40A, pointing out that the PB consultant, David Maxson, has indicated that such co-location conditions have been required by some towns. Grossman explained that not every condition that is inconsistent with 40A is challenged by an applicant, particularly if it is easy for them to meet. Sometimes the applicant may decide it is easier to comply if readily possible, rather than contest the requirement. Grossman said that in the case of this application, it is unreasonable to tie the applicant’s actions to the co-location of another company, especially when there is a significant need for coverage in the area. He said it would be equal to a forced delay, which is contrary to the intent and purpose of the Telecommunications Act. When Peterson suggested a condition requiring good faith efforts toward co-location, with regular progress reports, Grossman said that the applicant would be against this

also, as it is a gray area for demonstrating compliance – i.e. when is the effort enough? Grossman suggested his client may agree to a condition to send out letters by certified mail soliciting co-location, with return documentation forwarded to the Town within a specified timeframe. When Epstein asked if the applicant had ever agreed to a co-location requirement in other situations, Grossman said he was not aware of any in this eastern Massachusetts area.

Epstein noted the applicant’s written statement that they cannot commit to a specific technology for coverage of the gap, and asked the applicant for an explanation. Grossman said that his client would not agree to use of a particular technology ‘up front’, but would need to assess the situation when the actual gap condition could be determined, and would submit a separate application to the PB. Epstein confirmed with Grossman that the applicant would agree to an 80-foot tower without construction delay, but extendable to 90-feet if a co-locator is found. However, they would not agree to a 60-foot tower, extendable to 80 if a co-locator is found, as a 60-foot tower will not meet the applicant’s needs.

Freedman confirmed with the applicant that in terms of minimizing visual impact, the applicant has presented all his proposed options, mainly painting the monopole to suit the property owner. He then opened the hearing to the public, at which time no comments or questions were forthcoming.

Chair Epstein and Planning Administrator Mansfield announced that due to a death in the family, the Chair of the Pedestrian/Bike Safety Advisory Committee, Deb Belanger, will not be attending this evening, and there will not be a presentation for this hearing. Chair Epstein opened the hearing but said that no public testimony would be taken.

Chair Epstein explained the purpose of MGL Section 15C, the Scenic Road Act, and that the Town bylaws identify Lowell Street and Concord Street as scenic roads. He explained the PB’s jurisdiction based on these laws, which is limited to approval of tree removal and stone wall relocation, and added that a joint hearing with the Tree Warden is necessary for addressing proposed tree removal. Chair Epstein then asked the public for procedural questions only.

Jenifer Bush (Church Street) asked whether a stipulation can be made that new trees be planted to replace those removed. Chair Epstein said the PB would certainly consider these types of compensatory actions, and this is referenced in the PB’s Rules and Regulations pertaining to Scenic Roads. He added that while some PB members had conducted a sitewalk, they had some difficulty identifying all trees and walls slated for removal and alteration. He reported that a site visit is being set up, with a tentative date of Saturday, September 29^th, and encouraged the public to participate.

Planning Administrator Mansfield reported that the Conservation Administrator had forwarded a memo to the PB reporting that the Order of Conditions for this project has not yet received its Certificate of Compliance. ConsComm has not determined whether the Order of Conditions has been fulfilled yet. To receive the Certificate of Compliance, the applicant needs to certify that the work is in compliance with the Plan of Record. The work includes a wetland crossing, a replication area, and grading associated with the subdivision road, common drive, fire cisterns, and drainage system. Mansfield added that since the wetland crossing involves the main road that leads into the development, that issue is relevant for the PB, but should not hold up the Board’s release of the subdivision security. However, Peterson pointed out that if ConsComm does not issue a Certificate of Compliance, then the Town cannot accept Great Brook Path as a public way. Chair Epstein recommended passing the ConsComm memo along to the applicant as a reminder.

Larson suggested that once the preliminary outline of the RFP is reviewed by David Maxson, it should be reviewed by the PB before going forward for submission to the Board of Selectmen. After discussion, the goal of October 29^th PB meeting was set for PB review of a preliminary RFP. Larson confirmed that the RFP will limit the height of proposed facilities to 90-feet, with special informational requirements for approval of a facility greater than 60-feet high.

Planning Administrator Mansfield reported that an application for a Definitive Subdivision Plan had been submitted to the PB for Hanover Hill, a proposed subdivision off Westford Street on land between Virginia Farme Lane and Curve Street. The PB scheduled the opening of the public hearing for Monday, October 22, 2007 at 8:30 pm. Chair Epstein suggested that a site visit be scheduled for soon after that date. Mansfield offered to compile a list of key issues discussed related to the Preliminary Subdivision Plan.

After a discussion regarding low-impact development (LID), Chair Epstein asked Planning Administrator Mansfield to speak with Nitsch Engineering regarding the possibility of their providing a courtesy one-hour seminar on LID for the PB. It was also suggested that the PB consultant for wireless, David Maxson be asked to provide a similar seminar on the topic of wireless facilities.

Regarding the use of GIS, Planning Administrator Mansfield reported that the PB has recently had several requests to utilize and/or add to the GIS database, and that a protocol is needed for allowing others access to the database. The requests are from the Trails Committee, the Carlisle Conservation Foundation, and the Mass DEP. Mansfield pointed out that the Town has no GIS administrator or IT administrator. Thererfore, since the GIS database was developed by the PB, it is up to us to put a protocol in place. Lamere offered to assist in this matter, and recommended talking with Kevin Smith (Trails Committee), who is knowledgeable in GIS.