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TOWN OF WATERTOWN
Board of Appeals
149 Main Street
Watertown, MA 02472
Telephone (617) 972-6428
Harry J. Vlachos, Chairman Facsimile (617) 926-7778
Melissa M. Santucci, Clerk www.watertown-ma.gov
Stuart J. Bailey, Member
Deborah Elliott, Member
Carlos Fernandez, Member
Richard Moynihan, Alternate
On Wednesday evening, March 25, 2009 at 7:00 p.m. in the Council Chambers of the Administration Building, the Zoning Board of Appeals held a public hearing. In attendance: Harry J. Vlachos, Chairman; Melissa M. Santucci Clerk; Stuart J. Bailey, Member; Deborah Elliott, Member; Carlos Fernandez, Member; Richard M. Moynihan, Alternate Member; Nancy Scott, Zoning Enforcement Officer; Danielle Fillis, Senior Planner; Louise Civetti, Clerk.
Chair Vlachos opened the meeting, introduced the board and staff, swore in the audience, and asked to postpone voting on the January 28 (2/2/09) minutes. Ms. Santucci motioned to accept the postponement. Ms. Elliott seconded. Voted 5-0.
Chair Vlachos announced that the cases will be taken out of order from the agenda. Ms. Santucci read the legal notice for the first case:
Peter J. Kaloostian, 575 Mt. Auburn Street, Watertown, MA 02472, herein requests the Board of Appeals grant an Amendment to Special Permit Finding, #97-35, to construct a front one-story sunroom addition 13.6?x33.8? wrapping around westerly side 13.6? x10.7? increasing restaurant seating from 29 to 59 seats and further alter entrance/exit and extend paved parking area to accommodate 21 parking spaces (inclusive of 1 HP space ) at Uncommon Ground 575 Mt. Auburn Street, located in the LB (Limited Business) Zoning District.
Chair Vlachos indicated that a letter was received today from an abutter and Peter Kaloostian, owner and petitioner has requested a continuance on this case to the April meeting to respond to the requests. Mr. Kaloostian agreed. Chair Vlachos instructed him to sign an Extension Agreement that will be prepared by Ms. Civetti.
Ms. Santucci motioned to continue the cast to the April 29, 2009 agenda. Ms. Elliott seconded. Voted 5-0 continued.
Ms. Santucci read the legal notice:
Ralph Pesaturo, 23 Everett Avenue, Watertown, MA herein request the Board of Appeals to grant a Variance in accordance with §5.04, Table of Dimensional Regulations, Side Yard Setback, Zoning Ordinance, so as to permit construction of a single-story enclosed "connector" from new rear addition to existing detached garage, proposing a side yard setback of 6.8?, where 10? is required for principal structures at 23 Everett Avenue, located in the S-6 (Single Family) Zoning District.
Ken Leitner, Attorney, representing Mr. Pesaturo, explained the request for variance, including a brief history of the
site. They are attaching the garage to the principal structure with a breezeway, thereby changing the garage from an accessory structure to part of the principal structure. The existing garage then becomes non-conforming with a side yard setback 6.8?, where 10? is now required, therefore, needing this request for variance.
Ms. Santucci noted the plans show a new kitchen. Attorney Leitner clarified that the old kitchen will be removed and there will not be two kitchens. Plan A2 shows the existing kitchen will be "demoed". Ms. Scott suggested a condition regarding one kitchen in a single family home.
Mr. Bailey noted the shed is not showing on the Plot Plan. Attorney Leitner stated that the shed is being removed and suggested a condition stating that.
Mr. Fernandez asked if the deck is added to the coverage. Ms. Scott stated that it is not included in building coverage.
No one spoke from the audience.
Chair Vlachos read the Planning Board Report and Staff Report recommending approval under the four criteria of a variance. The Planning Board voted unanimously to grant the variance. He is willing to adopt the recommendations.
Ms. Santucci motioned to accept the recommendation by the Planning Board to accept the side yard setback based on the fact that this meets the criteria set out in the ordinance and with the conditions of the shed on the February 16th plot plan shall be removed and as this is in an S-6, Single Family Zoning District, only one kitchen is allowed.
Ms. Elliott seconded. Voted 5-0. Granted.
Dianne L. Polseno, President, Cortiva Institute: Boston, 103 Morse Street, Watertown, MA, herein requests the Board of Appeals to grant an Amendment to Special Permit/Special Permit Finding #06-59, Condition #1, Sunday Operations, so as to permit educational classes to be held on Sundays, 9:00 a.m. - 6:30 p.m., including July and August for a maximum of 60 students at any one time, and further to restrict conducting the Professional Clinic and Graduation on all Sundays and limit the Intro Workshops to 12 p.m. to 4 p.m., at 103 Morse Street, located in the T (Two-Family) Zoning District.
Chair Vlachos swore in Dianne Polseno.
Dianne Polseno, President, Cortiva, read a statement requesting a change to condition #1, for a maximum of 60 students per year noting the changes they have made to their Sunday schedule. The sole purpose of their request is to preserve the fiscal viability of their school. The part-time classes include weekends with most students working full-time. Their neighborhood conduct policy is part of their student contract. Their neighborhood meetings conclude they are good and respectful neighbors. Closing the school would have a negative impact on the community economy and their 15 employees would add to the unemployment, etc. The number of students on Sundays does not change, their request only changes the reason they are in the building.
Mr. Fernandez asked what the number of clients would use the professional clinic on Sunday. Ms. Polseno said there were 6 professionals with clients from 9 am to 6 pm with an hour session and they were booked most of the time; however, they closed the clinic as it was not as successful as they wished it would be. They do not have graduations on Sundays any longer and their introductory workshops do not run every week from 9 to 5, they are only offered once a month from 12 to 4 pm.
Mr. Bailey stated the biggest change will be during July and August, going from zero to sixty (students). Ms. Polseno said they had two workshops a month in the summer to one a month. Mr. Bailey feels it is quite an increase.
Chair Vlachos clarified that the change is requested for financial viability reasons and how would this board measure that. Ms. Polseno said out of 220 students, 120 are in class on Saturdays and they are at full capacity and they may not be able to continue to offer weekend classes if they cannot hold classes on Sunday, which would have 60 students per year.
Chair Vlachos asked about the founder, Ben Benjamin. Ms. Polseno said he owns the building and they lease it from him. He is no longer involved with the school. Maryanne DiRoberts, the prior president has not been involved in two years. Chair Vlachos' concern is permit creep, which means every couple of years a new owner comes back to request a little bit more from the board, which is already happening with this location. Mr. Benjamin made a plea to this board about how hands-on he was and he'd be walking around the neighborhood with handbills, etc. and then he sells out and is gone. This impacts his decisions. Ms. Polseno said they are very diligent about their involvement in the neighborhood and the neighbors had stated they would prefer this school than something else in the building. One neighbor who was opposed to them being there recently stated that she doesn't even know they are there now. Sundays would not have a negative effect on the neighborhood and their student clinics are very popular in the community. There are many elderly people who could not afford massage and are Watertown residents that come to their clinic. She doesn't feel she is asking for more because she has not asked for anything before. She has been in the massage business for 20 years and knows the importance of this facility on the weekends.
Ms. Elliott asked about parking off-street on Sunday. Ms. Polseno said they lease 60 spaces from the Hibernian and they have up to 50 in their own lot, total of 140.
Mr. Bailey asked if they anticipate the maximum number of students will be 60 - or will they come back in a year for more. Ms. Polseno said she does not as classes are normally up to 30 students in size. They have starts four times a year: January, April, July and October. They will only have to offer Sundays, twice a year (30 students a class, 60 per year), every Sunday and every quarter they have a two-week break (there are no students in the building for two weeks). Their programs are 9 months and 12 months long, they cannot indicate specific Sundays.
Chair Vlachos wanted to know what would happen if they had to run 4 classes on Sunday to stay in business. Ms. Polseno stated that if she thought that would happen, she would have asked for that and she feels very confident and will be fine with 60 students.
Chair Vlachos commented on the cost of (off-site) parking. Ms. Polseno said the parking costs them a fortune. Chair Vlachos said that cost will need to be covered with more students. Ms. Polseno said they cannot afford not to have Saturday classes and their building is maxed on Saturday and their only other option is to offer a Sunday class.
Chair Vlachos pressed on asking if they had 60 students they would not be in any financial peril. Ms. Polseno said she doesn't know that in this economy. She believes they will be fine. Chair Vlachos asked, given the cost of the leases by Mr. Benjamin, etc. and all of those costs would be covered. Ms. Polseno said if the building had the room for the two extra classes on Saturday, she wouldn't be here requesting this. 60 students a year would be what is needed.
Ms. Santucci asked if the Sunday students go to school other days. Ms. Polseno said they go in the evenings. There are 220 students enrolled now and they want to increase that by 25% and they do have the capacity to have 300 students in the building.
Mr. Fernandez stated that the original amount of students was 220. Ms. Polseno said that Mr. Benjamin told her he has had up to 300 students in the building. Mr. Fernandez said the statement was that the maximum occupant load on the building would be 300, but at no time has there been that many students. Ms. Polseno agreed that she has had up to 250 but not 300.
Mr. Fernandez asked how many of the 220 students would they be losing. Ms. Polseno said that she needs 60 students a year as that is what they would be needing the extra Saturday class for. She would normally start a class of 30 students on a Saturday so if she starts it on a Sunday, that would take care of what she needs. She needs to add classes for those students that work full-time and that would be the most popular class of 3 evenings a week with one weekend day.
Ms. Scott asked what the Student Clinic is and does it happen on a Sunday. Ms. Polseno said she mentioned the Professional clinic that closed. The public does go to the Student Clinic but that does not have to be on a Sunday.
Ms. Scott said that the Student Clinic is very popular and if there are 60 students, how many clients would there be? Ms. Polseno said there would be 60 clients. All students are required to do clinics and every quarter it differs on when the clinics would be held.
Wendy Stone, Scheduler, stated that every student has a clinic class and each term has different clinic times. This terms has clinics on Monday, Tuesday and Saturday. They do not have more than 15-20 students in clinic at one time. Therefore, Sunday clinics would only have 15 participants at a time with the maximum being 40 on a Sunday, however, they prefer to have clinics in the evenings.
Ms. Scott stated that the specific request did not mention clinics and would they be opposed to having no student clinics on Sunday. Ms. Poleno said the clinic is part of the class, that is why they do not mention it. They would have to consider the schedule to say whether or not they could eliminate clinics on Sunday.
Dan Rosati, 18 Jewett Street said they first stated they needed Saturdays and Sundays to run the school and to buy the building. They did not need Sundays after-all. He enjoys his quiet Sundays. He said Mr. Vlachos feels the same was regarding once they get their foot in the door, they then continue to ask for things. He did his own calculations on traffic. He sat on the street for hours on end at the beginning and they were getting 600-700 cars an hour. This will cause another 96 cars per week. They have 4700 clients a year, that means 64,000 cars. Their financial situation - their income from 240 students per year, $12,000 per student for tuition, plus the clinic at $40 per client, minus the agreement with Hibernian at $55,000 a year for 6 years, they are getting $3,000,000 and it is going to keep getting bigger by coming in on Sundays. He said their parking lease and their rent from Mr. Benjamin would cost a fortune to buy out. He submitted a survey of all their competition with 7 schools. He called all of them again to see what their class schedules are and none of them has a need for a Sunday operation. He doubts there is a financial need and the traffic will still find it easiest to come down Morse Street. He added that an abutter complained to him that she is still having problems with speeding and the school cannot do anything about it. He thinks it is not the students, it is their clients because they don't know where to park.
Mark Sideris, 30 Union Street, member of the Neighborhood Advisory Committee, and speaking as a neighbor, said they were skeptical of the school at first and they did have parking issues at the start; however, those issues have been addressed. Mr. Benjamin sold these people the business with a lease from the Hibernia's for $55,000 per year because he was desperate. The board should consider granting the request with a 6 month or a year trial and then have them come back in front of the board for review and ask this committee if there are any issues and rescind the Sunday hours if it doesn't work out. The new director should be given a chance.
Ms. Scott asked about the reactions of the committee. Mr. Sideris stated they have not always been together and recently there have only been 3-4 people coming to the meetings but they are comfortable with this proposal including knowledge of the walk-in clinic.
Angie Kounellis, 55 Keenan Street, asked if the Hibernians has a function, is there a stipulation in the lease that the school can maintain their parking. She then asked about the interest of the owners of the property and the administrators and the turnover that has already taken place should be a concern to the community.
Dennis Duff, 33 Spruce Street, appreciates the care and concern the board provides to all communities. He wouldn't want anything to go on Sundays and knows it is a 1950s mentality but respectfully requests the board to use their diligence on what the neighbors say.
Chris Higgins - 125 Morse Street, an abutter said they are good neighbors and he doesn't have any issues with them opening on Sundays and his bedroom window faces the parking lot. His only problem in two years was the taking out of trash in the evenings. He owns the property and his family has lived there since 1973 - the school is a better choice than something else in that building.
Dan Rosetti added that when the Hibernians has a wedding on Sundays, the overflow parks in the Stop & Shop parking lot. The property is owned by a real estate company in Brookline and they have put signs up to restrict people from parking. Mr. Benjamin is trying to sell the building - he has witnessed real estate people in there.
Mr. Vlachos asked about the other massage therapy schools and their operations on Sundays. Ms. Polsano said she doesn't know of other institutions but she used to work at Bancroft and they have very active Sunday education. This location does not have the space for more classes on Saturday. When Muscular Therapy was in Cambridge, they had Sunday classes. The building has been for sale for a while. They have a lease that will ensure they can stay there no matter who the owner is. Their lease has 4-5 years on it.
Ms. Polsano read a letter from abutter, Kate James stating they support Sunday operation and the school has been a good neighbor - she would also challenge anyone stating more traffic will be generated by the Sunday hours. She is the owner/occupier of 106 Morse Street and owner/landlord of 108 Morse Street, across the street.
Ms. Polsano addressed the Hibernian parking issue stating that they are provided a list of events that are scheduled for that month when they can not use the parking at all. They make provisions for that in advance and they have use of 55 spaces in the lot that abuts the school and the students can park on the street in Newton, on Jackson Road.
Ms. Elliott asked how often the Hibernians restricts the usage. Ms. Polsano said they only have 60 spaces at the Hibernians and students will take public transportation or park on Jackson Road. Mr. Fernandez asked what the frequency of the Hibernians restricting usage is. Ms. Polsano said the students park on Jackson Road every week, particularly on Saturday.
Mr. Fernandez asked if the clients are educated on where to park. Ms. Polsano said the parking lot is reserved for clients. Mrs. Polini called the school twice in the time she has been there where students have parked where she could not get out of her driveway and it was students.
Chair Vlachos declared business mode and read from the Planning board report recommending approval. Ms. Santucci asked why the report doesn't show the discussion from the Planning board. Ms. Fills confirmed that the Planning Board did not have any discussion as there were not any concerns and the report is not the minutes of the meeting. Ms. Santucci stated that the report format is not what the board is used to seeing. Ms. Fillis stated that the format is in a format similar to the way other communities do it. The report reflects any concerns the board may have.
Chair Vlachos expressed a concern of "permit creep". When the lease is over, the building is sold, and another user is going in there, they are going to use the same analysis and the use may be more offensive as another school. Mr. Fernandez is in support of the application but would want the board to consider a 12 month period of time period of review. Mr. Vlachos isn't sure one year would be enough in this economy. Mr. Bailey stated 12 months and then ask for an extension of the review period. Mr. Vlahos reiterated that this use is a softer, more cooperative use.
Ms. Santucci asked for clarification on the parking - the staff report states 96. Ms. Polsano stated that on Saturday and Sunday, they are the only active use in the building and they count the entire parking lot for their use at 55 spaces and 60 at the Hibernian.
Mr. Higgins stated that there are 15 parking spaces that the town intended for public use parking in the rear of the lot - it is not used frequently.
Ms. Santucci asked if she was confident that they have enough parking for the students and the clinics. Ms. Polsano stated that the overflow would go onto Jackson Road in Newton if there were any. She patrols the area to be aware of where her students are parking.
Ms. Elliott asked when the classes would begin on Sunday. Ms. Polsano said they may not have full classes until October but she would like to begin in July. Her preference would be to review this one year from October.
Ms. Scott asked about the hours of operation on Sundays from 9:00 a.m. to 6:30 p.m. Ms. Polsano said the classes run from 9:30 to 5:30 - the students need time to gather their stuff and get out. There is no graduation classes on Sunday. They currently have usage on Sundays for Introductory Workshops.
Ms. Scott reiterated Sunday classes would be from 9:00 a.m. to 6:30 p.m. and the clinics . Ms,. Polsano said there may be a morning session and an afternoon session but the clinic would run with the class. 15 students maximum would have clients = 30 clients maximum. The professional clinic is no longer in session. CEW permitted on Sundays (continuing education workshops). There may be 15 to 20 maximum. No CEW in July and August on Sunday. Introductory Workshops one Sunday a month, year round from 12 to 4 p.m.
Chair Vlachos said any of these points are up for review and anything can be changed. Feedback from the public and the Zoning Enforcement Officer as to whether or not there were any negative effects from the changes in the Sunday hours is what will be looked for in October 2010. Mr. Fernandez stated that if Ms. Polseno is policing the area and finds students illegally parked, to make a note of those items and bring them to the review - self reporting.
Mr. Ferandez motioned to approve the application as noted by Ms. Scott with all the provisions as stated with the trial period and qualification of the original permit with review at the October 2010 ZBA meeting. Seconded by Ms. Elliott. Voted 4-1 with Ms. Santucci voting against.
Chair Vlachos announced that they will take the cases out of order as there may be more people here for 462 Mt. Auburn Street than there are for 617 Arsenal Street.
Roger D. Linquist, Manager, MetroPCS, 2250 Lakeside Blvd., Richardson, TX 75082, herein requests the Board of Appeals grant a Special Permit Finding in accordance with §4.06(a), Nonconforming Use & Building/Structure; Special Permit in accordance with §5.14, Wireless Telecommunications Facility, Zoning Ordinance, and Use Variance from Telecommunications Act so as to install 6 panel antennas - 2 attached to existing elevator penthouse, 4 mounted to proposed 10?x 16? faux screened penthouse where 3 equipment cabinets will be installed on the rooftop at 462 Mt Auburn, an apartment building located in the T (Two-Family) Zoning District.
Brian Grossman, Prince, Lobel, Glovsky & Tye, said there is an existing carrier at this site that was issued a use variance by this board and MetroPCS is seeking similar relief. He stated the request for Special Permit is a pre-existing, non-conforming use in the T-zoning district and in the alternative is seeking a use variance for the T-Zone.
Ms. Scott clarified that a Special Permit is required under 5.13(a) and Variance for use under 5.13(a).1, which allows use in a T zone and contains residence.
Mr. Grossman continued with the requirement of 6 panel antennas with two of the antennas on the existing penthouse and four on the faux penthouse. The faux penthouse is to provide screening for the equipment cabinets as well. The coax cable would run on sleepers on the lower roof and vertical cable painted to match the building. The facility is unmanned and visited one to two times per year. The noise is reduced as they will be enclosed no other factors. Mr. Grossman covered the criteria points.
Ms. Santucci asked about the penthouse height and then the antennas on top of it - what is the height. Ms. Scott said the penthouse is accessory and is allowed within 15? - including those not in direct use with the building - a typical accessory.
Mr. Fernandez said drawing Z-3 noted 8? tall (penthouse) but elevation drawing Z-2 states 10? above roof level. What is BTS dimension? The penthouse can match that height but not more than that. Attorney Grossman said the cabinets have to be at least 6? tall for roof clearance. And they need clearance above the cabinets and the driver on the height of the penthouse is where the antennas are going, as well. There are 4 antenna with the penthouse and two on the edge and two further in - Brian Eicens, RF Engineer will testify that the clearance is necessary for the furthest two. The antennas closest to Mt. Auburn Street are not an issue. The antennas that are facing towards School Street and Winsor - they are on the opposite side of the penthouse. Each antenna looks to a different direction and all 4 cover the 360 degree. Each of the 6 antenna's covers approximately 33 degrees. These are sectorized antennas and are focused towards a different direction and you can tweak this type as opposed to a whip antenna. This is a difficult spot - there is a list of several alternative sights with RF driven reasons which do not meet the coverage requirements. MetroPCS launched its service on February 4, 2009 in the Boston area. He reviewed these alternatives with the board.
Mr. Fernandez requested to know the amount of rent being paid. Mr. Grossman said it is a private contractual agreement and he does not know.
Mr. Ferandez asked why T-Mobile has two antennas there and they are proposing 6 antennas. Mr. Grossman said their requirements may be different - each network is different. It could be a network design issue. He does not know if more antennas cost more than less antennas. He cannot answer questions on design as they relate to cost. Mr. Ferandez wants to know why this design is for 6 antennas and the competitor has two antennas.
Brian Eicens, RF Engineer stated the design is a new concept in RF technology and a better way of reusing their spectrum. They are limited on spectrum at 10 MHz and with more sectors, you can reuse the frequencies more often and alleviate the capacity and the need for more in the future. The Mhz is their license with AWS with the FCC. Suburban environments are normally 6 sector sites - rural areas don't need 6 antennas. This provides for better in-door coverage. T-Mobile uses a different spectrum, they are lower and they have more sites in the system. He explained the color coverage maps.
Attorney Grossman handed out new coverage maps for alternative sites and explained the reasoning why these alternative sites would not work for this application.
Brian Eicens reviewed his qualifications as an RF Engineer. He usually covers all towns in Middlesex County.
Mr. Fernandez said the yellow dots are distressing and need to be presented differently. Attorney Grossman stated that they have presented the planned facilities map to the board before and they do not want to drop things off of the maps now. Mr. Fernandez argued that the same plan is used on all of the maps and it is confusing.
Attorney Grossman did not create a coverage plot for sites that were not possible. Perolli, Coolidge School, Bottled Liquors were the sites they discussed and they did not discuss Brigham House, Oakley Country Club or Tufts Health as they were not possible sites.
Ms. Elliott stated that the next case on the agenda shows a Frequency Map of the Arsenal Mall and wanted to know if that was on their maps. She believes it is completely overlapping coverage for both areas. Attorney Grossman stated that the planned network is shown and there aren't any MetroPCS coverage areas now. Mr. Eicens stated that the Bugaboo Creek map shows a coverage gap in that area.
Ms. Santucci asked why the equipment cabinet is being installed on the roof and not in the basement or the ground. Brian Wilson, Site Acquisition Representative, Metro PCS, stated that the he finds, leases, and gets sites approved by MetroPCS - this facility has parking on the ground level and there is no interior space for the equipment. T-Mobil has the same situation and their equipment is on the roof, as well. Ms. Santucci questions the 10?x16 structure and it is a secondary use to the building. Attorney Grossman stated that they were trying to integrate the equipment to the building. They did not want to put in an equipment platform that would be visible - they camouflaged it according to the zoning ordinance requirement. Mr. Fernandez said there is room on the roof to move the structure so it will be less visible. Mr. Wilson said they have to have separation of the T-Mobil antennas due to interference. They have to be vertically above and below T-Mobil. The structure they proposed provides separation, conceals their equipment and provides for their antennas.
Angie Kounellis, talked about her correspondence from 1991 regarding cell antennas and how the town should be looking at what direction to go in. She said that even though there is an ordinance, the cell antenna companies can override the ordinance and make a mockery out of it. The Zoning Board staff sends out notices to abutters and abutters to abutters of the site but they are only sent to the owners of the properties. Renters are not notified. Tenants current and future are not aware. There is signage on the door to the roof of this building that states "Danger". We cannot talk about health hazards; however, the sign states the technicians should not cross the path of the waves. What about the awareness to the tenant on the top floor? Where is the disclosure for the tenant? The property owner knows. These are accessory attachments and the tenant would not expect it. At the Planning Board, the attorney for the petitioner stated that sending out notification would mean there is something wrong with placing the antennas on the building. She argues that it is only disclosure. She believes citizens don't attend the meetings regarding antennas as they feel it is a done deal and they cannot do anything about it because Federal Regulations do not allow talk about health issues. She believes Watertown is a magnet for antennas.
Chair Vlachos addressed the notice requirements stating that the Mass. General Laws dictates the notices and it is beyond the boards' ability to go beyond that. He does not know what the numbers are for other cities and towns (for cell antennas). This is a volunteer, unpaid board and we all have full time jobs - we cannot deny someone's petition without being grounded in the law or the town faces a law suit.
Cindy Launch asked if the board has done what they can and she is concerned with safety. The board should have someone on their side as an RF engineer. Chair Vlachos agrees that the board can hire an RF Engineer but the board cannot deny a request on health issues. Ms. Launch wants the antennas to be placed in safer areas. Mr. Moynihan added that the petitioners bring in their own engineers and experts to evaluate their sites - this board doesn't have the authority to fund any such experts. Mr. Fernandez said there is a major flaw in the ordinances and we do not have the ability to question or modify these requests except in the simplest terms. He doesn't understand why they are proposing 6 antennas where only two are required for the other carrier. Ms. Launch asked who would authorize hiring an expert within the town budget? Mr. Fernandez said the Planning Board suggests Ordinance changes to the Town Council and they vote on the ordinances that the Zoning Board adheres to. Ms. Scott confirmed it is the procedure to change ordinances and the Board of Appeals can hire their own RF Engineer and request MetroPCS pay for it - a peer review.
Ms. Launch said this site is bad as the cell sector antenna goes straight out towards the horizon and the best siting when everything is lower than the antenna. There is a hill on School Street that the cell sectors are pointing into people's houses. She had a measurement done on her house by Cambridge Environmental and she lives 600 feet away from T-Mobil cell antennas and the numbers for radiation read - 20 years ago the basic reading would be .02 microwatts per centimeter square for an urban area. The first floor of her house today is .04 - the second floor is .14 and attic is .25. Her house is just up the hill. Cambridge Environmental said an active cell phone being 3? from you would be a reading of .3. The sector antennas are going on all the time.
Chair Vlachos repeated that the board can not deal with anything the FCC deems not a safety issue. Ms. Launch said the readings will be higher when MetroPCS is installed. The FCC states that full coverage is not required - only adequate service needs to be provided to the public. MetroPCS is being installed at the Arsenal Mall and the town could see how much coverage they are getting from that one location. She suggests the town hire an independent RF Engineer to tell the town where the safe locations are to place the antennas. Chair Vlachos reiterated that the board cannot discuss health issues - which is everyone's first thought, but the board is powerless to talk about health issues although we do not know what the effects of the antennas will be in the future. All sites within the town are supposed to be "safe".
Mr. Fernandez suggested the town look into sites that the ordinance states not to look at sites within 50 feet of a residence. Is this a breach of contract for the tenants of the apartment building because the lease does not indicate there are cell antennas on the roof within the 50 feet of a residence? Can the board accept the one-sided evidence that is brought before us. He wonders if the antennas on the roof a breach of contact? Ms. Scott stated that this would be between the owner of the building and the tenants. Mr. Fernandez said the town should be an advocate for the tenants that are living within the 50? limit that the town has authorized in the ordinance. Placement in the mall is not near a residence. There is a flaw in our ordinance as we also say that they cannot be within certain districts.
Ms. Fillis said that the Planning Board said the Wireless Communications ordinance is up for challenge at the next round of amendments to the zoning ordinances.
Chair Vlachos said if we deny a petition and we end up in court, it cost the taxpayers more money to attend the litigation. Ms. Launch said it sounds like the board is no interest in doing the least harm possible - the precautionary approach of trying to keep these in areas where people don't have children. It would behoove the town to hire an RF Engineer.
Mr. Fernandez said looking at each case is an error and we should look at the town as a whole - the Planning Board, the Council, the board should determine where in the town these should go. He said he asks about rent because by default Watertown has more antennas-not a significant amount more, but Watertown charges a lower rate. He reiterated that we need to comprehensively look at this. He stated that a business plan decision is to purchase the bandwidth and they have a narrow bandwidth and that is why they have 6 sectors.
Ms. Launch said she read from a document entitled "FCC Guidebook for Zoning Board Officials". She said they have a checklist for items to be considered for multiple carriers at one location as they might interfere with each other like the cumulative effect. Mr. Eicens said she is referring to the emissions report or the EME, where you take a probe and measure - which she had done at her house and ask that it be underneath FCC limits and the numbers she stated are less than 1% of FCC requirements. Attorney Grossman said the site will comply with all FCC regulations and emissions. A theoretical calculation is done with the current carrier plus MetroPCS within the FCC guidelines. You could put 1000 carriers at the same site and not exceed the FCC guidelines. He gave other scenarios for the guidelines and more specifics.
Mr. Fernandez refers to tab 8 of MetroPCS's submission stating that the FCC says don't bother sending anything to us because we won't check it for compliance. FCC OET Bulletin 65 is evaluating compliance with human exposure to radiofrequency electromagnetic fields - August 1997 and made a request for the clerk to get a copy for the board to be enlightened on this subject. Mr. Vlachos states that we have hired an RF Engineer in the past. Attorney Grossman encouraged him to read it and states that for this location, the question is, does this site comply with FCC regulations and there is an affidavit from the RF engineer stating this does comply with all FCC regulations. That is as far as the board can go under the telecommunications act. Chair Vlachos asked why the board could not challenge the RF Engineer. Mr. Fernandez asked if the FCC responds to the RF Engineer's report. Attorney Grossman said that facilities of this nature are so low-powered, that it does not have an annual reporting requirement.
Dennis Duff, 33 Spruce Street, asked if the coverage goes into Belmont. Chair Vlachos asked the RF Engineer to show the map again and there is not any coverage in Belmont.
Mr. Fernandez requested that Louise track down the memo from the FCC. Ms. Civetti indicated that the information has been distributed to each member prior to our meeting with our counsel, including links to the FCC. Also, the research that she had done showed 15 sites in Watertown and 15 sites in Belmont. Rate information was not disclosed and was not a part of her report. Written information from her file was provided to Mr. Fernandez.
Chair Vlachos read from the Planning Board report recommending approval on both the Special Permit and the use Variance as well as the Staff Report.
Mr. Fernandez said he gives up as we the lack of a comprehensive approach from the town and legal counsel or ordinance should be challenged. Chair Vlachos said the point of the Federal Act was to prevent every city or town from challenging these and impeding the growth of the cell phone industry, leaving these towns with a limited review process.
Chair Vlachos asked the board if they required any formal proof as to why MetroPCS requires more antennas on the
roof than T-Mobile. Mr. Moynihan clarified that you cannot compare and Ms. Santucci agreed that there could be 6 different carriers and each plan would look different.
Mr. Bailey said that health can not be discussed and 40 other companies are allowed to come into Watertown and become a carrier - an unlimited number of carriers are allowed. He cannot vote against it.
Ms. Elliott cannot vote against it.
Ms. Santucci said the equipment cabinet on the roof in a separate structure - the alteration to the non-conforming structure is substantially more detrimental. She does not have a problem with the antennas. Chair Vlachos commented on the exposed antennas. Ms. Santucci said the antennas are exposed but the equipment would be exposed - perhaps there isn't any more room on the roof.
Mr. Bailey motioned to accept the Special Permit - 5.13, with the conditions as discussed. Ms. Elliott seconded. Voted 4-1, Ms. Santucci voted against.
Mr. Fernandez said he will vote no to the next motion and agrees with Ms. Santucci regarding the location, and screening that is away from the edge of the building. Chair Vlachos said if they take a vote, two members would be against. Ms. Scott asked the petitioner if they would consider another location for the cabinet.
Attorney Grossman said that it is either a Special Permit or a Use Variance. Ms. Santucci stated that the Finding is what she had inquired about at the beginning. Attorney Grossman said that Omnipoint had argued the same point, that the existing non-conforming was not required, just the Use Variance. They could avoid the use variance and grant the special permit for the alternations on preexisting non-conforming use. Ms. Scott asked what the non-conforming use is.
There was discussion on the Special Permit, the Finding and the Variance requests. Ms. Scott said the height is non-conforming and the existing height is 47? with the maximum in the T-zone being 35 and then add another 15? and you are increasing the non-conformity. Ms. Santucci said the Special Permit advertised is for use and the Finding is for the alteration to the non-conformity - the antenna is a use variance.
Ms. Fillis said these antennas are not going higher than the existing antennas. Chair Vlachos clarified that there are three forms of relief being sought: a Special Permit under Section 5.13; a Use Variance under 5.13(a)1 & 2 and a Special Permit Finding under section 4.06(a) - are all three needed? Ms. Fillis deferred to Ms. Scott to cite which relief is needed. Ms. Scott said it should be Special Permit Finding and a Variance and it was the Planning Board that decided it was a Special Permit under 5.31.
Chair Vlachos asked for a motion to rescind the Special Permit just granted. Ms. Elliott moved to rescind. Mr. Bailey seconded. Voted 5-0.
Attorney Grossman did not oppose the rescinding of the vote but questioned what they should do to make this design more acceptable - a setback from the roof line?
Chair Vlachos asked if the board would be in favor of voting for the Finding. Ms. Santucci and Mr. Fernandez said they would not be in favor. They were all in favor of the Use Variance.
Attorney Grossman said he would conference with MetroPCS but asks what the board would suggest. Ms. Santucci suggested a more uniform and attractive parapet. Mr. Fernandez suggested one big "hat" that encompasses all of the antennas in an architecturally pleasing manner.
Mr. Wilson stated that because of the exiting penthouse structure, they moved their equipment out to the front edge of the roof; however, they could move the higher structure back to tie in with the existing structure so it would appear to be part of the same structure. It would diminish the coverage on Mt. Auburn Street and cause some shadowing.
Mr. Fernandez said he would support the existing condition with the penthouse. He would not support any massing at the perimeter of the building.
Attorney Grossman would like to continue to the next meeting, April 29th and agrees to sign an extension agreement, if necessary.
Mr. Bailey motioned to continue the case to the following meeting. Ms. Santucci seconded. Voted 5-0. Continued.
Roger D. Lindquist, Manager, MetroPCS, 2250 Lakeside Blvd., Richardson, TX 75082, herein requests the Board of Appeals grant a Special Permit in accordance with §5.14, Wireless Telecommunications Facility, Location, Zoning Ordinance, so as to install 4 panel antennas-façade mounted on existing penthouses and 2 antennas located within a proposed faux vent pipe near northwestern corner of building; and 5 equipment cabinets and 1 GPS antenna on the roof at 617 a/k/a 485 Arsenal Street, located in the I-2 (Industrial) Zoning District.
Brian Grossman, Esquire, Prince, Lobel, Glovsy & Tye LLC, representing MetroPCS, presented the case to the board noting the petition meets all of the dimensional requirements for zoning.
A clarification was made that the case is actually in the I-1 zoning district (not in the I-2 as stated in legal notice).
Attorney Grossman explained the existing antennas and the placement of the installation of six (6) wireless telecommunication antennas, one GPS antenna, and radio communications equipment cabinets on the existing building for the operation of a wireless communications facility. MetroPCS is new to the New England market and since its 2002 service/business launch, it offers wireless broadband personal communication services (PCS) on a no long-term contract, flat rate, and unlimited usage basis in selected major metropolitan areas in the US.
Attorney Grossman stated the installation and equipment consists of 6 antennas - one (1) mounted to the existing penthouse located on the northeastern corner of the building, one (1) mounted to the existing penthouse located on the southwestern corner of the building; and because there is no penthouse to affix antennas to and still provide coverage along Arsenal Street, two (2) will be mounted within a faux vent pipe/flue and situated at the northwestern corner of the building; the remaining two (2) would be mounted on the existing center penthouse will be painted to match and will not extend beyond the height of the penthouses.
The accessory equipment - 2 base transceiver equipment cabinets, 2 battery backup cabinets, and 1 power/telephone demarcation cabinet would be installed in front (northerly) of the existing center penthouse. The equipment would be mounted on a 10?x 16? steel platform raised approximately 2?-9? above the roof and concealed completely with a screen wall enclosure that would be painted and textured to match the existing building finish. One (1) GPS antenna would be mounted to the side of the equipment screen wall. All equipment and antennas will not exceed 15? above the roof line.
The cabinets would be connected to the antennas and covered by a cable tray that runs along the inside of the parapet wall and on the roof. Additional conduit will run up the southern side of the building from the basement to the equipment cabinet and be covered with a cable tray painted and textured to match the building.
From the simulation pictures submitted, there are no significant changes to the roof and from the street it will not be visible. The Board was presented with radio frequency propagation maps showing the "gap in coverage" that upon approval, this installation will provide. The network will cover Arsenal Street, the Arsenal Mall, across the river, and towards Coolidge Avenue.
No one spoke on this petition from the public.
Chairman Vlachos acknowledged receipt of the Staff and Planning Board reports recommending approval with standard conditions. Radio Frequency Engineer (RFE), Bryan Eicens, addressed the Board and delineated the proposed coverage. The Board notes the submitted RF Report by Rakesh Goel, RFE, which he submits that the site was determined to be the most suitable location to provide coverage along Arsenal Street, the Massachusetts Turnpike and surrounding residential and commercial areas.
Ms. Santucci motioned to grant the Special Permit under 5.13, as requested. Ms. Elliott seconded. Voted 5-0. Granted.
Ms. Santucci read the legal notice for the record:
Antonio Enciso, 81 Lexington Street, Watertown, MA herein requests the Board of Appeals to grant a Special Permit Finding in accordance with §4.06(a), Alts/Additions to Non-Conforming Structure, Side Yard Setback; Variance in accordance with §5.04, Table of Dimensional Regulations, Maximum Building Coverage, so as to raze rear deck 8?-10?x 29?-7, construct and enlarge enclosed porch 11.4?x29.7?, providing 6.2? easterly side yard setback, where house is non-conforming at 5.9?, and where minimum 10? is required. Further increase building coverage from 29% to 35.3%, where maximum 30% is allowed at 81-83 Lexington Street, located in the T (Two-Family) Zoning District.
This case was continued on March 25, 2009 at which time Mr. Enciso stated he has done what the Board has asked - the elderly tenant moved out in late October, 2008 and Ms. Scott verified that the kitchen facilities have been removed from the basement and the house is now a two-family. Mr. Enciso refreshed the Board on his project. The enclosed porch is finished on the outside, but the inside has not been-he will insulate and put in lights. Member Santucci reiterated that in reviewing the numbers on the plot plan for building coverage, she indicated that the former raised patio with a full-solid basement and that should have been included in the existing building coverage calculation. The additional building coverage would be the extension of the existing, which was 2.5? and the shed. Clearly Member Fernandez and Santucci believe the increase of building coverage from 29% to 35.3% is erroneous and should be corrected. An extension of 2.5? does not increase the building coverage to 35.3%. Petitioner is not going from conforming at 29%, but increasing the non-conforming 33.9%. The Board then discussed the front yard asphalt. It was noted that they had thought that consideration should be made to changing a portion of the front - two spaces from the stairs over- to some permeable material; or material where grass grows through the blocks. Member Elliott stated that grass would probably not grow at that location-with all the cars. The cost of removing and replacement is not worth the benefit. It is doubtful that it would look nicer.
Board heard from the public: Mary Lou Gentile, 85 Lexington Street, supports the petition and hopes the Board permits the Encisos to continue and finish their project. No one is living down stairs.
Catherine Wencis, 46 Edenfield Avenue, her back yard abuts the petitioners. He is very meticulous about his yard. She abuts it and has no problem with it.
Chairman noted the Planning Board voted approval for both Special Permit Finding and Variance with a condition to replace the front yard with permeable surface.
Discussion then ensued about the shed. The shed did not require a building permit due to its size, however, it is not located the required 5? from the property lines. The shed is on a foundation. The Board is of the opinion that - letting the front yard that is completely paved over, a shed that violates the setback, the granting of a variance and an addition that was started without approval.
The consensus of the Board is that either remove the shed or green space in the front.
Ms. Fillis told the Board that the Planning Board wanted the same thing. They were not inclined to give full relief without either the petitioner doing one or the other. To relocate the shed to comply with the 5? setback, would result in a variance request for less than 10? between structures on the same lot. Removal of pavement can be costly said Member Moynihan. He believes it will look terrible, leave the blacktop and remove the shed. Mr. Enciso agreed to take shed down. To ensure that the shed is removed, the Board will condition this approval.
With reference to the Variance, for building coverage, the Board finds that revised building coverage calculations should be submitted-including the existing building coverage and the proposed, with the shed removed and the 2.5? extension added.
Ms. Santucci motioned to approve the Special Permit Finding with the removal of the shed. Ms. Elliott seconded. Voted 5-0 with Mr. Moynihan voting for Mr. Bailey.