Shutesbury Board of Selectmen and Energy Committee Meeting Minutes January 8, 2007 Select Board members present: Ralph Armstrong serving as Chairman for the Board for this meeting and Debra Pichanick. Rebecca Torres was in attendance but not acting in her role as Chairman because of a conflict of interest because her brother is an abutter to the proposed tower. Also Present: Town Administrator David C. Dann and Administrative Secretary Leslie Bracebridge, recording. Energy Committee members present: Chairman Mark Tuominen, Larry Hunter, Bruce Davidson, Clark Sylvester and Craig Marden. Other Committee members present: Planning Board Chairman Deacon Bonnar and member Joanne Sunshower, Board of Health Chairman William "Bill" Elliott, Town Building Committee Chairman Dale Houle, Broadband Committee member Louise "Weezie" Houle, Finance Committee member Al Springer. Also present: Andrew Bruce McAmis, Esq. representing Town Hall abutters Linda and Kenneth Rotondi who were also present. Town Hall abutter Russ Wilson, Hugh Harwell, Gregory Steve, Steve Puffer, Robert Kibler, Julie Taylor by speaker phone and Daily Hampshire Gazette reporter Robert "Bob" Dunn. Select Board member Ralph Armstrong (RA) opened the meeting at 7:04 P.M. Town Administrator David Dann (DD) distributed 4 handouts: 1. The Shutesbury Telecommunications Tower Bylaw, 2. A letter addressed to the Chairman of the Board of Selectmen regarding the proposed wind turbine project from Andrew McAmis, Esq. representing Town Hall abutters Kenneth and Linda Rotondi, 3. A model amendment to a zoning ordinance or bylaw allowing wind facilities by special permit, prepared by the Massachusetts Division of Energy Resources Massachusetts Executive Office of Environmental Affairs, and 4. A small wind fact sheet including a model zoning ordinance promoted by the American Wind Energy Association (AWEA). Energy Committee Chairman Mark Tuominen (MT) summarized the points of Attorney McAmis’ letter (handout # 2): 1. That the bylaw applies to all towers without exception, and that 2. Specific aspects of the Energy Committee’s proposed wind turbine tower to be sited behind Town Hall are in conflict with Shutesbury’s Telecommunication Tower Bylaw: * The height of the proposed tower is above the 100 foot bylaw limit and * Town Council Donna MacNicol’s telephone inquiry opinion reported by David Dann, that the tower would need to comply with the Telecommunications Tower section of the zoning bylaws; the town was not exempt. Planning Board Chairman Deacon Bonnar (DB) summarized that the limited previous inquiries requiring application of the Telecommunications Tower Bylaw concerned cell towers, not wind turbines. When the bylaw was developed, the Planning Board was not considering wind towers. Deacon said that the Planning Board would need an attorney to interpret how the current telecommunications bylaw would be applied to wind turbines. DD: Perhaps an amendment to the bylaw would allow for a wind turbine tower. It’s clear that the current bylaw requires a special permit for the wind turbine tower. Hugh Harwell (HH): Questioned the applicability of Shutesbury’s Telecommunications Bylaw (Handout #1) to wind generator towers. Except for the initial reference to "all towers" even the title and all specifications pertain to telecommunications towers. He summarized the application process of the Sirius Community a number of years back, including a conversation with then Planning Board Chairman Jon Thompson who Hugh quoted as saying there was no application of the telecommunications tower bylaw to a wind turbine tower. Therefore, Hugh reasoned, there is an established precedent of a wind tower that exceeds 100 feet that did not require a special use procedure. DB: The Planning Board never formally discussed the Sirius wind tower and that Jon may have been wrong. Board of Health Chairman William Elliott (WE): The role that the Board of Health played in the case of the Sirius Community’s tower is the same as the role the Board of Health plays in the proposed tower: noise/setbacks/neighbors. The Board of Health did not in any way review the telecommunications tower bylaw nor did they agree that the tower was or was not in compliance. That is up to the Planning Board, Selectmen, the Zoning Board of Appeals, and the Building Inspector. MT: Section V. B. was written without the foresight of wind towers. It only refers to telecommunication needs. For a wind tower to be effective and long lasting it has to be above the height of the surrounding trees. Energy Committee member Larry Hunter (LH): added that no point of the blade should be less than 30 feet above any treetops that are within 300 feet of the turbine. Julie Taylor (JT): Thought that one of the points made to promote the tower was that telecommunications antennae could be attached to the wind tower. Are assurances now going to be made that the proposed tower will only be used for a wind turbine? MT: Adding a wireless antenna is not within the purview of the Energy Committee. HH: Julie’s point would only apply if the town meeting vote included that consideration. Broadband Committee member Louise "Weezie" Houle (LH): The Broadband Committee is not looking to the proposed tower to expand broadband because this part of town already has "DSL." RA: Asked MT how he would like to "step through the bylaw." MT: Clearly the tower is over 100 feet so the next step would be to apply to the Planning Board for a special permit, except that the bylaw has two options, neither of which applies to wind towers. How can the Planning Board respond to two things that clearly do not apply? DB: Does not know and needs the advice of an attorney. MT: The model zoning ordinance handout clearly deals with issues such as this. "Wind power was not in anyone’s radar" at the time the tower bylaw first passed in 1999 and later amended. Becky Torres (BT) speaking as a resident because her brother is an abutter to the proposed tower location behind town hall: Asked that the town speak with the Attorney General to see if the bylaw holds up legally. Select Board member Debra Pichanick (DB): Asked what the Planning Board had intended. DB: The Planning Board clearly intended all towers. Town Building Committee member Dale Houle (DH): The wording says, "This will apply to all towers." DD: That’s what the attorney said. WE: Any tower. MT: The bylaw falls short of addressing the specific interests of a wind tower. RA: Seems to be very clear: this shall apply to any tower. Wind towers are not listed in the exemptions. It doesn’t seem that we have a lot of latitude. We should get an opinion from the Attorney General. WE: We need a written opinion from Town Counsel. Energy Committee member Larry Hunter (LH): The importance to our town is that something be in place that will apply to more than a single tower. He recommended amending these bylaws that were not written for the reality of wind towers. "If this is going to have an impact on our community as a whole we need to sit people down and talk. It may be a long process and it may not be successful but we need to look at it." DB: Agreed. There are more concerns than just that a tower generates energy. DP: When they said "any tower," they were thinking ahead, that things could come up. They may not have been thinking wind tower, but they were thinking about a structure. HH: A perfectly reasonable point; if the committee did consider that, than they should have put considerations applicable and enforceable into the bylaw and not left the town without any means to build a tower. Feels the bylaw would not stand up in court because it’s an unfair burden to any landowner. RA: Documents are static and we are not. Likes the suggestion to modify the town’s bylaw by writing in some method more flexible into the future. WE: Doesn’t think that’s true. Wind towers have been around for a while. The bylaw was written for all towers. MT: Questioned the intention to limit towers to 100 feet or below. DB: It was likely a waiver would be in the cards. The Planning Board did not feel 100 foot towers were going to be tall enough. Planning Board member Joanne Sunshower (JS): The procedures only apply to telecommunication tower applicants. DB: - The reason for that wording is because the original applicant before the Planning Board was a "spec" company that only built towers and rented space on the towers to telecommunication providers. - Need to talk to Town Counsel. - Could certainly grant a waiver for purposes other than the telecommunications. Andrew McAmis (AM): A waiver would involve a re-write of the bylaw in general. Waivers only seem applicable for cellular towers. DB: Another lawyer could read another interpretation. Town Hall property abutter Russ Wilson (RW): What are the steps to amend the bylaw, so that we don’t have to litigate it? DB: Language written, a public hearing, there is enough time between now and May. DD: The Planning Board is in the process of re-writing the entire zoning bylaw and could fit it into that timeline. They anticipate finishing writing at the end of this month. They will hold several educational meetings. If there was a sub-committee that wanted to get together and develop language and present it to the Planning Board, there would be plenty of time. MT: The title and language of this bylaw is so specific to a telecommunications tower, would you amend this bylaw or just have a tower bylaw specific to wind towers? (He refers to the Massachusetts Energy Resources Model Amendment to a Zoning Ordinance or Bylaw handout #1.) DB: If the amendment is going to go through the zoning bylaw, the Planning Board would have to have some conversations. HH: Felt that this project was decided by the town at a special town meeting in November and should not be subjected to a future amendment. Administrative Secretary (and Town Clerk) Leslie Bracebridge (LB): Offered to get the specific wording of the vote to HH. DB: If it can’t be done under the current bylaw, the bylaw would supersede the decision to spend the money. HH: The current bylaw directly affects all private property owners, not just the town, by putting an unachievable burden on them if there is no allowance of any kind for a wind tower special permit. Energy Committee member Bruce Davidson (BD): Recollected a question at the Town Meeting if the vote meant that the project was going ahead and that DD had said approval of the article meant it would go ahead. Resident Robert Kibler (RK): What if the land were "bermed" to keep the tower to the bylaw height? Resident Greg Steve (GS): Bylaw says measured from the preexisting level of the land. RA: The bylaw doesn’t talk about the guide wires. DH: Voting the $15,000 was to make up the loss of the possible grant that we might not get. The wind tower and turbine was really only going to happen if it could be done for $50,000 and if there were any more costs, it would have to be re-visited. Feels it will be tough to do for $50,000. That price might mean that we’ll have to go before town meeting again. DD: The expectation the town had was that the maximum amount the town would contribute would be $15,000. Finance Committee member Al Springer (AS): We still have engineering fees that haven’t been considered. (During the meeting, Al also distributed copies of a newspaper article describing an oil saving device that when attached to a oil burner may reduce fuel consumption by from 8 to 25% with notes showing that the Belchertown school system had installed two devices this year that have already paid for themselves and saved Belchertown $400 in fuel bills. The handout was not discussed at this meeting.) DD: The town is not at the point to go out to bid so the engineering has not yet been done. DB: The Planning Board was under the mistaken assumption that the town would be exempt from the telecommunications tower bylaw. RW: It is important for an amendment to create a clear path so that all the folks who might be interested in putting up a tower know what they need to do. RK: volunteered to work on the sub-committee. BT: The Planning Board is meeting every week; they could just extend their hours. DD: Is it the general consensus that this is the way to go, to add another section that just addresses wind towers? RA: Confirmed DD’s question. DB: Even so, the Planning Board will have to add modifying words to the current bylaw. DP: How will that work, to put up a tower right next door to your neighbor? Are you going to have to have 5 acres? What’s reasonable? We need to put some thought into amending the bylaw. We can’t go "zooming through" for town meeting. What does this mean for the town’s proposed tower? Would the bylaw be retroactive? MT: It’s not something to rush through. It needs detailed thought. He questioned the setbacks of 1.5 times in the model bylaw. LH: That’s for turbines over 60,000 kilowatts. DP: This cannot be rushed. DH: The Planning Board would have to vote to accept the tower bylaw if it’s going to be part of the proposed zoning bylaw. DB: The Planning Board recognizes some problems and wants to be helpful DH: This could make or break the entire zoning bylaw revision. DB: We (Planning Board members) are responsible to do something and delighted to start talking. Doesn’t know where this will end up. DD: It’s a natural part of a zoning bylaw. It should be a careful, thoughtful, and deliberate process. RA: We’ve got a lot of homework to do before we move forward. JS: Ask for an opinion from the Attorney General’s office. If the town’s counsel could confer with the AG and give a read-out it would greatly facilitate whether we can adopt a bylaw, or go ahead on the November vote. This should be decided by legal council Town Hall property abutter Linda Rotondi (LR): If we do adopt a bylaw specifically for a wind tower, would it be applied universally across the town? RA: Favors something that could be applied equally to all members of the town. HH: That would be appropriate with the restraint that all parts of all proposals apply to the bylaw. It’s about finding the balance. BD: The current bylaw does apply to wind towers, but if you try to get a special permit for something other than a telecommunications tower - then it doesn’t apply. Other than a telecommunications tower, you can do nothing. If it does apply to wind towers then we need legal counsel. DP: Let us ask Town Counsel Donna MacNicol to contact the Attorney General’s office and see where it goes from there. RA: Invited other comments or questions: DH: Thanked the Energy Committee for putting in hard work... Volunteers can put a lot of time into projects that don’t always happen. HH: We had a good size turnout at the special town meeting. A lot of people had concerns. There’s a lot of interest in having the tower. RA: Thanked the Energy Committee for showing we have a bylaw that needs work. JS: Suggested an analysis be provided for questions about costs and the complete lifecycle of a wind turbine/tower so that there can be a "complete reflection." MT: That changes every 4 months. It’s a moving target but will do their best to comply. RA: Ended the Select Board participation in the Energy Committee meeting at 8:15 P.M. Respectfully submitted, Leslie Bracebridge Administrative Secretary 070108 Energy Committee with Selectboard 6