HomeMy WebLinkAboutMemorandum - osprey pole 4/29/25 TOWN OF YARMOUTH
1146 Route 28, South Yarmouth, MA 02664
508-398-2231 ext. 1261 Fax 508-398-0836
Office of the Building Commissioner
MEMORANDUM
TO: Sean Igoe, Yarmouth Zoning Board Appeals Chair
FROM: Mark Grylls, Municipal Inspections Director/ Building Commissioner
DATE: April 29, 2025
SUBJECT: Utility Pole—40 Crosby St.
I received a request to enforce certain sections of the Yarmouth Zoning Bylaw and
780 CMR— MA State Building Code via a letter dated March 13, 2025. I did not respond in the
timeframe required by MGL 40a § 15, and therefore, provide this memo to the Board.
Having spoken with Marc LaPointe, MA State Building Inspector as well as Town Counsel regarding
this request, it does not appear that any of these concerns are enforceable.
Paragraph 7 in the March 13th request for enforcement references the Yarmouth Zoning Bylaw-
Table 203.5, footnote D1. Specifically, the letter contains only the words "and other customary
yard accessories."
The full context of Table 203.5, footnote D1 reads "Fences, poles, posts, paving and other
customary yard accessories."Customary yard accessories are in addition to fences, poles, and
posts, not that those listed are considered customary yard accessories. In fact, poles are
specifically excluded.
Paragraph 7 in the March 13th request also references section 407.7.8 which does not exist.
I assume the reference is a typo and should have read section 408.7.8 which reads as follows:
408.7.8 Fall Zones. Communications towers, whether free-standing or part of another structure or
building, must be set back from all property lines by at least the total height of the tower structure
and its appurtenances.
This paragraph specifically refers to Communication Towers and not utility poles.
The utility pole does not appear to meet the definition of a structure in the Yarmouth Zoning
Bylaw.
March 13, 2025
Town Administrator
Building Commissioner
Conservation Commission
Town of Yarmouth
1146 Route 28 Hand delivered to all
South Yarmouth, MA 02664
Re: Request for Town to Address and Require Relocation of Construction Pole at 40
Crosby Street Beyond its Fall Zone for Public Safety Reasons
Dear Town OfIiGitt
I am writing to formally ask the Town to address its responsibility to enforce public safety
and require the relocation of the utility pole with a platform and extension for migrating
osprey at 40 Crosby Street to an area that is well beyond my property line at 94
Pleasant Street. Because the pole broke completely at its base and fell to the ground
this past December, it is now undeniably evident that this huge, heavy and unregulated
pole is located dangerously too close to my property and thus jeopardizing the safety of
myself, my dog, my quests, and my property. The most reasonable remedy is for the
Conservation Commission to revise its wetlands mitigation plan and require the pole to
be relocated so that the top of the pole and the platform and extensions are not able to
fall in or near my yard, or alternatively for the Building Department to formally review the
apparent danger, need, and authority to require the relocation of the pole.
The heavy, huge pole regardless of its use broke and fell. It will break and/or fall again.
The danger is real.
1. The Conservation Commission allowed the installation of a 40- to 50-foot
construction pole at 40 Crosby Street in an area not more than 15-20 feet from
my property line via a wetlands mitigation order. (Reference SE 84-120 (2022)).
It had a large wooden platform on top, surveillance (camera and sound)
equipment as well as electricity. It was used by 5-6 different osprey migrating
each year from the Spring to the Fall each year.
2. The pole with extensions was located in within the wetlands where the soil is
unstable and becomes more unstable as tides continue to rise. The winds with
the platform, like a sail, cause the pole to sway.
3. The pole broke at its base on or about the end of December 2024 and fell
westerly onto 40 Crosby Street.
4. In January 2025, the neighbors quickly erected a new, apparently larger pole,
with a platform and extension. This pole also sways in the high winds. Its location
is near or about the former pole location in the unstable ground. At last
observation, the electrical lines were still on top of the ground.
5. A typical utility pole such as this is anywhere from 40-60 feet in length and can
reach a weight of 2,800 pounds. This pole was stuck in the dirt, and is no ability
to confirm the pole's depth or stability. But we can confirm that the Fall Zone of
the pole extends well onto my property and that it's a heavy pole with a platform
and an extension located in the unstable ground.
6. The Fall Zone is a critical area to avoid injury or damage. Fall Zones (which the
Town addresses for other tall structures) are typically calculated based on the
object's height plus a safety buffer. Factors like wind, the object's natural lean,
and environmental conditions can influence where the pole will likely fall again.
The winds blow S-SE for the majority of the year. My property is located to the
South of the pole. The pole is located in the wetlands.Wetlands have poor load-
bearing capacity. Wetland soils are soft, sand — and water-saturated, and
compressible, making them unable to support heavy structures without significant
reinforcement. Further, the presence of waterlogged soil leads to subsidence
(gradual sinking) and shifting, increasing the risk of foundation failure.
7. Footnote 203.5 D.1 of the Yarmouth Zoning By-laws is not applicable to this
situation and the pole is not exempt under this provision, because the footnote
reads..."and other customary (emphasis provided) yard accessories...".
"Customary" has the plain meaning of features commonly found in residential
yards. There is nothing "customary" about a ton-weight pole with a sail-like
substantial platform purposely used to attract wild animals. In fact, this
"structure" is more like a communications tower or a wind turbine, and less like a
flagpole that is only required to support a flag and rope. See Yarmouth Zoning
By-laws s. 407 7.8 Fall Zones ors. 413 1.2 Siting Requirements. (See attached).
I believe that this pole can be deemed a "structure" broadly defined under 780
CMR- Massachusetts State Building Code. If a pole is carrying loads or is a
permanent installation, it may be subject to wind load and foundation
requirements under the International Building Code (IBC), which Massachusetts
adopts as part of 780 CMR. Electrical Code Compliance. And since the pole is
likely to carry electrical components (e.g., private cameras and listening devices),
it must comply with the Massachusetts Electrical Code (527 CMR 12.00).
8. Failure to relocate the pole would condone a safety risk and could be construed
as a taking of my property. Failure to relocate the pole would continue to make
me feel unsafe.
9. Now that this pole has fallen (based on my recollection this is the second pole
that has been replaced since 2005), it is very real and potential hazard to me.
10.I respectfully request action and a formal response to exhaust my administrative
remedies.
Additional commentary.
The documents in SE 84- 120 do not reveal any communications with the Building
Department, but refer to a "safe habitat" for the birds. The pole is not "safe" for my
habitat; i.e., for me, my pets, my guests or my property as it will someday fall again.
I believe that the placement of this structure falls within the broad scope of public safety.
Its location in the wetlands and too close as to fall on my person or property is arbitrary,
capricious or otherwise biased or irresponsible now that we all know of the real danger.
It should never have been allowed to be replaced without careful consideration of why it
would need to be replaced.
While conservation commissions operate under the Massachusetts Wetlands Protection
Act (MGL c. 131, § 40) and local wetlands bylaws, their role is to review and regulate
activities in or near wetlands, floodplains, and other resource areas. They can issue
orders regarding environmental impact, but they cannot issue building permits, and they
certainly don't oversee structure safety.
The purpose of the Yarmouth Zoning By-laws is to promote the health, safety,
convenience and welfare of the inhabitants. Under the compliance certification
provision, buildings, structures (emphasis provided) or land may not be erected,
substantially altered or changed in use without certification by the Building
Commissioner. 780 CMR broadly defines a structure as anything built or constructed.
Under Massachusetts General Laws, Chapter 143, Section 9, if a structure is deemed
dangerous, local inspectors have the authority to order the owner of the structure to
relocate it or remove it.
I realize that ��y personal interests in living in a quiet and clean environment are
meaningless to the Conservation Commission for whatever reasons. But the pole broke
and fell and there remains a new (larger) pole located too close to my property creating
a dangerous situation.
I hope that the Town recognizes the Conservation Commission's error and overreach
and sees its role to take corrective action to require the relocation based on the current
evidence of the pole breaking and falling. As documented in prior communications with
the Town, the breaking and falling of the Con Com approved pole in December 2024
clearly demonstrates the real, imminent and proven danger of this pole's real potential
of falling. I've attached the photographs again.
This is not a civil matter alone. The Town is party via the Conservation Commission at
least. The issues presented in this letter may not be exhausted.
I look forward to your written response regarding the steps the Town will take to resolve
this issue.
Please feel free to contact me to discuss this matter or to schedule a site visit at 978-
475-5082 or iver21 @col . I think there is a reasonable solution of
relocating the pole in the middle of 40 Crosby if they wish to assume the risk- I don't
anymore.
Sincerely,
,q /,1,l ()
Maria Marasco, Esq.
94 Pleasant Street
South Yarmouth, MA 02664
cc. Denise Chicoine, Esq.
Attachments
Attachments:
Estimated location of pole and drop zone
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RE:40 Crsoby BROKEN POLE
DiRienzo,Brittany<BDiRienzo@yarmouth.ma.us>
DB
To: You: Denise Chicoine Thiu
8 You forwarded this message on Mon 2/17/2025 12:03 PM
Hello Denise and Maria,
The osprey pole was approved as part of 8E83-2120,the project files are linked.They may repair or replace the pole in its permitted location under
this permit.The Conservation Commission only reviews and approves items as they relate to the Wetlands Protection Act(M.G.L.Ch 131 sec 40)
and the Yarmouth Wetland Bylaw(Ch 143).I've been in contact with Town Counsel about this,but they do not typically respond to direct inquiries
from the public.
Regards,
Brittany DiRienzo
Conservation Administrator
Town of Yarmouth
bdirienzo@yarmouth.ma.us
508-398-2231 x1288
From:Maria Marasco<mmarasco@cvecinc.org>
REVIEW OF CON COM FILES OOC 2120
Photos 9.15.17
Photos Mitigation Incomplete 8.11.23
Revised Plan 9.7.2017 APPROVED PLAN
NOI Folder:Site Plan 8-22-17
Request for Extension 2020 Folder: Photos 11.3.2020
Request for Extension 2022 Folder: Photos 9.28.2022
Request for Extension 2022 Folder: draft mitigation plan rvsd 11.28.22
Request for Extension 2022 Folder: draft mitigation plan 11.9.2022
Request for Extension 2022 Folder:APPROVED mitigation plan 12.2.22
, ... Lj
Valikiht4114
"2�3.b Table of Dimensional Requ ements (A)
Zoning or Minimum I Minimum Minimum Yard in feet 1 Maximum Maximum
Overlay Lot Size Frontage (D,E,R,U) Building Shape
District in Sq. Ft. in feet Front Side Rear Coverage Factor
(B,C.N.R,S) (F,G,R) (I) (%)(R) (V)
R-87 87210 200 30 I 50 75 I 25 22
R-40 40000 150 30 20 20 25 22
R-25 25000 150 30 15 20 25 22
RS-40 40000 150 30 20 20 25 22
B1 25000 150 30 (J, X, Y) I 25 I 20 1 25 (L) I 22
B2 20000 125 (H) 30 (X, Y) 25 20 25 (L) 22
B3 40000 100 30 (K, X, Y) 10 (K) 30 (P) 22
RMDOD 40000 l 100 30 (W) 1 10 (W) 30(W) (P) 22
217800
MU (5 acres) 200 30 25 20 25 22
AED 40000 100 30 10 30 (P) 22
HMOD1 20000 125 (H) 30 (X, Y) 25 20 25 (L) 22
HMOD2 20000 125(H) 30 (X, Y) 25 20 25 (L) 22
MOD 20000 75 I 20 15 15 35 22
The Aquifer Protection Overlay District (APD) overlays the
APD town's zoning districts; see the information above for I (P)
dimensional requirements I
The Revitalization Overlay Architectural District (ROAD) overlays other
ROAD commercial zoning districts. as described in section 411.3
VCOD The Village Centers Overlay District (VCOD) overlays other districts and
(all the dimensional requirements of Section 414 shall govern.
districts)
Notes:
A. See section 402 for dimensional requirements in a cluster or multi-family development.
B. Motels/hotels, where allowed, shall have a minimum lot area of 25,000 square feet and
shall be constructed at a density of not more than one (1) unit per one thousand (1,000)
square feet of lot area and shall conform to the minimum lot size in the table above.
C. Except for properties to which Section 404 applies, two-family dwellings, where allowed,
require twice (2 times) the normal minimum lot size of the district.
D. The following are specifically excluded from these regulations:
1. Fences, walls, poles, posts, paving and other customary yard accessories, ornaments
and furniture, ramps, landings and similar structures needed for handicapped access.
2. Cornices, window sills, belt courses and other ornamental features may project not
more than eighteen (18) inches; bay/bow windows, greenhouse windows and eaves
may project not more than twenty-four (24) inches, and chimneys may project not more
than thirty-two (32) inches into any required yard.
30
yen fr) PAVIA
f
is no more than a twenty foot (20') increase in the height of the exist. g structure as a result of
the installation of a Communications Facility: electric transmission and distribution towers,
water towers, telephone poles and similar existing utility structures. This exemption shall not
apply in the Old King's Highway Regional Historic District, within 300 feet of the right-of-way of
any scenic roadway.
408.7.6.6 Microwave antennas exceeding 12 inches in diameter on a roof or building-mounted
facility shall not exceed the height of the structure to which they are attached, unless fully
enclosed.
408.7.7 Parking Requirements. All Communications Facilities must meet the parking and
buffer requirements of Bylaw section 301 (Parking and Loading Requirements).
v, 408.7.8 Fall Zones. Communications towers, whether free-standing or part of another
structure or building, must be set back from all property lines by at least the total height of the
tower structure and its appurtenances.
408.7.9 Aesthetics.
408.7.9.1 Landscaping. Existing mature tree growth and natural land forms on sites shall be
preserved to the maximum extent possible. Screening for sites buffers and parking lots must
meet the criteria outlined in section 301 Parking and Loading. in addition, the base of
communication towers shall be screened from view by a minimum four (4) foot wide planting
strip maintained with densely planted shrubs not less than six (6) feet in height. Shrubs shall
be at least seventy-five percent (75%) evergreens. Fences or walls may be a part of such
screening where deemed necessary, as approved by the Site Plan Review Team. In locations
where the visual impact of communications towers would not be an issue, these requirements
may be reduced or waived by the Building Commissioner upon unanimous vote by the Site
Plan Review Team.
408.7.10 Color and Camouflage
408.7.10.1 Color. Communications towers and antennas shall maintain a light gray or light
blue finish, unless otherwise required by the Board of Appeals. Communication towers and/or
antennas installed on an existing building or structure shall be camouflaged to match the
building or structure to which they are attached or the background against which they are most
commonly seen.
408.7.10.2 Camouflage by Existing Buildings or Structures:
1. When a Communications Facility extends above the roof height of a building on which it
is mounted, a reasonable good faith effort shall be made to conceal the facility within or
behind existing architectural features to limit its visibility from public ways. Facilities
mounted on a roof shall be stepped back from the front facade in order to limit their
impact on the building's silhouette.
2. Communications Facilities which are side mounted shall blend with the existing
building's architecture and shall be painted or shielded with material which is consistent
with the design features and materials of the building.
91
G1j) m e1� 4 -
2. A RWES that requires an ease ent;
3. A RWES that will have an equipment shelter in excess of 150 square feet in floor area or
multi-story;
4. A RWES that serves multiple properties;
5. A RWES that has a total extended height greater than 125';
6. Above ground wiring, cables, or power lines.
413.1.2 Siting Requirements.
1. A RWES located on a residentially zoned lot must have its fall zone located completely
within that property's lot lines unless the lot owner is granted a written easement(s) by
an abutting property owner(s). Said easement(s) shall be in force at least as long as
the turbine is erected and shall be duly recorded at the Barnstable County Registry of
Deeds.
2. The base of the RWES tower shall be set back from all public and private rights-of-way
and public utility lines a distance equal to the total extended height plus ten feet. Under
no condition shall the RWES interfere with public utility lines or rights of way, public or
private.
3. Anchors for guy wires which support a RWES may be located within building setbacks,
as those setbacks are outlined in section 203.5, Table of Dimensional Requirements.
413.1.3 Sound Requirements. Sound produced by the RWES under normal operating
conditions shall not exceed 10 dBA above ambient noise, as measured at the property
line. Sound produced by the RWES shall conform to MA 310CMR 7.10
413.1.4 Height Limitation. The total extended height of a RWES shall be less than or equal to
125' unless a special permit is granted by the Zoning Board of Appeals.
413.1.5 Access. No climbing foot pegs or ladder rungs shall be allowed below the first twelve
(12) feet of a tower in order to prevent unauthorized access.
413.1.6 Equipment Shelter. An accessory structure used exclusively for battery storage
pertaining to a RWES shall be no more than 150 square feet in floor area and single story
unless a special permit is granted by the Zoning Board of Appeals.
413.1.7 Aesthetics.
1. Wind turbines, blades, towers and all equipment mounted on towers shall have a white,
light gray or light blue non-reflective finish to minimize contrast with sky and clouds.
2. Lattice towers shall not be allowed.
3. Al! electrical wiring, cables and power lines of a RWES shall be placed underground.
310