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Zoning Board of Adjustment Minutes 06/30/09

June 30, 2009 Meeting
#2009-01ZBA (continued)
New Cingular Wireless PCC (AT&T) PWSF (Cell Tower)

Members & Staff Present:         Diane Chauncey (Staff)  Doug Crafts (Member) Cell Towers only
John Giffin (Member)            Ron Haggett (Member)     John Kendall (Chair)           
Peter Moore (Planner)               Frank Scales (Member)       Don Winchester (Alternate)                                                                                      
Members & Staff Absent:         
Public Attendees:  
Richard Allen (resident)                                Douglas Wilkins (Attorney – AT&T)               
Shelly Nelkens (People for a Safe Environment)  Leslie Bernardi (Abutter)
Susan McKlish (Abutter)                         Michael Pon (The Villager)
Bonnie Achterhof (Resident)                             John Dunlap (Owner)     
7:00 pm Review Session:

The Board reviewed the minutes and the Mark Hutchins rebuttal to Peter Burwen’s June 23, 2009

7:15pm Public Hearing:
Chair Kendall opened the Public Meeting at 7:14pm and introduced the Board members. All five members were present as well as one alternate. Chair Kendall explained the meeting procedure, opened the Public Hearing , and asked Attorney Wilkins to present additional information. He addressed questions that had been asked at the Peterborough Cell Tower site walk. He stated that Industrial Communication Electronics own both towers.  Attorney Wilkins also said that the generator would test once a week for 30 minutes, and that a condition could be added to the Notice of Decision that stated that the maintenance test would occur during the day between 9am and 5pm. He had no further paper additions.

Attorney Wilkins said that his firm had gone through the entire Antrim Zoning Ordinance and addressed every issue involving the PWSF. He noted that some of the information was Planning Board related and that he would be addressing the three Zoning Board matters.

1.  Special Exception to construct and operate a ground mounted Personal Wireless Service Facility at 22 High Street, Antrim, NH (Map 244 Lot 6)

        A Special Exception may be approved by the Board if the following criteria has been satisfied.
        (1.) The proposed use may be similar to one or more of the uses already authorized in that
                district and is in an appropriate location for such use

        Attorney Wilkins - AT&T has paid a lot of attention to the location and both Radio Frequency    engineers (Kevin Brewer - AT&T; and Mark Hutchinson, Independent) have agreed that the  proposed location is the most suitable site to eliminate the coverage gap. The proposed tower   will be constructed in a well concealed location, and although not proposed, AT&T would be      willing to use a monopine.

        (2.) Such approval would not adversely affect the neighborhood, nor otherwise be injurious,             obnoxious or offensive.

        Attorney Wilkins - The proposed PWSF will be a passive and unmanned use. There will be no
        fumes, dust, gases, etc., no onsite person, and only routine maintenance.

        (3.) The use will not create excessive traffic congestion, noise, or odors in the neighborhood          where it is proposed.

        Attorney Wilkins - There will be no traffic congestion (once or twice a month there will be     routine maintenance), no odors and as stated in the Noise Analysis study, it was determined     not to be offensive.

        (4.) Such approval would be consistent with the intent of the Zoning Ordinance.

        Attorney Wilkins - The PWSF is consistent with the intent because the facility is well  concealed; there are no emissions; the FCC Regulations of health and safety have been   followed; and, coverage is added where it does not presently exist.

        (5.) Adequate and appropriate facilities will be provided for the proper operation of the                       proposed use.

        Attorney Wilkins - The proposed PWSF is not a demanding facility as expressed in (2.).

        (6.) Does not apply

2. Variance - From a ground-mounted PWSF not to project higher than twenty feet (20') above the Average Tree Canopy Height - Attorney Wilkins said that the added height is driven by the Radio Frequency Analysis and the co-location of other Cell Companies.

3. Variance - From the minimum lot frontage of 200' for Non-residential use in a Residential District
Attorney Wilkins stated that the facility location was on a large lot of unmanned use. He stated that there is more than ample access, and it should not be a problem.

The following list the area variance criteria and Attorney Wilkin's responses to the criteria.
        (1.)  The value of the surrounding property will not be diminished.

        Attorney Wilkins - Two appraisal analyses (AT&T  - Stanhope Appraisal and Independent -         Andrew Lemay) had both come to the same conclusion  that there would be no diminution in        the value of the surrounding properties.  Attorney Wilkins added that he had read Mr. Burwen's  letter (stating that the cell tower was in clear and plain view)  which he will not object  to  because of its late submittal but would argue that it is not evidence by which a Board could    reject because of the opinions of the two experts.

        (2.)  The variance will not be contrary to the public interest.

        Attorney Wilkins - The PWSF is in the best interest of the public because it will bring wireless
        access to the area in which there is presently a gap in coverage.

        (3.)  Special conditions exist such that the literal enforcement of the ordinance results in                    unnecessary hardship as follows:
                a. The zoning restriction as applied interferes with a landowner’s reasonable use       of the          property, considering the unique setting of the property in its environment.

                b. No fair and substantial relationship exists between the general purposes of the                      zoning ordinances and the specific restrictions on the property.

        Attorney Wilkins - The NH Superior Court has stated that where there is a significant gap
        in coverage, a PWSF company has the right to construct a cell tower to correct the gap. He      referred to the Daniels v. Londonderry case, which most recently addressed hardship issue

        (4.)  Substantial justice would be done.

        Attorney Wilkins - AT&T has complied with the Antrim Zoning Ordinance. The Board must
        review each variance on a case by case basis.

        (5.)  The variance is consistent with the spirit of the ordinance

        Attorney Wilkins - The variance requests are not contrary. The facility will be well screened,
        is not obnoxious, and conforms to the specific provisions of the Antrim Zoning Ordinance.

In conclusion, Attorney Wilkins stated that for all the stated reasons, the Board should grant the Special Exception and the two Area Variances.

Chair Kendall stated that further information had been submitted:
·       Peter Burwen's 2 appraiser letters and appraiser's forum internet site  on the real estate appraisal of his property (stating that a structure would have a negative impact on his property) was given to the Board, Attorney Wilkins, and Town Counsel (electronically) and the hardcopy of his information was available at the meeting.
·       Mark Hutchins Radiofrequency Engineer response to Peter Burwen 6/23/09 email regarding ATT Application Review

Chair Kendall asked if there were any abutters who would like to speak in favor of the application. There were none.

There were abutters not in favor of the project. Their points are as follows:

Susan McKlish – 30 High Street
·       John Dunlap makes the money not the town
·       There will still be a gap in coverage until other towers are constructed
·       The tree canopy
·       There is not enough road frontage
·       A commercial business does not belong in a residential neighborhood
·       The water tower would give less coverage but what about when the other towers are constructed
·       In general it would be better if the Town of Antrim were to receive the rent
Leslie Bernardi  30 High Street
·       Mark Hutchins did say that the water tower was adequate
·       Would the towers work in an emergency
·       There should be more coverage to residential homes
·       Concern about the increased traffic due to other antenna collocations
·       The PWSF is highly unfair
·       Will be a nuisance to the abutters
Non-abutter residents not in favor of the PWSF.

Shelly Nelkens (resident)
·       How many decibels did the Peterborough towers emit?
        Chair Kendall said that the Board had been told 49 dbls
·       Did the Board hear the sounds emitted by the Peterborough
        Chair Kendall said that the Board did not hear the Peterborough towers.
·       Was there notification of the change in the location of the site walk?
        Chair Kendall said that the Deering Cell Tower site walk was contingent upon the approval of    the Cell Tower owner. The owner did not agree. Shannon McManus of KJK Wireless set up   Peterborough towers as an alternative site walk.
·       The visibility of the balloons during the balloon test was limited because of the leaves on the trees - a point which had been made in a public meeting - previous to the test
·       How long could a cell tower operate in an emergency?
        Chair Kendall said that in the Ice Storm some generators ran for 14 days.
·       Why is the cell tower needed if cell tower reception is available in Antrim? Not everyone needs a cell phone, some people have learned to communicate in other ways. Other countries, like Europe, have realized that cell towers can be injurious - Ms. Nelkens felt that it was too bad health issues can not be addressed.

Chair Kendall asked if anyone else would like to speak. He said that the Board had collected much data, and that this would be the last time for the public to speak in a Public Hearing.

Mr. Haggett moved to close the Public Hearing. It was seconded by Mr. Scales, and approved by the Board. The Public Hearing was closed.

Chair Kendall asked if anyone else who would like to speak, ask other questions, or add any other information

Chair Kendall explained that the Board will begin deliberation, but had many questions and would like to speak with Town Counsel. Town Counsel and the Board will discuss questions on July 2, 2009.

Attorney Wilkins stated he would not be able to attend the July 7, 2009 meeting. He will send a representative to answer factual questions - most likely Shannon McManus (KJK Wireless) who has attended most meetings.

Chair Kendall stated that there was an enormous amount of material to review. The Public meeting of File #2009-01ZBA will be continued to July 7, 2009.

Business Meeting:

Approve June 16, 2009 minutes  Mr. Haggett moved to approve the minutes as amended. Mr. Crafts seconded the motion, an the minutes were approved.

Approve June 23, 2009 minutes Mr. Haggett moved to approve the minutes as modified. Mr. Scales seconded it, and the minutes were approved.

Discussion of possible new  alternate Mr. Richard Allen (Rick) has requested to become an alternate of the ZBA. He has talked with the Town Administrator and it was discussed at the 6/29/09 Selectmen's meeting. The Board members voted to recommend Mr. Allen to the ZBA. The Selectmen will discuss the appointment as an alternate at the 7/20/09 meeting.

At 8:22pm, Mr. Haggett moved to close this portion of the Public Meeting. It was seconded by Mr. Giffin, and approved.

Respectfully submitted,

Diane M. Chauncey, Planning Assistant,
On Behalf of the Antrim Zoning Board of Adjustment

Town of Antrim, NH P.O. Box 517, 66 Main Street Antrim, NH 03440
Phone: (603) 588-6785    Fax: (603) 588-2969    Monday - Thursday 8:00am - 4:00pm
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