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Zoning Board of Adjustment Minutes 07/07/09

July 7, 2009 Meeting
#2009-01ZBA (continued)
New Cingular Wireless PCC (AT&T) PWSF (Cell Tower)

Members & Staff Present:         Diane Chauncey (Staff)  Doug Crafts (Member)
John Giffin (Member)            Ron Haggett (Member)     John Kendall (Chair)           
Peter Moore (Planner)               Frank Scales (Member)       Don Winchester (Alternate)                                                                                      
Members & Staff Absent:   None  
Public Attendees:  
Ben Pratt (Resident)                                    Stephen Anderson, (Attorney, Anderson/Kreiger)
David Kirkpatrick (Resident)                            Peter Burwen (Abutter)
Tony Koban (Abutter)                                    Maureen Watts (Abutter)
7:00 pm Review Session:

7:15pm Public Meeting:
Chair Kendall opened the Public Meeting at 7:17pm and introduced the Board members. All five members were present as well as one alternate. Chair Kendall explained the meeting procedure. The Public Hearing had been closed at the June 30, 2009 meeting, and therefore the Board would not accept any new information and no further testimony. The Board would deliberate the Special Exception by discussing each of the five criteria. If a vote occurs, each member will cast a single vote. There must be at least three to two in favor of the Special Exception. Anyone who is affected by the decision, has a right to appeal the decision within 30 days of the vote. If the Special Exception is approved, the Board will deliberate the two variances.

Chair Kendall asked Mr. Moore to read the Public Notice which stated the relief that AT&T seeks in order to construct a ground mounted PWSF on 22 High Street (Map 244, Lot 6) – Special Exception for the use and two variances - an area variance from the frontage of 200’ for non-residential use in the residential district and an area variance from twenty feet (one for average height above the tree canopy and the other for relief from the 200’ frontage).

Mr. Moore read the criteria for a Special Exception:
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 a use.
2.) Such approval would not adversely affect the neighborhood, nor otherwise be injurious, obnoxious or offensive.

3.) The use will not create excessive traffic congestion, noise, or odors in the neighborhood where it is proposed.
4.) Such approval would be consistent with the intent of the Zoning Ordinance. (Amended March 11, 2008)
5.) Adequate and appropriate facilities will be provided for the proper operation of the proposed use.


The Board members discussed each of the criteria. Some of the issues that were discussed are listed under each criteria.

(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.
·       Mr. Haggett pointed out that this is the first such use in Antrim and it was agreed that similar to an existing use was not relevant.
·       Mr. Haggett further explained by saying that AT&T had established a coverage gap along Route 202 and had provided evidence that the proposed site at 22 High Street was the best solution to remedy the gap, (AT&T radio frequency (rf) engineer, Mr. Kevin Brewer, and confirmed by the Antrim rf engineer, Mark Hutchins). Mr. Haggett asserted that this met the burden of proof and concluded that this was an appropriate use for the 22 High Street site in accord with the first criterion.
·       Mr. Giffin felt that the proposed location is not the most appropriate location. He said that the  Town of Antrim Water Tank  with a 100' monopole on Pleasant Street would be a  better location. He reasoned that although there is a gap in cell phone coverage on Route 202, there is a gap in coverage in other locations in town. He then quoted from page 5 of Mark Hutchins "Wireless Facility Analysis", 4.i. in which the Third Circuit offered a guideline in its Ho-Ho-Kus decision. If the PWSF were to be constructed on the Water Tank parcel, there would be a 3% loss of coverage on Route 202, but an 18% gain on Route 31 and a 31% gain in Downtown Antrim. Mr. Giffin had determined the percentages by counting the squares on the Mark Hutchinson maps in the aforementioned "Analysis"(that depicted the coverage in the Town of Antrim) and by developing an overlay for each map.
·       Gregg Lake would not have coverage with the proposed site - some Board members saw this as a safety issue while another Board member said that Gregg Lake has a land line
·       Chair Kendall said that the Water Tower had a tree buffer, was in a less densely populated area, and many of the abutting properties do not have residences. He said that the Water Tower parcel would be a more appropriate use
·       Mr. Haggett reminded the Board that he had asked Mark Hutchins (RF Engineer) after his presentation at the meeting of June 30, 2009, which site was the best solution to remedy the coverage gap and he had answered that it was the 22 High Street site.
·       Mr. Haggett read from Mr. Hutchins conclusion in his report on page 8 at the end of the first paragraph "that the water tower site moved coverage to the west of route 202 and the proposed site hill provides considerable blocking to its east".
·       Mr. Moore quoted from an email from Mr. Hutchins, dated June 23, 2009, referring to the Water Tank site, “…as you head north, the impact of terrain between that site and Route 202 becomes more pronounced. The difference in what ATT considers “adequate” (and what I think is marginally acceptable) by using the water tank site (at 100’) in comparison with the applied-for site/height is that almost half mile of route 202 within Antrim and at least 20 acres along the highway fall below the – 84dBm threshold.” Referring to page 4 § 4.i. of the “Wireless Facility Analysis” prepared by Mr. Hutchins, dated June 15, 2009, Mr. Moore pointed out that the report states that the Congress did not define what “adequate coverage” is in the Telecommunication Act of 1996, but that Mr. Hutchins report does cite three cases where 3 cellular communications companies did establish “adequacy levels” appropriate to their needs: (1) VoiceStream at a Concord, Ma site  -91dBm signal strength, which VoiceStream uses for on-street coverage, (2) Omnipoint/T-Mobile -90dBm on-street level, (3) ATT, “…we can conclude that between -95dBm and -90dBm is an adequate on-street level. But a -90dBm level in a yard or outside a vehicle almost always means a lower signal inside a vehicle and even less inside most buildings. Indeed, the applicant claims that “AT&T’s facility must generate signal strength of a least -82dBm to provide suitable “in-vehicle’ wireless coverage”…”
·       Mr. Giffin stated that he is in a predicament concerning the five criteria – although, it would seem that the ZBA had the authority  to rule over certain criteria, the Telecommunications Act of 1996 placed an umbrella over many of the areas in which the ZBA could make decisions and that the Federal Law overshadows the ZBA’s role. He reiterated that although AT&T would have a small percentage gap, there would be a significant gain in other areas of the Town of Antrim.
·       Chair Kendall expressed his concern about the cell tower and public health and safety possibly the public beach.
·       Mr. Haggett said that a land line is available at the Town Beach. The populated area of the Town of Antrim is the east side of town and Mr. Hutchin’s report is supporting conclusion to the AT&T report.
·       Mr. Moore presented a spreadsheet that he had prepared for the Board. As Mr. Moore stated this spread sheet is  a compilation of the “Forward Link Signal Strength” 250’ parenthetical study-point values listed on the RF (Radio Frequency) maps included with the RF Wireless Facility Analysis prepared by Mark Hutchins, dated June 15, 2009. As stated, this spread sheet was created to make it easier for the Board (and anyone else) to compare “forward signal strength” for the various sites where RF analysis was performed.
·       Mr. Haggett again reminded the board that a denial of the application requires written reasons backed up with evidence, that the Board should focus on the application as submitted and not try to create an alternate application.
·       The discussion continues.
·       Mr. Giffin discussed the Grafton, MA court case. Mr. Haggett states that if there is a Denial – there must be a written decision with substantial evidence
·       Mr. Giffin states that an approval could be grounds for litigation.
·       Mr. Haggett states that the Board should be strictly focused on the applicant and the application. The Telecommunications Act of 1996 is very specific.
·       Chair Kendall asks is the cell tower an appropriate use in a residential district?
·       Mr. Haggett stated that the Zoning Ordinance is written in such a way that a cell tower can go in any district (by Special Exception) except the Rural Conservation district. The PWSF Ordinance states that a complete site plan review is required by the Planning Board and that all the major functions of  a major site review will be performed by the Planning Board.
·       Chair Kendall said that the Special Exception is used to control the location of the Cell Tower and that the decision making process must start with the Zoning Board
of Adjustment.   
·       Mr. Haggett agrees that the ZBA has the obligation to determine an appropriate location. The Planning Board decides the physical construction.

Chair Kendall inquires any further discussion before moving on to the next criteria to be discussed. The Board had nothing further to say at that time.

(2.) Such approval would not adversely affect the neighborhood, nor otherwise be injurious,             obnoxious or offensive.
·       Chair Kendall said that during the site review, he noticed that if the tower were more central into the Dunlap property, the placement of the tower would have been better for the abutters.  
        He felt that location is a huge part of the decision making process and the proposed placement  is too close to the lot lines.
·       Mr. Haggett said that the ZBA is not doing a site plan review
·       Chair Kendall said that the ZBA must make a decision.
·       Mr. Haggett said that the ZBA is provided with the Zoning Ordinance and that the Board should comply with the information that is stated within the Ordinance.
·       Mr. Haggett stated that the proposed monopole would be constructed in a wooded area, be self-contained, self-operating with only periodic maintenance – how would this be injurious, obnoxious, or offensive – after awhile it would blend into the landscape
·       Mr. Giffin quotes from the AT&T application concerning appropriate location PG 17 (6) applicant wants to put the facility within 60 feet of the western boundary. Our zoning states that a minimum of 150 feet of tree barrier.  We have a better location. Town Counsel has told us that if there is another appropriate location, we could deny the Special Exception.
·       Chair Kendall stated that there is a huge affect on the three houses on High Street  - #30, #32, #38
·       Mr. Haggett discussed the process for applying for a PWSF and how the process has changed since the introduction of the Ordinance.
·       There was a short discussion concerning the information that the ZBA has digested since February. In another scenario, the Planning Board would have absorbed much of the information that the ZBA had become involved in. Mr. Haggett felt that the Board should understand that the information presented to them is not information that is normally part of the ZBA jurisdiction.
·       Mr Giffin stated that the ZBA asks for structure locations in relation to lot boundaries all the time when determining a variance or special exception.
·       Chair Kendall asked if the members are prepared to move on with the deliberation.
·       Mr. Scales agreed with Mr. Haggett – the Board should be doing the work of the ZBA, not the Planning Board.
·       Mr. Crafts stated that the independent radio frequency engineer hired by the town has stated that the 22 High Street location would be the best location for the proposed Cell Tower.
·       Mr. Giffin stated that AT&T has a gap and that they are not interested in the remainder of the Town of Antrim. The ZBA is in a unique position to present another location. The Water Tank has 97% of what AT&T is asking for.
·       Mr. Haggett said that this is a reason for denial because it is not what the application has requested. The application requested that AT&T fills the coverage gap. Both radio frequency  engineers have said the same thing. The best location to fill the coverage gap is 22 High Street.
·       Chair Kendall said that he understands that AT&T has a gap, but that the ZBA can give an alternative site if the site is good or better than the proposed site.
·       Mr. Haggett, in his judgment, has focused on what has been asked for. If the ZBA denies the applicant’s request for a Special Exception because of geography, he is not sure it is a sustainable action.
·       Mr. Giffin feels that it is very black and white.

At this time, Chair Kendall asks the Board to move on to the remaining criteria.

3.) The use will not create excessive traffic congestion, noise, or odors in the neighborhood           where it is proposed.
·       Chair Kendall does not feel that traffic will be a problem. Odors are not a concern, except for the once a week generator test, which can be scheduled during daylight hours. Noise is a concern  - he felt that he has been unable to hear the 49 dba that the  facility will emit when operating. Chair  Kendall feels that he needs to hear the actual noise before he can commit to the “will not create and excessive noise in the neighborhood” .
·       Mr. Giffin refers to the Noise Level Study submitted by the applicant, reads statistics from the Noise Study. He felt that three of the abutting homes would be in a noise level like a daytime suburban area as opposed to a nighttime suburban area.  He asked, "if you would want to hear that?" Tests were done at the site – 49dba with leaves off – would be substantially louder if no intervening vegetation especially since the applicant is putting the facility only 60 feet from the boundary.
·       Chair Kendall state that it would be difficult for him to make a determination because he has not heard the noise level of an operating PWSF.
·       Mr. Giffin stated that he is having a conflict with three of the five criteria.
·       Mr. Crafts asked about the nearest house to the Water Tower. He felt that wherever a PWSF is proposed, there is the potential for  a conflict.
·       Chair Kendall was concerned by the number of carriers on the tower and how much more noise the co-locators would emit.
·       Mr. Haggett said that co-location is the goal of the tower owners.
·       Chair Kendall stated that he continues to be concerned by the noise level and that he is not sure  of the 49 dbls sound
·       Mr. Giffin stated that all five criteria must pass and he is having difficulty with three of the criteria.
·       Mr. Haggett stated that the Board might need to hear an operating site.
·       Mr. Crafts said that Attorney Wilkins has said in his testimony that the sound would not be offensive.

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

·       The Board members agreed that the request is a permitted use and so therefore no objection.     
(5.) Adequate and appropriate facilities will be provided for the proper operation of the                      proposed use.

·       The Board members agreed that adequate and appropriate facilities will be provided for

Chair Kendall states that the Board cannot make a decision - not knowing the noise level of the tower.
·       Mr. Giffin read Mark Hutchinson report which discussed adequate coverage in the Ho-ho-kus decision is
·       Mr. Haggett said that the Ho-Ho-Kus considerations are vastly different from Antrim's population and that those considerations are not appropriate for Antrim
·       Mr. Moore tried to clarify, relative to the Ho-HoKus case, and Mr. Haggett’s assertion, that likely more residential growth will occur in Antrim west and north, and perhaps more in-building/in-home service will be important.
·       Mr. Haggett states that the Ho-hocus considerations are vastly different from Antrim’s populations making the comparisons not appropriate.
·       Mr. Giffin discussed coverage and who lives where. He went back to the alternative PWSF site and that it would greatly improve coverage to more of the Antrim residents.
·       Mr. Moore stated that he believed the Board was not seeking ‘effective prohibition”, but that relative to Criteria 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,” that  the Powers of the ZBA  under RSA 674:33 Section IV, state; “…all special exceptions shall be made in harmony with the general purpose and intent of the zoning ordinance and shall be in accordance with the general and specific rule contained in the ordinance.” Mr. Moore went on to quote from the “Purpose” of the Residential District Zoning Ordinance, Article VI Section A. and it Principal Primary Uses, Section B.1.
·       Mr. Moore states that the neighborhood flavor and sanctity will be affected
·       The Board agrees that noise is a concern and that possibly the Board should listen to the noise

The Board discussed the numerous issues presented as part of the deliberation. Some of the Board members were conflicted with the issues presented.

Mr. Giffin moved to deny the application for a Special Exception based on failing to meet the first three criteria  -  not an appropriate location, would adversely the location, and the noise level is obnoxious.

Chair Kendall stated that the motion is out of order due to inappropriate language.

Chair Kendall asked Attorney Anderson if he would like to add anything.
Attorney Anderson had several points of order:
·       A request for Mr. Moore’s spreadsheet and email.
·       Transparent process – therefore the session with Town Counsel should be a part of the Public    Meeting

Mr. Giffin stated that doing so would be in violation of attorney-client privilege.

Mr. Haggett motioned to continue the public meeting to July 14, 2009 at 7:15pm at the Little Town Hall. Mr. Scales seconded the motion and all approved the motion.

Business Meeting:
Approval of June 30, 2009 minutes -  Mr. Haggett moved to approve the minutes as presented. It was seconded by Mr. Scales, and approved by the ZBA members.

Mr. Haggett moved to adjourn. Mr. Scales seconded, and the motion was 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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