ANTRIM ZONING BOARD OF ADJUSTMENT
November 15, 2009 Meeting
Members & Staff Present: Diane Chauncey (Staff) Doug Crafts (Member)
John Giffin (Member) Ron Haggett (Member) John Kendall (Chair)
Peter Moore (Planner)
Members & Staff Absent:
Frank Scales (Member) Don Winchester (Alternate)
Peter Burwen (Applicant)
Doug Wilkins (Attorney – AT&T) Dave Kirkpatrick (Iron Horse Audio)
Shelly Nelkens (Resident) Shannon McManus (KJK Wireless-AT&T)
Ken J. Kozyra (KJK Wireless) Bonnie Achterhof (Resident)
Peter Stanhope (Stanhope Appraisal) Maureen Watts (Applicant)
Connie Vandervort (Abutter)
7:00 Review Session
Review Minutes of November 10, 2009
Review materials for meeting
7:15 Public Meeting:
Rehearing application of Mr. Peter Burwen, et al, for previous granting of Special Exception and Area Variances by ZBA to New Cingular (AT&T), dated July 14, 2009, for proposed telecommunications facility to be located at 22 High Street, Antrim, NH. Map 244, Lot 6 – Planning Department Case # 2009-01ZBA
Chair Kendall opened the meeting at 7:25 after he and the Town Planner had rounded up two horses and a burro that had decided the grass on the Presbyterian Church lawn was a better dinner choice than what Mr. Paul Hardwick was proposing for dinner. Chair Kendall introduced himself and the other Board members. He explained that this would be a continuance of the Public Meeting. He explained the procedure, and then asked Attorney Wilkins to proceed.
New information and materials presented to the Board:
Capital Appraisal Associates, Inc. (via Mr. Burwen)
Rebuttal and Correction to Statements Made at ZBA Rehearing of November 10, 2009
February 2, 2009 - Stanhope Group Appraisal and Consultants Report of February 2, 2009
Attorney Wilkins addressed several questions that had been raised at the November 10 ZBA meeting:
· Berm as a sound barrier - it was determined that the berm would need to be constructed 10' high, 5' wide at the top, 45' wide at the bottom and 65' in length. The trees that are presently there would need to be removed.
· Sound - the cell tower is within the standards. Attorney Wilkins stated that contrary to what the abutters have said - sound is an issue that can be dealt with. He said that the generators could be removed but cell phone service during a power outage is necessary. He summed up the noise discussion by saying that noise was not grounds for denying the request.
· Mitigation - AT&T is willing to outfit the sound creating equipment with mufflers
Attorney Wilkins introduced M. Stanhope of The Stanhope Group whose specialty was reviewing "special properties". He referred to Page 3 of his February 9, 2009 report (which is available at Town Hall).
Impacts of the Proposed Tower
Traffic - Noticeable during construction phase - after - that once a month
Lighting - None
Noise - "Any noise emitted from the air conditioning units and back-up electrical
generator located in the proposed tower compound will be attenuated by the distance to the property lines."
Visual - Paired Sales Analysis - Conclusion - "As a result of the above analyses, it is the appraiser's opinion the sitting of the proposed communication tower would not result in diminution of value to the property in the subject neighborhood.
Mr. Stanhope said that he found it interesting that there was no mention of noise influencing real estate values. He said that it is not usually mentioned because the sound is not unusual. He pointed out that the other two appraisers (who had reviewed properties for the Cell Tower) also did not mention noise as a factor in the diminution of properties.
Chair Kendall asked for questions from the Board. there were none.
Attorney Wilkins had general comments:
1. Visual – AT&T would be willing to construct a galvanized steel pole. He felt that since there were no "straight on views" of the pole, the tower would blend well with the existing trees.
2. Fall Zone – The proposed tower was within a safe distance from as determined by the Antrim Zoning Ordinance. AT&T was fully compliant and it was not a basis for denial.
3. Special Exception
· The proposed use is allowed by special exception.– authorized because tower
· The neighborhood would not be adversely affected because the mitigation proposals set forth by AT&T would not change the neighborhood. The presentation by Mr. Stanhope had shown that the property values would not be adversely affected. .
· There are no odors.
· The TCA of 1996 act overlays the entire proposal. The Town of Antrim needs greater coverage and the appropriate facilities to provide the coverage.
Attorney Wilkins felt that the criteria for the Special Exception remain established and was actually stronger now than in the summer. He repeated that the property values would not be diminished the noise can be mitigated.
Attorney Wilkins summed up the height variance by reviewing Mr. Mckenney’s (local forester – N.E. Forestry Consultants) report with particular emphasis on the aberrant trees visible in each quadrant surrounding the proposed cell tower. The height of the proposed tower is necessary for transmission of the signal as well as space for future co-locators. He emphasized that if the tower were not a certain height then the town would need more towers. The water tower did not present an alternative because the gap in coverage would still be evident. The Greene property in Hancock was not available to AT&T now. He reminded the ZBA that the Board must look at what is available to them.
Attorney Wilkins also reviewed the court cases that have been introduced during the past 7 months. (Such as - Chester Gun vs. the Town of Chester; Greenfield ZBA decision)
Mr. Haggett asked if the proposed tower was to have just one company, would the height of the the tower be lessened?
Attorney Wilkins said that the tower needed to be above tree clutter – the height variance does not go away.
Mr. Crafts and Mr. Giffin asked questions concerning the gap in coverage, alternated locations, and other towers to cover the gaps.
Attorney Wilkins said that if the proposed tower is not constructed at 22 High Street, a problem will created of not willing the gap in coverage Additional towers will be necessary because the coverage won’t be available. Attorney Wilkins warned that the Town of Antrim should be very careful with its first tower.
Mr. Kozyra added that proposing an alternative site could become a trade-off. The first tower should be carefully placed so that there are not more towers than need be. The Town of Antrim should make sure that all objectives are met with the first tower so that the first tower is not starting with a gap in coverage.
Attorney Wilkins said that the ZBA should review Mark Hutchins RF report that graphically plots the necessity for coverage and that the coverage is determined by routes and population.
Chair Kendall asked why the water tower would not make an agreeable location. It seemed to him that the Water Tower would give more coverage to the Antrim people – it was a more populated area and would cover the public beach. It would seem to him that AT&T was only looking at Route 202 and not the coverage for Antrim people.
Attorney Wilkins said that under the TCA of 1996 a ½ mile gap is unacceptable. The first tower is very important. More towers will be needed, which will be developed one by one. AT&T is unwilling to leave a 1/2mile gap on the first tower.
Chair Kendall stated that he was not trying to argue the necessity for a cell tower but maybe it would be better to have more towers rather than less – if the towers were desirably placed.
Attorney Wilkins disagreed and stated that the TCA does not make the ZBA a network designer – that is AT&T’s job – to design the network so that the towers are most advantageously situated.
Board members continued to ask about alternative sites for the proposed cell tower.
Attorney Wilkins continued to state that the gap in coverage must be filled by the current proposed tower, and that inevitably future towers would be necessary.
Chair Kendall said that the gap in coverage seems so minute.
Attorney Wilkins said that ½ mile difference is a big difference when it comes to cell towers and stressed the importance of the best placement for the first tower. He felt that the ZBA should be concentrating on noise and property values – that is the nuts and bolts of what theZBA should be looking for the Town of Antrim.
Mr. Moore asked the Chair’s permission to ask questions. He wanted clarification on property valuations. He wished to know Attorney Wilkins’ definition of market value. He wondered about Vern Gardner's’ report that the longer marketing time in which a homeowner was not able to sell their home diminishes the value of that home?
Mr. Stanhope stated that the Russo opinion did not find that there was a diminution of value to the longer time on the market.
Mr. Moore said that he found the appraisals confusing with many numbers thrown about. He was particularly interested in properties that are in close proximity to a tower – as close as the homes would be to the proposed tower on High Street.
Mr. Stanhope said that he had chosen rural settings. The Stratham condexes that he has used as a comparable were in close proximity to towers.
Attorney Wilkins said that the concept of proximity is not something the ZBA should be looking at.
Mr. Moore stated that he was not talking about health affects but rather proximity of the tower to a home.
Mr. Stanhope pointed to page 12 of his report in which a tower sits across the street from one of the comparables.
Chair Kendall asked if Attorney Wilkins wished to add anything further. Attorney Wilkins declined and the ZBA took a 5-minute break.
Chair Kendall said that he and the Board would listen to new information only.
Mr. Burwen stated the following: –
· Article XIV-B – the ZBA should read Performance and Design standards
· Read the information concerning camouflage of ground mounted facilities– (6)
· He contends that the 150’ minimum is not there -only 60 ‘ to Oicles’, 32 High st property
· Everything is visible now that the leaves have fallen – stick trees – ability to see Oicles’ living room
· The Ordinance is clear - only the Planning Board has the authority of a site plan review
· The intent of the ordinance is for the protection of the citizens – the 150’ is not there and no variance has been requested
· Concerning property values – he asked ZBA to read his report and in particular his summation and conclusion. He continues to stand by his earlier testimony that it is his opinion – a diminution in value of the neighboring properties would exist if the Cell Tower were constructed.
· Instructs the ZBA to decide that the surrounding properties will not devalue.
· There are two contending appraisals. The Board has not been convinced with 100% surety that the diminution will not be diminished in any way.
· On setting a precedent: Mr. Haggett said that the ZBA does not set precedents.
Attorney Wilkins said that the first tower would set a precedent.
A cell tower near the Oicles property will set a precedent.
Therefore this decision will set a precedent of sorts.
· Reviewed the Wayne Greene parcel in Hancock – he continues the site as a viable alternative to the 22 High Street site.
· There should be consistency in the “spirit of the ordinance”. Greenfield denied on spirit of the ordinance. He would like to see the decision made on the spirit of the ordinance. The property is not unique – the water tower and the Greene property could be used.
· Mr. Burwen repeated that he has presented the facts to the ZBA that there is no uniqueness to the 22 High Street property. He requested that the Board interpret the facts with discretion, stick with the criteria, and he hoped the “Board uses them this time”.
Chair Kendall thanked Mr. Burwen for his comments. He also said that the water tower and the Greene’s property were not to be considered as alternative sites.
Mrs. Watts thanked the ZBA and said that she was thankful that the Board knows the difference between the general public and the residents of the proposed cell tower neighborhood.
She read from a letter (some of her points are listed):
· She had to switch shifts to be able to attend meetings
· Her son, Sean, has been understanding because he does not want a cell tower behind his house
· The applicants have had to bear the financial cost of the hearings - $1600.
· Through the generosity of others there have been donations to defray cost
· The meaning of neighbor helping neighbor has become relevant.
· She has been struck by community and names some of the people in the H&H parade
· Sherry Greene – amazing to offer her property – true compassion
· Thank you to newspapers
· Power of prayer
· Asked the ZBA to please consider impact
Connie Vandervort reviewed her story of coming to Antrim, when properties were “selling like hotcakes”. That time has passed. She had come from Nashua where there were many cell towers and power lines. She wanted to get away from that and had actually turned down three “for sale” properties because they were too close to power equipment. She loves many things about Antrim and has enjoyed living here. She stated that Attorney Wilkins has done his best for AT&T. Now she expected the ZBA to do their job of protecting the Antrim citizens. The ZBA will be setting a very important precedent. and she continued, ” no matter what you do someone will not like you. Good Luck!”.
Mr. Kirkpatrick stated some of the following phrases and said that he would have written material for the Board by November 27, 2009:
· TCC act – A letter to force – hands tied – Pertinent portion left out of the application
· Section 332 c – preservation of local authority (find) – an empowering document for the Board
· Pelham case – interesting discussion – 2 inconsistent conclusions – property value diminished prop not diminished, reminds that experts are not needed with reasonable judgments
· aesthetics, character of neighborhood – reasonable people can determine
· reasonable to conclude that there is
· confusion about cell tower location near home
· lifestyle and choice of home – what if ct goes up – should they move
· detrimental affect
· a lot of this stuff can not be mitigated – noise will be unwelcome – visual – pretty close up –
· collocation and gap in coverage – not looked at – not much planning involved – 202 gap – cell tower requirements – want less towers – good decisions now – AT&T does not believe that collocation will occur at this site – does not think that - pop them down willy nilly as they see fit
Ms. Nelkens said that there is not a lot to say. The ZBA can not consider health impacts – but buyers will think of health contacts. She would not want to buy a house that is near power lines or cell towers – considering Antrim’s taxes and what they may be. Rt 202’s safety is not as important as a hunter in the woods. Have other sites been considered. Believe all is moot – Planning Board has the jurisdiction not the ZBA – does not understand that the ZBA has any jurisdiction. She hoped that the Board will make the right, ethical decision.
Chair Kendall said that he wanted to start deliberation at the next meeting. He wanted to close the Public Hearing and set the date for deliberation. He continued that the Board has been given a tremendous responsibility. The Board has read all submitted material and will review it again before the deliberation on December 8. 2009.
Mr. Haggett moved to closed the Public Hearing, Mr. Crafts seconded the motion and it was approved.
Anything to be submitted must be done by November 27, 2009. The Board will read and absorb – there will be no further comments.
December 8 – 7:15 - continued meeting
Approve Minutes of November 10. 2009 Mr. Haggett moved to approve the minutes as presented. Mr. Crafts seconded the motion and the minutes were approved by all.
At 9:00 pm, Mr. Haggett moved to adjourn the meeting. It was seconded by Mr. Giffin, and approved.
Diane M. Chauncey
Planning Assistant, On Behalf of the Antrim Zoning Board of Adjustment