ANTRIM ZONING BOARD OF ADJUSTMENT MINUTES
Agenda for July 21, 2015 Meeting
Industrial Tower and Wireless
Members & Staff Present:
Megan Osgood (Land Use Assistant) Ron Haggett (Vice-Chair) Shelley Nelkens (Member) Frank Scales (Member) Carol Ogilvie (Consultant Planner) Ray Ledgerwood (Member) John Giffin (Chair)
Absent: Ray Ledgerwood (member) John Kendall (Alternate)
Public Attendees: Fill in.
7:00PM Public Meeting:
Chair Giffin opened the meeting at 7:05PM. He introduced the ZBA members and explained the Public Meeting procedure.
Notice is hereby given that the Antrim Zoning Board of Adjustment will be holding a public meeting at 7:00 PM Tuesday, July 21, 2015 at the Antrim Town Hall to consider a request by Art Kaufman for a Motion for Rehearing for the previous granting of a Special Exception and Variance by the ZBA to Industrial Tower and Wireless, LLC dated May 26, 2015, for a proposed cell tower to be located at 115 Pierce Lake Road, Antrim, NH. Map 206, Lot 87.1-87.4 – Planning Department Case # 2015-01ZBA.
Chair Giffin asked the public attendees if they have signed up on the sign-up sheet.
Mr. Davis asked Chair Giffin if he could ask a question and Mr. Giffin agreed.
Mr. Davis referenced 7.6E of the ZBA Bylaws and stated that the Board should approve the minutes first.
Ms. Ogilvie stated the Board was not under any obligation to go over the minutes first. Nor were they under any obligation to even approve the minutes at this meeting.
Ms. Ogilvie stated that the rules of procedure does not meet because it is not a Public Hearing.
Mr. Kaufman objects.
Mr. Giffin stated that the minutes would be completed in the order of the agenda.
Mr. Haggett stated what the Zoning Boards job was and that the Planning Board is bound by the ordinance and the Zoning Board acts in a different manner.
Mr. Haggett stated the differences between the Zoning Board and Planning Board.
Zoning Board-Is strictly responsible for adjusting the zoning ordinance of the town to fit situations when requested.
Planning Board-Bound by the ordinance and makes the decision if something will or will not take place.
He stated that the special exception has been appealed and should have new evidence.
Mr. Haggett stated that the Isotope RF Review and the petition should be concentrated on as far as considering the appeal.
Ms.Nelkens stated that there was an accident on Rte.9 and wondered why ITW was stating that there is no coverage.
Mr. Giffin said that he could not say where the 911 call actually came from on Rte. 9. ITW only has to show that there is a significant gap.
Ms. Nelkens wanted to know if the Board should discuss other information in the appeal.
Ms. Nelkens feels that the Board should have asked for an independent RF study.
Mr. Haggett stated Article 14.B and that was something that the Planning Board could have asked for.
Ms. Nelkens asked if that was something that the Zoning Board should have just done.
Mr. Haggett stated that the Zoning Board was not site selectors.
Ms. Nelkens asked why the Board even listened to the RF study/report that ITW supplied if it wasn’t the Zoning Boards job.
Mr. Haggett stated that the information was submitted by the applicant and therefor taken into account.
Mr.Giffin reminded Ms.Nelkens about the 96 Decision by the US courts on Cell Towers.
Ms. Nelkens asked how the Board Members should know if the applicant’s information is accurate.
Ms. Ogilvie stated that the Board has to decide if the information that the applicant presented is accurate and correct.
Ms. Ogilvie explained that the board needs to decide two things tonight. Did the Board make an error in judgement or is there any new information?
Ms. Nelkens stated that she does not know if the burden of proof has been met.
Mr. Haggett stated again to Ms. Nelkens that the Planning Board deals with the site selection.
Ms. Nelkens said that at the Planning Board Meeting she attended they stated that they cannot change the height.
Mr. Haggett stated that the Planning Board has not read 14B and that they can decrease the height but not increase it.
Ms. Nelkens asked if the tower is visible from route nine.
Mr. Haggett stated that cell towers are visible. He referenced the 96 Communications Act.
Mr. Giffin stated that cell towers are visible and they cannot be blocked. It does not really matter the sight because it would become a prohibition.
Ms. Nelkens stated that it is the accuracy of the statements made by ITW that bothered her because the visual had not been verified.
Ms. Nelkens is concerned by the accuracy of Grill’s statements in regards to that issue.
Mr. Giffin also stated that he feels the board covered the visibility in their meetings in order to grant the variance.
Ms. Nelkens stated that she is skeptical.
Mr. Scales stated that we are here to look at the appeal only.
Ms. Nelkens wanted to go through each point of the appeal.
Mr. Giffin reiterated that the appeal has to show an unreasonable or unlawful decision.
Ms. Nelkens started with preserving unique view sheds and scenic values of the town.
Mr. Haggett stated that it is a Planning Boards decision and site review.
Mr. Haggett stated that if you look at the Zoning Ordinance antennas are exempt from the height restrictions in the ordinance. They undertook the variance because it was in the application.
Ms. Nelkens wanted to know why they even did an RF study
Mr. Giffin said that ITW provided that information to show the Board that there was in fact a significant gap in coverage. They provided it to make a detailed application.
Ms. Nelkens- Can the Planning Board look for other sites?
Mr. Haggett- Yes, they could deny the placement.
Ms. Nelkens- Should the Zoning Board look at other sites?
Mr. Haggett- No.
Ms. Nelkens- Could the Zoning Board have requested their own RF study be conducted?
Ms. Ogilvie- Yes, but within reason. The Board is only there to look at the evidence in the application that was presented.
Mr. Haggett said that it is not up to the Board to do site selection.
Mr. Haggett stated that the petition does not have much effect and it is not a popularity contest.
Mr. Giffin stated that an appeal has to be an unlawful decision. Process errors stated that the spirit of the ordinance was not answered.
Mr. Haggett stated that the vote on the criteria is done as a whole and not done individually.
Mr. Giffin stated that the Town Counsel has advised them that they have legally followed to correct process.
Mr. Scales believes that we need to be moving along. And make a decision on the appeal itself.
Mr. Haggett read a portion of the attorney’s letter.
Mr. Haggett asked again that Ms. Nelkens reads 14.B
Ms. Nelkens stated that she has a major concern with the process.
Ms. Ogilvie said that the ZBA is not under any obligation and it would be inappropriate of them to go out and pick sites. The application needs to be looked at and a decision needs to be made based upon what information they have in front of them based on the criteria of the Zoning Ordinance.
Mr. Giffin asked if there was anything else anyone on the Board that needs to be talked about.
All members had no additional comments or questions.
Mr. Haggett moved to a vote.
Mr. Scales seconded.
Motion to decide the issue on the appeal. Yes- accepts the appeal No-Rejects it.
Roll call vote:
Mr. Giffin- no
Mr. Haggett- no
Mr. Scales- no
The vote of 3-1 the Appeal has been rejected.
Mr. Davis wants to be included in the revising minutes of the last meeting.
Carol stated that there isn’t even a legal requirement to vote on minutes. It is not up for public discussion and is up to the Chair if he will allow the Public to comment.
Mr. Giffin asked how the process would work if they did allow the public to make changes to their liking.
Ms. Ogilvie replied that they can be submitted and reviewed and the minutes would show that they were amended or revised accordingly.
Mr. Kaufman said that he would like them to be submitted.
Mr. Giffin would like all recordings kept until the appeal process is exhausted.
Mr. Scales-Line 45 (add).
Mr. Haggett-Line 227 Not to exceed 100ft.
Mr. Haggett-Line 128 overridden by the benefit.
Mr. Kaufman wants the Board to answer a question of impropriety by the Board.
Ms. Ogilvie stated that it should be raised at the start of a Public Hearing. It is basically off the table at this point. She also stated that the Board should not take up those kinds of questions at this point.
Mr. Haggett stated that he hired Mr. Robblee to shovel off his roof this winter and paid him for his services. Mr. Haggett stated it was a commercial transaction and did not feel in any way that there was an appearance of impropriety.
Mr. Kaufman would like it noted that his changes were submitted.
Mr. Giffin stated that was what the Board was deciding right now.
Mr. Haggett stated that 150 ft. was allowed because of the collocations.
M. Haggett asked if the height can be decreased. Ms. Ogilvie stated that it cannot be decreased.
Mr. Haggett made a motion to accept the minutes as corrected.
Ms. Nelkens moved to include Mr. Kaufman’s document as an addendum to the minutes.
Mr. Scales seconded.
Mr. Haggett moved to approve the 5-26,2015 Meeting Minutes; Mr. Scales seconded. The minutes approved by a unanimous vote.
At 9:40 PM, Mr. Scales moved to adjourn the meeting; Mr. Haggett seconded. All approved to adjourn the meeting.
Megan Osgood, On Behalf of the Antrim Zoning Board of Adjustment