ANTRIM ZONING BOARD OF ADJUSTMENT
April 14, 2009 Meeting
Members & Staff Present: Diane Chauncey Doug Crafts John Giffin
Ron Haggett John Kendall Frank Scales Paul Vasques
Paul Young Don Winchester
Members & Staff Absent: Len Pagano
Public Attendees: Kenneth Kozyra (Site Acquisition Consultant)
Peter Burwen (abutter) David Kirkpatrick (resident)
Mrs. Burwen (abutter) Jesse Lazar (resident & PB member)
Douglas Wilkins (Attorney, AT&T) Molly Lazar (resident)
Constance Vandevort (abutter) Leslie Bernardi (abutter)
Paul Achterhof (resident) Tony Koban (abutter)
Bonnie Achterhof (resident) Dana Primiano (Hancock resident)
Barbara Grant (resident) Margaret Warner (resident)
John Dunlap (owner) Rod Zwirner (resident)
Ruth Zwirner (resident) Shannon McManus (AT&T)
7:00 Review Session Review Materials
7:15 Public Hearing New Cingular Wireless PCS, LLC (AT&T) File #2009-01ZBA Special Exception to construct and operate a ground mounted Personal Wireless Service Facility (PWSF) and an area variance from twenty feet (20') above the average tree canopy height and an area variance from the frontage of two hundred feet ( 200') for non-residential use in the residential district. Chair Kendall convened the meeting at 7:15 and introduced himself and the Board, and stated that he was continuing the meeting from March 17, 2009. He listed the following members who would be voting members: Chair Kendall, Mr. Crafts, Mr. Giffin, Mr. Haggett, and Mr. Young. Chair Kendall asked Mr. Wilkins if he had any additional material he wished to present.
Attorney Wilkins raised a point of order. He felt that the five voting members should be the same as those who attended the March 17, 2009 meeting. Chair Kendall stated that this was not the criteria followed by the Board.
Attorney Wilkins planned to continue his presentation from the March 17 meeting and his principal goal for the April 14 meeting was to set up two items dealing with visual impact and radio frequency coverage:
1. Organize the site walk and balloon test - Attorney Wilkins said that the walk and balloon test
would clarify some of the abutters' issues. He felt that no one will be able to properly visualize the impact until the site walk occurs He felt that people can be more fearful of the unknown and that hopefully the balloon test would bring a greater understanding of the actual visibility of the proposed tower. Attorney Wilkins spoke particularly about the Burwen/Watts home, saying that their home is quite below the tower site, and he suspected that when the balloon is flown, the visual impact will be minimal. It will be good to experience the facts. He felt that when a Cell Tower proposition comes into a town, residents may be more fearful of the unknown and he would hope that the site walk and balloon test would clear things up.
2. A Radio Frequency expert is the other item. AT&T would like to provide the money to the
Town of Antrim in order that the Town can hire its own independent Radio Frequency
expert to evaluate and review the PWSF application. Attorney Wilkins is eager to get
that process going. Attorney Wilkin stresses that AT&T has a major coverage gap in this area and that the whole purpose of the application is to bring wireless service to the
Town of Antrim.
Attorney Wilkins continued with his presentation by going over documentation that had not been presented at the last meeting and to review items for those members of the Zoning Board of Adjustment and the audience who may not have attended the March 17 meeting. Although meeting materials had been submitted on March 11, 2009, they did not meet the 10-day in advance of the meeting rule. Attorney Wilkins then explained the following:
- Revised Plans prepared by Dewberry-Goodkind, Inc. - Attorney Wilkins explained that some of the sheets (TO1,GO1, CO1 - CO9, EO1-EO3) AND Plan Sheet CO1, CO3 had revisions and he explained some of the revisions:
- GO1 1 – shows pretty much the same proposal –monopole, number of feet from property values, and that the structure will be on a 11.2 acre parcel.
CO1 – shows relationship to High Street and includes a number of the abutters; helpful to know in relation to the tower. From this sheet, Attorney Wilkins wanted to point out that there are large distances from the boundaries – 570’ from the Burwen property, and would like to further explain the great distances when the site walk occurs and how there is ample coverage to conceal the structure.
CO2 – tree survey plan – has not changed since the last meeting but Attorney Wilkins did want to show another way to ‘look’ at the trees. The chart showed the tree size and species and the height and by the count thirty three of the trees are greater than seventy five feet in height. The significance of this is that the average tree height is under sixty feet and yet many of the trees are above the average tree height canopy and that the tower needs to be above the tree height in order to receive and send a signal. Another item of importance was in the photo simulations with the balloon test. The balloons were flown at 100’, 90’, and 80’, and it should be noted that the 80’ balloon could not be seen.
CO3 - no change in location or proposal, but certain additional distances and setbacks have been added in order to clarify and measure the distance. For example, the fence is shown as 370’ from High Street, and the fence is 177’ from the property line, etc.
CO5 – close up of both compound and proposed monopole – goal to have a three- carrier pole
Attorney Wilkins continued with an explanation of the report done by an appraiser.
Stanhope Group LLC -Appraisers and Consultants -Study to determine influence on property values
· Purpose of the inspection and analysis is to provide an opinion with respect to the influence on property values due to the presence of the proposed tower.
· Opinions are intended for use by Antrim's Zoning Board of Adjustment and are not intended to be used by any other party.
· Neighborhood Analysis – Ten residences in the immediate neighborhood, High Street can be expected to have partial views of the tower. The homes on Maple Avenue and Main Street may have limited view from a distance of 1/4 mile or more.. Main Street is not considered part of the neighborhood. The proposed tower may be visible from several homes and businesses along Main Street that is primarily commercial.
· Lighting for the proposed tower is not anticipated.
· Noise -Any noise emitted from the air conditioning units and back-up electrical generator located in the proposed tower compound would be attenuated by the distance to the property lines. The generator starts and self-tests once a month during the workday, typically 9am - 5pm. The a/c compressor is typical of the size found in three to four bedroom single-family homes.
· Paired Sales Analysis - review homes of equal value, one with a visible cell tower and the other without a cell tower. Comparable sales are analyzed and adjusted for property rights conveyed, conditions in the market, terms of financing, unusual sale conditions, differences in physical characteristics and location. The paired sales analysis of six sales from May 2004 to May 2006 indicated no negative market reaction to the location of cell towers within visual site of the improvements.
· Because of the above analyses, it is the appraiser's opinion that the siting of the proposed communication tower would not result in diminution of value to the property in the subject neighborhood. (The Stanhope Group report is available for viewing at the Town Hall)
Attorney Wilkins’s third item concerned the radio frequency engineer for AT&T.
Radio frequency Report and Alternative Sites Analysis
Summary of RF Engineer, Mr. Brewer' report stating that AT&T has a substantial gap in Antrim and that the proposed tower filled that gap in coverage and the report included maps that defined the information. The proposed location and height is necessary to fill the coverage gap.
After the last meeting, Attorney Wilkins had sent a letter to 'John Kendall, Chair of the Zoning Board of Adjustment' in which he wished to address three legal issues relevant to the comments of March 17, 2009:
1. AT&T's Coverage Gap and the Need for the Facility - He stated two court cases (Second Generation Properties, L.P. v. Town of Pelham) which expressly rejected the residents' idea of 'coverage gap' in no uncertain terms; and another case (Daniels v. Londonderry) which found that a carrier's significant coverage gap' should be considered for purposes of determining hardship justifying variance relief.
2. Radio Frequency Emissions - Attorney Wilkins stated numerous cases that explain that local law is preempted based upon extensive authority applying well-settled principles of preemption and federal communications law to render unlawful local regulations of emissions governed by the FCC.
3. Federal Telecommunications Act Generally - "The TCA was intended to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies to all Americans. The proposed PWSF will help bring these advanced telecommunications and information technologies to Antrim."
Attorney Wilkins summarized the two meetings (March 14, and April 14, 2009) and that he really wanted to work ‘hands on’ with the Town as a cooperative project and that AT&T could move forward with the application.
Chair Kendall was concerned with the steepness of the proposed tower’s site and wanted to know if there was a cell tower in a similar location that could be viewed.
Attorney Wilkins referred the question to Mr. Kozyra (site acquisition specialist for AT&T).
Mr. Kozyra (who told the assembly that he builds 100s of cell sites each year) made reference to drawing CO4 to see the topography, and said that there was a 10% slope, and was definitely not the steepest slope that he had worked with.
Chair Kendall said that he was most concerned with the finished grade and would like to see documentation of an actual site.
Mr. Kozyra stated that the designs had been created by a licensed Professional Engineer, whose stamp o the plans guarantee it as a viable plan. Chair Kendall would like the site to be clearly staked – for the site walk
Mr. Kozyra said that it could be staked but it would be difficult to simulate the grade.
Chair Kendall continued the Public Hearing by opening the floor to the audience. He explained that the rules would be the same as the previous meeting - each abutter could speak for five minutes and could not speak again until anyone who wished to speak had had an opportunity to express their opinion. Chair Kendall asked if there were any abutters in opposition to the proposed cell tower who would like to speak:
Peter Burwen - 11 Maple Avenue – Mr. Burwen had previously submitted an addendum to his opposition that the Antrim Zoning Board of Adjustment had reviewed. He had handouts for anyone else who might not have seen the addendum. Mr. Burwen referred to the Antrim Zoning Ordinance
Article XIX-B(2),(3) and read, "The Zoning Board of Adjustment may authorize, upon appeal in specific cases, such variance from the terms of the Zoning Ordinance as will not be contrary to the public interest". And specifically - "a. No diminution in value of surrounding properties would be suffered." Mr. Burwen explained that he felt the proposed PWSF would have a negative impact on his land and the surrounding properties. . He stated that when a buyer is looking for shelter, the impact of a cell tower is minimal. When the buyer is making a lifestyle buying decision, view is much more important - therefore, a tower would have a negative impact. Mr. Burwen explained that his lifestyle decision is being negatively impacted by the proposed PWSF. He welcomed a site walk on his parcel and suggested that participants might
want to wear mud boots because of the wetlands situation. He said that the slope of the parcel is a major concern and that the drainage was never done properly.
Leslie Bernardi -(representing her mother, Beverly Bernardi 30 High Street) Ms. Bernardi read the introduction to Antrim’s Master Plan, and then from the Master Plan’s Section 3, Page 8 in which the “rural character” and the “importance of view sheds”. Ms. Bernardi does not wish to see the ridge line of Antrim destroyed by cell tower structure.
Constance Vandervort 9 Maple Avenue, Mrs. Vandervort had two handouts for oppositional documentation. Both handouts described the possibilities of lightening strikes and the danger from such strikes.
Maureen Watts – 11 Maple Ave. Mrs. Watts spoke of the Addendum to Opposition (§19 b.2 of Antrim Zoning Ordinance) and that granting the special exception would not be a benefit to the Town.
She asked the Board to look carefully at a photo simulation of her property. Mrs. Burwen felt that the simulation angle had been taken is such a way that it was not a true representation of her property.
Tony Koban 24 High Street – Mr. Koban read from a prepared handout that he was not in favor of the proposed Cell Tower and asked the Board to carefully consider his objection.
(The Public Responses read into the minutes are available in their entirety at Town Hall – Mon – Thurs, 8 -4, or on the www.antrimnh.org website)
Chair Kendall asked if any other abutters would like to speak. As all opposing abutters had spoken once, Chair Kendall allowed opposing abutters to speak again:
Constance Vandervort 9 Maple Avenue – Mrs. Vandervort wished to reiterate that the constantly reoccurring damage by lightening would be protected on the tower by equipment designed to protect the tower, but that the property around the tower will not be protected.
Peter Burwen – 11 Maple Avenue Mr. Burwen requested for the Antrim Zoning Board of Adjustment record that he is asking for an independent appraisal of his property – paid for by either the Town of Antrim or AT&T. He wanted to prove the validity of unique properties in Antrim. He feels that his home is not just a shelter home but a lifestyle and that the diminution of his unique property should be noted. Mr. Burwen felt that the angle and edition process of the photo simulations can sway the look.
Chair Kendall if any other abutters in opposition to the Tower would like to speak. There were none.
Chair Kendall asked if anyone else in opposition would like to speak..
David Kirkpatrick – 8 Pleasant St Mr. Kirkpatrick quoted from the Telecommunications Act of 1996. He felt that the Zoning Board was able to make decisions despite the Act. The gap in coverage could be addressed in different ways, and that any company should not push the Board. Mr. Kirkpatrick felt that the criterion “in the Spirit of the Ordinance” was compromised. He stated that the visual impact of the Cell Tower should not be misunderstood. The noise level involved would affect the quality of life. He said that all the neighbors are against it (the cell tower). There are other options that are commercially and economically feasible, and he believes that the proposed site is not the only site, and does not constitute a ‘hardship’. He summarized by saying that it is the duty of the Board to keep
it just the way it is.
Peter Burwen – 11 Maple Avenue – Mr. Burwen had one additional item. He wanted to speak in favor of the independent evaluation of the Radio Frequency Engineer. There is a lot of town property available. The cell tower would be a major facility and it will impact every citizen in the Town of Antrim. Mr. Burwen pointed out that other abutters could not be present because they had to work second shift, and that in this difficult economic times, the deficit of the town, it should be noted that there is Town property available and it would be better to be on Town property.
Leslie Bernardi -30 High Street – Ms. Bernardi felt that the proximity of the power lines made the proposed site preferable for AT&T, and that ‘is not good enough a reason’.
Chair Kendall asked if any abutters in favor of the proposed Cell Tower would like to speak. There were none.
Chair Kendall asked Attorney Wilkins if he would like to rebut anything that has been said.
Attorney Wilkins agreed with Mr. Burwen. An independent Radio Frequency Engineer to independently evaluate the AT&T application as a peer review was a very good thing. He also was in full agreement to set a date for a site walk and that he felt the balloon should be flown (weather permitting) on that date. He stated that if the results of the ballon test were not satisfactory, AT&T would be will to conduct additional tests at a later date. Attorney Wilkins continued by stating that the abutters’ comments were based on generalities that could describe and be said of any Cell Tower, and if the abutter’s comments were part of the decision process, there would never be a Cell Tower anywhere and that is why the Telecommunications Act of 1996 was enacted. That said, Attorney Wilkins would like to focus on Antrim’s
proposal.
Mr. Young moved to engage the services of a radio frequency engineer to conduct an independent survey to determine the most suitable site locations for Personal Wire Service Facilities in the Town of Antrim. The cost of the survey to be conducted by Mark F. Hutchins is estimated to be $9100.00, which is to be borne by the applicant by placing the funds in an escrow account with the Town of Antrim. It was seconded by Mr. Young Chair Kendall asked Attorney Wilkins if that would be acceptable to the applicant. Attorney Wilkins agreed. The Board voted unanimously to pass the motion.
Mr. Vasques will send the escrow agreement to the applicant.
Mr. Haggett moved to conduct a site walk on May 5, 2009 on the property of John & Wendy Dunlap and abutting properties pertaining to the application of New Cingular Wireless, PCC (AT&T) regarding the request to install a Personal Wireless Service Facility on said property. It was seconded by Mr. Young. The motion was approved.
Mr. Burwen wants the site walk to start on his property and schedule the time for more daylight. He thought it should be ‘bumped up to 5:00 or 5:30. Mr. Burwen encouraged attendees to wear mud boots because they would be seeing wetlands, a creek, and seepage all down the slope; and he was in favor of the balloon test.
Chair Kendall said that in fairness to working people the time would remain at 6:00 pm. He felt that it was very important that abutters be present and that each parcel be viewed. If further time was necessary, that would be addressed.
Mr. Dunlap was agreeable to the site walk.
The Board will meet at Town Hall and then on to the entrance to the Dunlap property. Abutters will be welcome. Chair Kendall asked Mr. Dunlap if he realized that the meeting would be considered a Public Meeting. Mr. Dunlap understands.
After the Site Walk Public Meeting, the Public Meeting will be continued to May 19, 2009 at 7:15 in Town Hall.
Business Meeting:
Approval of the April 7, 2009 minutes – Mr. Giffin moved to approve the minutes as presented. The motion was seconded by Mr. Crafts and unanimously approved.
Reorganization of the Board – Mr. Pagano has agreed to be an alternate. Chair Kendall and Vice-Chair Young agreed to continue with their status. Mr. Haggett would become a member. The revised slate will be presented to the Selectmen with a request that these appointments be made..
Correspondence:SWRPC: Forum. Green Business, The Next Generation, An Earth Day Public Forum April 21, 2009
At 9:30. Mr. Haggett made a motion to adjourn. It was seconded by Mr. Crafts, and approved by all.
Respectfully submitted,
Diane M. Chauncey, Planning Assistant,
On Behalf of the Antrim Zoning Board of Adjustment
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