ANTRIM ZONING BOARD OF ADJUSTMENT
July 14, 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:
Michael Pon (The Villager) Peter Burwen (Abutter) Connie Vandervort (Abutter)
Ben Pratt (Resident) Margie Warner (Resident) Tony Koban (Abutter)
John Dunlap (Owner) Maureen Watts (Abutter)
Douglas Wilkins (Attorney, AT&T) )
Kathi Wasserloos (Resident & Planning Board Member)
Shannon McManus (KJK Wireless - Site Acquisition)
7:00 pm Review Session:
The Board reviewed the minutes of July 7, 2009.
7:16 pm Public Meeting:
Chair Kendall opened the Public Meeting at 7:16 pm and introduced the Board members. All five members were present as well as one alternate. Chair Kendall explained the meeting procedure - that the Meeting is a continuation of the Deliberation of the Special Exception (the Deliberation began July 7, 2009) and two Area Variances. Chair Kendall noted that there would be no further testimony accepted and no input from the Public Attendees. Mr. Moore read the Public Notice (attachment). The Public Meeting participants were reminded that the Special Exception must be granted in order to go forward with the two AreaVariances.
Deliberation
Special Exception
Special Exception to construct and operate a ground mounted Personal Wireless Service Facility at 22 High Street, Antrim, NH (Map 244 Lot 6) on property owned by John & Wendy Dunlap in the Residential District.
A Special Exception may be approved by the Board if the following criteria has been satisfied. Chair Kendall wanted to deliberate the criteria in reverse order.
(5.) Adequate and appropriate facilities will be provided for the proper operation of the proposed use.
All members agreed.
(4.) Substantial justice would be done.
All members agreed.
(3.) The use will not create excessive traffic congestion, noise, or odors in the neighborhood where it is proposed.
Chair Kendall stated that traffic and odor are not factors.
Mr. Giffin said that based on the evidence submitted to the Board there is no substantial evidence that noise would be a factor for consideration. The Town of Antrim does not have a 'Noise Ordinance' within the Zoning Ordinance. Although 49 dbls may be too loud, there is no
evidence on which to base that conclusion.
Mr. Haggett agreed with the criterion.
Mr. Scales agreed with the criterion.
(2.) Such approval would not adversely affect the neighborhood, nor otherwise be injurious, obnoxious or offensive.
Chair Kendall had difficulty with this criterion because of its subjectiveness. He struggled
with how to determine whether or not it would adversely affect the neighborhood.
Mr. Haggett stated that based on the evidence presented, there is no basis for obnoxious or
offensive effects to the neighborhood.
Chair Kendall said that he thought that the two appraisals contradicted.
Mr. Crafts disagreed. Although, he was surprised that the two appraisers' reports stated no effect on the valuations of the homes, he would need to go along with their analyses. He went on to say that there had been evidence presented by the abutters but no compelling evidence, and that the Board could not create evidence that was not there.
Mr. Scales said that there was no negative evidence, and that the Board should focus on the application as presented.
Mr. Giffin stated that the aesthetics (building structures, fencing, wood line view, etc.) would be in the hands of the Planning Board.
Mr. Haggett stated that the PWSF is a permitted use by Special Exception, and as far as he is
concerned, he is comfortable that there will be no adverse affect.
Chair Kendall continued to say that the criterion was very subjective and that he held faith in
the Planning Board that they can control the adverse affects in the neighborhood.
(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
Chair Kendall said that there was not another cell tower in use, and that he was conflicted by
this criterion. The frustrating part for him was the lack of factual evidence and even though he felt that this criterion was subjective, there was not enough evidence to stand behind his concerns.
Mr. Scales said that the applicant had proposed an appropriate location.
Mr. Haggett said that applicant had met the burden of proof.
Mr. Giffin also felt conflicted with this criterion and wished that there had been more evidence.
He felt that the Radio Frequency Engineer's report was conflicting. He understood that the applicant's need to fill the gap in coverage but that he felt that there was an alternative site, but the Board must look at the information presented.
Mr. Haggett quoted from Page 8 of the Independent Radio Frequency Engineer's report.
Last sentence page 8, 5.f. - "Although water tank coverage is fairly good, the location 3.450 feet west/northwest of the proposed location moves the coverage that much more to the west of the Route 202 gap, and it is clear that the proposed-site hill then provides considerable blocking of area to its east"; and 5.h. - "If you consider simple geometry, moving roughly 500 feet back along the hill makes the hill itself likelier to encroach on the signal path, and this is clearly happening".
Mr. Crafts said the Radio Frequency Engineer's report stated that the 22 High Street would close the coverage gap and that is what the applicant was proposing. A decision must be
made with the evidence in front of the Board.
Mr. Kendall and Mr. Giffin remained conflicted.
Vote for Special Exception:
Mr. Haggett made a motion to grant the request of New Cingular Wireless, PCS, LLC (AT&T) for a Special Exception from Article XIV-B. 4. a. & XIV-B. 2. to construct and operate a Personal Wireless Service Facility at 22 High Street on property owned by John & Wendy Dunlap (Map 244 Lot 6) in the residential District with the following conditions will apply:
1. Board of Adjustment requirements, commitments and agreements made by the applicant and or his agent as recorded in the meeting minutes dated March 17, 2009 and subsequent meetings as they pertain to the application are a conditional part of this approval.
2. The PWSF will be constructed as a monopine.
3. A ground mounted PWSF will also require completion of a full site plan review and approval from the Planning Board.
Mr. Giffin seconded the motion. All were in favor of the motion.
Roll Call Vote: Mr. Giffin, nay; Chair Kendall, nay; Mr. Crafts, aye; Mr. Haggett, aye; and Mr. Scales, aye.
The Special Exception was GRANTED. A hard copy Notice of Decision, signed and endorsed by the Chair with the above mentioned three conditions, will be prepared within 144 hours.
Area Variance - Average Tree Canopy
The Board continued the Deliberation with an Area Variance request fro Article XIV-B.6.a.4. for a ground-mounted PWSF not to project higher than twenty feet (20') above the Average Tree Canopy Height. The criteria and discussion are as follows:
(1.) The value of the surrounding property will not be diminished.
Mr. Haggett said that in the two Appraisal reports there was no evidence that says a Cell Tower diminishes property values.
Mr. Crafts concurs with Mr. Haggett.
Mr. Scales said that there was no contrary evidence
Chair Kendall said that the surrounding properties would not be diminished.
(2.) The variance will not be contrary to the public interest.
Mr. Haggett said that the Special Exception has been granted allowing the PWSF as a permitted use and that PWSFs are in the public interest.
Mr. Giffin said that there was not enough substantial evidence to make the variance "contrary'.
(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.
Mr. Haggett said that the PWSF is a permitted use.
Chair Kendall said that keeping it at 100' is a reasonable use - the PWSF needs to be above the
tree canopy.
Mr. Giffin agreed with this criterion.
b. No fair and substantial relationship exists between the general purposes of the zoning ordinances and the specific restrictions on the property.
The Board members agreed.
(4.) Substantial justice would be done.
The Board members agreed that the Special Exception allows the use.
(5.) The variance is consistent with the spirit of the ordinance
The Board members agreed with this criterion.
Vote for Area Variance
Mr. Haggett moved to grant the request of New Cingular Wireless, PCS, LLC (AT&T) for an Area Variance from Article XIV-B 6. a. 4. (not to project higher than twenty feet above the Average Tree Canopy Height) at 22 High Street on property owned by John & Wendy Dunlap (Map 244 Lot6) in the Residential District.
Mr. Giffin Seconded the motion. All were in favor of the motion.
Roll Call Vote: Mr. Giffin, aye; Chair Kendall, nay; Mr. Crafts, aye; Mr. Haggett, aye; and Mr. Scales, aye.
The Area Variance was GRANTED. A hard copy Notice of Decision, signed and endorsed by the Chair with the above-mentioned three conditions, will be prepared within 144 hours.
Area Variance – Frontage
The Board continued the Deliberation of the second Area Variance - relief from Article V.1.C. b. road frontage of 200' for a commercial activity. The frontage is 74.9'. The Board reviewed each criteria and discussed the criteria.
(1.) The value of the surrounding property will not be diminished.
Mr. Haggett said that the entry point was through an existing driveway. Once the PWSF has been completed, the traffic will be limited to monthly maintenance.
Mr. Giffin said that the lot is a pre-existing back lot
(2.) The variance will not be contrary to the public interest.
The Board members felt the discussion of #1 applied to this criteria.
(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.
The Board members agreed.
b. No fair and substantial relationship exists between the general purposes of the zoning ordinances and the specific restrictions on the property.
The Board members agreed.
(4.) Substantial justice would be done.
The Board members agreed that the Special Exception allows the use.
(5.) The variance is consistent with the spirit of the ordinance
The Board members agreed
Vote for Area Variance
Mr. Haggett moved to grant the request of New Cingular Wireless, PCS, LLC (AT&T) for an Area Variance from Article VI C.5.b. (Minimum lot frontage of 200’ for non-residential use in residential district) at 22 High Street on property owned by John & Wendy Dunlap (Map 244 Lot6) in the Residential District.
Mr. Craft seconded the motion, and All were in favor of the motion.
Roll Call Vote: Mr. Giffin, aye; Chair Kendall, aye; Mr. Crafts, aye; Mr. Haggett, aye; and Mr. Scales, aye.
The Area Variance was GRANTED. A hard copy Notice of Decision, signed and endorsed by the Chair with the above-mentioned three conditions, will be prepared within 144 hours.
Chair Kendall explained that the Zoning Board of Adjustment had granted the Special Exception and the two Area Variances. Any person affected has a right to appeal this decision,. If a person wishes to appeal, the action must be taken within thirty (30) days of the date of this notice. The first step before any appeal may be taken to the courts, is to apply to the Board of Adjustment for a rehearing per RSA 677.2. The motion for a rehearing must set forth all the grounds on which the appeal will be based.
Business Meeting:
Approve July 7, 2009 minutes - Mr. Haggett moved to approve the minutes as amended. Mr. Scales seconded the motion and the minutes were approved by all.
At 8:31 pm, Mr. Haggett moved to adjourn 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
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