ZONING BOARD OF ADJUSTMENT
January 04, 2007
The meeting was called to order at 7:00 p.m.
Roll Call: Larry Ordway, Chairman; Peter Bealo, Vice Chairman; Robert Loeffler; Julie Matthews; and Clifford Clark.
Minutes
R. Loeffler moved, second by L. Ordway, to approve the minutes of the December 07, 2006, meeting. The vote was 5-0-0 U/A.
R. Loeffler moved, second by P. Bealo, to approve the minutes of the December 30, 2006, site walk. The vote was 4-0-1 (Clark abstaining).
CONTINUED FROM DECEMBER 07, 2006
#06-54: A request from Industrial Tower and Wireless, LLC (ITW) for a Variance from Article XVII, §220-121(B) to permit a wireless telecommunications facility in a LDR district. The property is located at 323 Main Street (rear), Tax Map 21, Lot 4 in the LDR District. The owner of record is Nancy McCormack
Present for the application were: Attorney Mark Beliveau, Pierce Atwood Attorneys at Law; Donald C. Cody, Director of Operations; James S. George, Site Acquisition Specialist; and Bob Hassett, Communications Consultant, all from Industrial Communication, also know as Industrial Tower and Wireless.
L. Ordway reminded that the last public hearing had been continued at the request of the applicant in order to allow them time to provide answers to questions that had come up as well as give them the opportunity to conduct a balloon test to be witnessed by the Board and any interested parties. L. Ordway reported that the balloon test was conducted and members observed the balloon from different locations on Route 121A as well as Ashley Nicole Drive and other side streets off Route 121A.
P. Bealo disclosed that in the interest of minimizing the number of vehicles on the road he offered to transport people with him. He noted the only taker was an abutter to the subject property, which could be construed as someone having undue interest on him. He offered to recuse himself from the Board for the hearing if the applicant or the Board asked him to.
D. Cody asked P. Bealo if he felt the abutter had had an undue influence over him.
P. Bealo replied no.
D. Cody stated that they had no problem with P. Bealo hearing the case.
Information regarding diminution to property values was presented by the applicant. A number of reports from real estate appraiser Andrew Lemay were noted that offered there was no adverse affect to property values when there is a cell tower. It was noted that the report compared sales of homes where a cell tower could be seen were to sales of similar homes where there was no cell tower. It was noted that in 26 towns the assessing offices were asked to respond to a request for information regarding properties were a cell tower could be seen. It was offered that the information proved there was no diminution to those property values compared to others in the same community. The applicant noted that they had brought a number of other reports to the hearing if the Board wanted more evidence.
J. George added that he had spoken to brokers and asked how long properties remained for sale when there is a cell tower in sight as compared to those where there is not one and if there were calls from prospective buyers expressing concerns regarding the location of a cell tower. He said the brokers said there were no issues of concern expressed and the houses did not stay on the market any longer and the prices were not reduced.
D. Cody offered that research of public records and after contacting assessing offices, real estate brokers and property owners there was no evidence that the presence of a cell towers affected a property’s value as stated in the Lemay report.
J. Matthews questioned how far back the research of comparable values was done.
D. Cody said that he did not know specifically but the report noted the values over the life of the towers studied, comparing values of properties where the tower was visible to those where it was not as well as comparisons to home sales in different neighborhoods.
A memo from Jason Hoch, Plaistow Town Manager, was read for the record. The memo offered that while telecommunications advances were important there was no money allocated in the upcoming budget to provide for the additional hardware that would be needed.
L. Ordway suggested that since ITW was alleging there were problems with reception in the area they were seeking to locate a tower there should be complaints and asked if there was documentation of any.
J. George presented twenty-six (26) letters from commuters, residents and business people who have experienced issues with cell phone reception in the subject area.
D. Cody noted that they were also pursuing a cell tower in Atkinson to promote interoperability between that town and Plaistow that would increase public safety. He also noted that they were working on some “creative solutions” for hardware issues.
There was technical discussion of what affect adding a police/fire antenna to the tower would have. It was noted that they would use the top location on the tower and it was questioned if a taller tower would then be warranted or if it would lower the commercial antennas. It was also questioned whether or not increasing the power on other surrounding would then cover the subject area.
L. Ordway noted that some of the addresses on the letters submitted by people noting issues were in Salem. He questioned how the letters were solicited.
J. George offered that they were from a blanket email he sent to his contacts asking if anyone had experienced any problems with communications in the area and whether or not they would be comfortable supporting a tower in that area.
There was a discussion of the solicitation process. It was noted that approximately 50 requests had been sent out and responses were still coming in at 3:00 p.m. this day.
R. Loeffler asked if there were any responses from people stating that they do not have problems.
J. George stated that if someone didn’t respond he didn’t want to assume what their opinion was.
R. Loeffler noted that the majority of the letter writers who expressed a concern appeared to be Verizon users, which suggested to him it was more of a carrier problem than a tower location issue. He added he wondered if the residents who expressed problems had the house first or the cell phones first. R. Loeffler offered that the submitted report notwithstanding, these were high end houses bought with a particular view included and the reports did not cover this specific location. He added that a balloon floating on a rope would not have the same appearance and a tower structure.
D. Cody offered that the record showed what they could. He noted that there was no way to show an exact comparison, only similar scenarios, as the tower was not erected.
R. Loeffler noted that people traveling on Route 121A would not be seeing the tower but the residents living there would.
There was continued discussion regarding whether or not property values would be affected by this tower. Questions were asked as to whether or not the affected homeowners were paying a “view tax” and whether or not rebates would be sought with the addition of a tower. There was a discussion of the view shed that the abutters now had as compared to what they would see with the tower.
P. Bealo offered that the information submitted by the applicant showed the Kimball Tree Service location as a viable alternative providing coverage to the area with the exception of the Kelley Brook Area, which he noted to be un-buildable.
D. Cody reminded the Board that under the Federal Telecommunications Act (FCA) they Board could not deny their petition and suggest that they try to locate in another town. He added that there were water issues with the site; it was lower in elevation than the subject property and there was a business operating there which made 24/7 access a problem
P. Bealo replied that part of the Kimball site was located in the Town of Plaistow.
J. George noted that he has considered the Kimball site and it did not provide the same coverage area as the subject property, there were water issues and the site was not available.
L. Ordway suggested some ground rules for the public discussion. He requested that those speaking from the gallery state their name and property address for the record. He also asked that they remind the Board if the had spoke at the public hearing. L. Ordway offered that not only was he weighing the testimony of those who spoke but he would like to maintain a numeric count of those who spoke in favor and in opposition and didn’t want to count anyone twice for that purpose. He requested that if information was already part of the record those comments that would be repetitive be kept brief.
L. Ordway asked if there was anyone speaking in favor of the application.
Charles Fowler, 311 Main Street, offered that he saw the balloon when it was floated and didn’t have a problem with the proposal. He noted that how much of the tower he would see would depend on the season and the foliage. Mr. Fowler added that he was a Nextel customer and that he had to go to the end of his driveway in order to use his phone at home. He noted that he used to have Verizon service and it was worse. Mr. Fowler indicated that he did have a conventional land line for phone service as well.
Stewart McCormack, 325 Main Street, noted that he was an owner of one of the tree properties involved in this project. He reminded the Board that there were letters of support submitted by the applicant showing that there are abutters in support of the proposal. Mr. McCormack suggested that the Town Fathers could not have foreseen the rise of cell phone communications when they developed the zoning ordinances. He added that the Town needed to grow with the times.
R. Loeffler noted that they were not saying no to cell towers in town, it was the location of this tower that was the issue. The property is not zoned for it.
P. Bealo added that if the property were zoned commercial or industrial the application would not even be before the Board for a use variance.
Vern Gardner, Real Estate Appraiser, offered his resume to the Board and explained that he has offered expert testimony, usually in support of a cell tower location, at many levels, including local land use boards and all levels of the court system. He noted that he was hired by James Wentworth (3 Ashley Nicole Drive) to see and evaluate the impact that a cell tower would have on the residents of Ashley Nicole Drive. He noted that the particular parcel that he looked at was the Wilkins Parcel at 4 Ashley Nicole Drive. Mr. Gardner offered that in many instances he agreed that there was little or no impact to property values when a new cell tower was erect. He reported that in this instance it was his opinion that there would be significant diminution to the values of the properties on Ashley Nicole. Mr. Gardner
offered that the view from these properties was part of their value and a cell tower would detract from that. Mr. Gardner requested a sixty (60) day continuance of the public hearing so that he could further evaluate the situation and offer hard numbers that would support his opinion.
L. Ordway noted that only the applicant could request a continuance.
P. Bealo added they frequently granted continuances and applicant will make that request if they feel that not having sufficient information could affect the Board’s deliberation.
D. Cody suggested there was no evidence before the Board of a specific decrease in property values and there for he saw no reason to request a continuance.
L. Ordway asked Mr. Gardner to numerically estimate what he felt the loss of value would be.
V. Gardner estimated, qualifying that it was an estimate, that there would be a 15% loss in property values to the residents of Ashley Nicole Drive if the cell tower was located where proposed.
L. Ordway asked the applicants if there was any precedent where there are unique circumstances where financial compensation was offered to those who were affected by a new cell tower.
D. Cody replied there was none.
Scott Wilkins, 4 Ashley Nicole Drive, offered the Board scaled drawings of what he would see from his home. He suggested that putting this tower up to cover approximately a half mile of Route 121A seemed overkill. He noted that the Town should have the right to refuse the tower when it means that some of its residents will suffer a loss in property value. Mr. Wilkins suggested that someone in the process of buying property in this area might not have seen the balloon test and wouldn’t have been notified and they might have an opinion. Mr. Wilkins added that he had requested specific information from ITW and was informed by them that they were under no obligation to provide him with the requested information.
Sue Lawless, 329 Main Street, offered that she too had concern for the value of her property with the location of the tower, noting that she was the closest abutter to the actual structure. Ms. Lawless offered a written version of her concerns to the Board and noted excerpts from Federal Law and court cases she felt were applicable. She asked the Board to give consideration to the fact that this is a mostly residentially used neighborhood and that even if her value was not affected there was an impact to the quality of her life and the seclusion the she purchased the property for. Ms. Lawless agreed that the scope of the project was not in line with the increased coverage that will be provided and that the information the applicant provided indicated to her, as it did to others, that it may be more of a carrier issue than a
coverage issue. Ms. Lawless asked that some of the commercially used sites in the area again be considered for the location of this tower and that time be given for the appraiser to talk to other abutters.
Robert Maker, 331A Main Street, questioned the accuracy of the balloon test. He noted that it was a windy day and that when he walked out to the location he noted that rope was hung up on a tree so he wasn’t sure that the balloon reached the true height and remained there for any length of time. Mr. Maker noted that his major concern was the change in the aesthetics. He noted that his wife was a real estate appraiser and she was of similar opinion as Mr. Gardner with reference to the property values.
Deborah McCusker, 331A Main Street, offered that they had purchased their property for the view. She suggested that while there may not be a decrease in a property value once a cell tower is located in a particular location, the market for those who would consider purchasing a property where a cell tower is located, in her opinion, would be decreased, suggesting that some would rule out the property for consideration.
James Wentworth, 3 Ashley Nicole Drive, read a letter (copies were submitted to the Board) noting that there would be diminution of the values of the high-end properties located on Ashley Nicole Drive and that should be reason enough to deny the application. He noted that many of the land owners on that street gave up easily-maintained flat properties to gain the view that they have. Mr. Wentworth reported that he too had requested information from the applicant and was denied, which he suggested indicated “bad faith” on the part of the applicant. He suggested that there would not be problems with the Federal Communications Commission (FCC) if the application was denied. Mr. Wentworth offered that he felt there were issues with the balloon test. He said that he wasn’t sure what he was supposed
to be looking for and he also questioned if it should have been higher. Mr. Wentworth explained that the houses on Ashley Nicole Drive were designed for the views that could be seen from every window. He suggested that the coverage issues were more an Atkinson issue than a Plaistow issue. The letter from Mr. Wentworth stated reason why he felt the application did not meet the 5 prong test required for the granting of a variance as well as some technical reason why he felt coverage would not be improved by this tower.
A letter from Rick Paul, 331B Main Street, noting his opposition to the application once seeing the balloon test, was read for the record. Mr. Paul stated that he felt that his property value would be affected and that the application did not meet the test for the granting of a variance.
L. Ordway asked if there were problems with the balloon test.
J. George noted that he was the “babysitter” for the balloon that day. He noted that it was raised and 9:30 a.m. at which point in time he notified staff (confirmed for the record) that it was in the air. He explained that it was a three (3) foot round balloon and the height to raise it to was indicated on the rope. Once it reached the proper height it was tied off. He noted that while he didn’t stay with the balloon every minute he did check it frequently and it was floating at its appropriate height each time he checked. Mr. George suggested that if at anytime the rope caught itself on a tree it had freed itself by the next check.
D. Cody suggested that zoning doesn’t always take into consideration where a cell tower is needed, where the property to put one is available and where a new cell tower will work best. He added that he would happily put this tower in a commercial/industrial location if there was one available and would work, but there was not one. Mr. Cody added that this was not an inexpensive acquisition as they would be purchasing three (3) properties and two (2) homes to make this work. He suggested that the hardship was that the coverage could not be achieved by placing a tower in a commercial/industrial location.
M. Beliveau responded to Mr. Wentworth’s claims of bad faith, offering date stamped copies of correspondences between himself and Mr. Wentworth’s attorney. He offered the responses were made in a timely manner.
M. Beliveau offered the following evidence to meeting the criteria for the granting of a variance:
- He noted that his client had submitted concrete, written, expert evidence that in other circumstances there was no diminishment to property values while the concerns expressed by the abutters’ expert were verbal and personal opinion. He added, that when pressed by the Board, Mr. Gardner offered a15% devaluation on the Wilkins property, which by his own admission was not based on full evaluation. Mr. Beliveau noted there was no way to provide concrete information specific to this location since there was no cell tower at this location. He noted that best efforts are always made to disguise the tower as much as possible and make it blend as best as it can. Mr. Beliveau suggested that this was the best location to meet the objective of facilitating competition and addressing coverage
issues. He cited the US Cellular v. City of Franklin (Franklin) case where real estate values were shown to not be diminished so as to prevent a tower from being erected in that town. He suggested that the evidence, regarding property values, submitted by the abutters was not outweighed by the evidence submitted by the applicant.
- Mr. Beliveau reminded that under the Simplex decision applicant no longer needed to prove that there was no reasonable use of the property, only that the use they proposed would be reasonable in the unique setting. He suggested this property was unique because:
- The location of the tower would be 1,000 feet from the road
- It was triangular in shape, densely wooded and buffered
- It was a land-locked parcel, purchased from the Town in 1994, who obtained it by way of a 1939 tax lien.
M. Beliveau cited the 2003 Rancourt case the permitted a horse stable where it was not allowed, deciding that a horse stable was a reasonable use noting the unique shape of the property.
- There is nothing contrary to the public interest. Mr. Beliveau cited the recent (2005) Chester Rod and Gun Club offering that so long as there is no threat to the health, safety and welfare of the community there is nothing that is contrary to the public interest. He added that there is significant benefit to the public interest in improved cellular communication as well as potential improvements to public safety communications.
M. Beliveau quoted from Peter Loughlin’s writings on land use regulations. He reminded the Board that should there be a denial the decision shall be in writing and supported by the record. He offered that the denial of the variance would be prohibitive to competition and leave an important gap in coverage, making it contrary to the FCA.
REBUTTAL:
V. Gardner offered that as an appraiser he was frequently called to courts to testify. He noted it was not foreign to him to be offered to express and opinion on the spot. Mr. Gardner suggested that the Board consider that Mr. Lemay (author of the applicants real estate value report) did not have the opportunity to visit the affected site, which he did, and he was comfortable stating that there would be an adverse impact to property, particularly to the one located at 4 Ashley Nicole Drive.
P. Bealo specifically asked Mr. Gardner to confirm that he is recognized as an expert for purposes of court testimony in the area of real estate appraisal. He also asked if Mr. Gardner was present at the location while the balloon test was being conducted.
V. Gardner confirmed that he was considered as an expert at all court levels and had testified on behalf on many telecommunications applicants. He also confirmed that he was at 4 Ashley Nicole Drive and other properties during the balloon test.
J. Wentworth disputed that the Franklin case was applicable in this situation offering that the view of the abutters in this proposal would be obstructed by a super tower being erected for a half mile of additional service coverage that could be resolved in other ways. He reiterated that he didn’t think that the FCC would be in to micromanage one tower. Mr. Wentworth suggested that the Kidder site was a commercial site that already had a tower on it and adding another one shouldn’t be an issue.
It was noted for the record that the Kidder site was not commercially zoned but was a grandfathered commercial use.
J. Wentworth continued that ITW looked at mostly residential locations and suggested that it was a cost issue that prevented them from looking at commercial locations.
M. Beliveau replied that the Franklin case was directly relevant as it related to the property values. He added that it would be impossible to definitely show any before and after property value impacts at this specific location since there was no tower there.
J. Wentworth reminded that V. Gardner was present for the balloon test and reminded that he requested sixty (60) days to do a full evaluation. He added that Mr. Gardner is usually on the side of the tower companies, but that most towers are behind people not in their front yards.
J. George noted that the Kidder site was down too far to effectively cover the area. He added that there were wetlands issues with the site and that they would not build a tower where there were wetlands or floodplain concerns. Mr. George added that the Risen site was in the same situation.
There was a visual on the applicant’s projection screen.
C. Clark asked what it was a picture of.
J. George replied that it was a picture of a cell tower at 89 Newick Street, Haverhill, owned by J. Wentworth.
L. Ordway noted that other cell towers in other towns, no matter who they were owned by were not relevant to this tower in Plaistow.
L. Ordway asked the applicant what one thought they would like to clearly leave in the mind of the Board as the entered into deliberations.
D. Cody offered that they had clearly proven there was a need for this tower in this location and that the Town’s zoning did not allow another solution for them to close this gap.
S. Wilton replied that there were a bunch of reasons stated why this should go through. He asked the Board to look at the pictures that were submitted and use common sense as he felt that they clearly offered proof that there would be a diminution of his property values and he believe it would be upheld in a court.
L. Ordway closed the public hearing.
The chairman called for a break at 8:31 p.m. The meeting was called back to order at 8:41 p.m.
DELIBERATIONS:
#06-54: A request from Industrial Tower and Wireless, LLC (ITW) for a Variance from Article XVII, §220-121(B) to permit a wireless telecommunications facility in a LDR district. The property is located at 323 Main Street (rear), Tax Map 21, Lot 4 in the LDR District. The owner of record is Nancy McCormack
P. Bealo moved, second by C. Clark, to grant the request for a variance to permit a cell tower to be erected in the LDR district.
L. Ordway recapped noting this application to be to allow a 190’ monopole tower to be erected in the residential district. He reminded that there had been a site walk done to view a balloon test to get some idea of what the residents would see once the tower was erected, noting that members drove up and down Route 121A from 125 to the Hampstead line and onto some of the side streets.
P. Bealo suggested that the Board review the criteria for the granting of a variance and see where there was and was not agreement.
The review was as follows:
- There shall be no diminution of surrounding property values
L. Ordway recalled that there was testimony and evidence present from the applicant that reported there was generally no indication that the presence of a cell tower diminished any property values.
P. Bealo offered that he heard that any decreases were “immeasurable.”
L. Ordway noted that there was nothing in the studies submitted by the applicant that specifically related to properties located on Ashley Nicole Drive. He added that there was testimony, although not exhaustive, from an expert who got the view from the front yard of those who will have the major visibility of the tower. L. Ordway also noted that there would be at least two, perhaps a third abutter who would have a direct view of the tower.
R. Loeffler noted that those properties did not have much of a back yard to them so their uses were in the front yard where there would be a direct view of the tower. He added that the point made about the market shrinking for properties where a tower was in view was a valid one. Those who wouldn’t look at a property for that reason may not report it as such.
P. Bealo offered that the applicant also made a valid point citing the Franklin case noting that the Board could not rely on general unsupported evidence presented by the residents. He added that the evidence submitted by the applicant, while generalized, was supported. P. Bealo noted that Mr. Gardner did have the advantage of being at the site before he stated his opinion.
J. Matthews noted that despite the Lemay report she didn’t see any sales or listing data that supported the claim that there was no diminishment in property values. She said that she would have like to have seen data that showed median sales prices, lists of comparable sales, data that showed how long a property where the was a cell tower remained on the market versus other homes where there was no tower.
L. Ordway asked J. Matthews if she felt the applicant had proven the point that there was no decrease in value.
J. Matthews responded that they had not.
- Granting the application is in the public interest
L. Ordway offered that increased cell phone and public safety communications was always in the public interest. He noted that some carriers had adequate service in the subject area while others did not and questioned whether or not that was due to carrier equipment more than coverage issues and suggested. L. Ordway added that benefits to transient travelers through the area did not outweigh the loss to Ashley Nicole residents in his mind.
R. Loeffler agreed, noting the there was no evidence as to how many of the 100 or so residents who would gain increased service had cell phones, what there service was like and whether they had the house or the cell phone first.
J. Matthews noted that if she knows that she is going into an area where she is going to lose a call she doesn’t conduct business over the phone in that area.
R. Loeffler added that most people manage their lives in the same way.
C. Clark reminded that the memo from the Town Manager didn’t express the need for a new tower at this time, since there was no funding in the upcoming budget for new equipment. He questioned if there would be a public safety gain to the town if we were able to obtain the equipment.
L. Ordway noted that the emergency needs of 100 people would be better served.
C. Clark expressed that was where he was a little cloudy. He questioned if this would improve just personal cell phones or if the tower would increase other types of communications.
P. Bealo explained how it would improve walkie talkie services a well.
C. Clark noted that his major concern would be that everyone would be able to reach the fire or police department in the event of an emergency.
- Hardship
L. Ordway noted that the hardship was required to be to the property owner. He reminded that the property owners were not yet ITW but the McCormacks and the hardship to them might be that they cannot sell the property to ITW if the variance is not granted.
R. Loeffler suggested what made other sites inaccessible was only site work, blasting and such, which adds to the costs of the project. He added that there were issues with properties that were land locked as well.
J. Matthews offered that there were properties at the top of old county road but there were access issues there as well.
L. Ordway said that he had asked them to come in with an alternate plan and they came back and offered that there were none.
R. Loeffler added that he couldn’t believe that this was an all or nothing for this parcel only.
P. Bealo reiterated that the applicant’s own study showed that the Kimball Tree Service located did provide coverage to the Route 121A area that was the target. He added the only area where service was not increased was in the area of Kelley Brook, where there were no houses.
It was noted for the record that the applicants had stated that the Kimball Tree Service property was unavailable to them.
L. Ordway suggested that it wasn’t making a lot of sense to spend the kind of money involved to improve the service to 100 Plaistow families.
C. Clark offered that the target location does fill in the gap.
P. Bealo added that so did the Kimball site.
L. Ordway stated that he wasn’t convinced that there was a coverage gap, since there were carriers that were able to provide coverage to the area without this tower. He expressed that other carriers should be able to do the same. L. Ordway suggested that the forces of the market place might solve the problem as well.
There was a discussion of the needs of the business community for two-way (i.e. Nextel) communications and what the additional tower would bring to that.
R. Loeffler reiterated that a 190 foot tower to solve the problems of 100 people seemed like overkill and there should be other technologies available to resolve the problem.
- Substantial Justice
L. Ordway suggested that the potential gain to 100 residents and a half mile of Route 121A for increased cell coverage wasn’t outweighed but the loss to the property values to the residents of Ashley Nicole Drive.
P. Bealo offered that some consideration needed to be given to residents and others using Route 121A.
C. Clark added it was a pain to suffer through a dropped call.
J. Matthews noted that if the business is that important it should be conducted over a land line.
C. Clark offered that different types of businesses operate differently and sometimes a land line isn’t practical.
J. Matthews suggested that the matter of substantial justice was a 50/50 thing for her; cell phone users versus residence of Ashley Nicole Drive, whom she felt would suffer a financial loss.
L. Ordway added that someone who might not be able to call in the event of a medical emergency would definitely outweigh the of property value loss.
C. Clark reiterated that all of his concerns were regarding the potential to the increased safety of the community.
- Spirit and intent of the ordinance
L. Ordway noted that the LDR (Low Density Residential) district was developed partly in the interest of the preservation of open space and wildlife and this application would be contrary to that.
There was no further discussion on the motion. The vote was 0-5-0 and the motion to grant the variance was defeated.
When asked for the record what the reason of denial was it was consensus of the Board that none of the tests for the granting of a variance had been sufficiently met but that the major concerns were over the diminishment of the abutting property values and the application being contrary to the spirit and intent of the ordinance.
There was no further business before the Board and the chairman adjourned the meeting at 10:19 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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