Minutes of the Meeting and Public Hearing

Wednesday, April 10, 2002        7:00 PM

Warner Town Hall , Lower Meeting Room

 

Members Present:              MarthaThoits, Martha Mical, Kenneth Klinedinst, John Wallace

Members Absent:                None

Alternates Present:            Joanne Hinnendael, Martha Latuch

Alternates Absent:              None

Presiding:                             Martha Thoits

Recording:                            Sissy Brown

 

Voting members for this meeting:  Martha Mical, John Wallace,  Kenneth Klinedinst, Martha Thoits, Joanne Hinnendael

 

I.                     Open Meeting at 7:05 PM

II.                   Roll Call

 

III.                 Selection of a new Chairman.  A motion was made to nominate Martha Thoits as Chairman of the Zoning Board of Adjustment.  The motion was seconded and passed with a unanimous vote.

 

IV.                Approval of the Minutes of the February 13, 2002 Zoning Board of Adjustment Meeting

A motion was made and seconded to approve the minutes of the February 13, 2002 ZBA Meeting as submitted.  The motion passed with a unanimous vote.

 

V.                  Case # 01-02:  Special Exception

ATC REALTY, INC. for INDEPENDENT WIRELESS ONE/SPRINT PCS NETWORK AFFILIATE (IWO/SPRINT), 44 Exchange Street, Suite 301 , Portland , ME 04101 , requests a Special Exception to construct a 90 ft. stealth wireless telecommunications tower on property located on North Road in the Town of Warner , Lot 11-2, Map 18, R3 Zoning.  Property owner: Carol Pletcher

Karen L.A. Metcalfe, Property/Zoning Specialist

John Springer, Attorney for IWO/Sprint

 

Ms. Metcalfe stated that the balloon test was conducted as scheduled, and that one of the balloons got away.  Only two balloons were floated:  One at 70’ for the tree canopy height, and one at 90’, the proposed tower height.  She stated that the tower was visible from only one place, as far as they could determine – from one location on southbound I-89 from Sutton, at mile 22.  Photos were taken and a simulation was made of the “brown stick” type of tower.  These photos were distributed to the Board members.

She then added that the balloon was visible from the end of the Pletcher’s driveway.  She also noted a correction to the minutes of the February meeting – the elevation for the proposed tower is 757’, not 575’ as stated in the minutes.  Ms. Mical said that the balloons were visible from Pumpkin Hill Road .  Ms. Thoits said that the balloons were not visible from Waldron Hill, but were from I-89.

 

Mr. Klinedinst asked for clarification: referencing Photo #3, were the balloons were not visible from North Road , or the tower was not visible from North Road ?  Ms. Metcalfe said that the photo shows where the beginning of the access road will be on North Road , and that neither the balloons nor the tower would be visible from that location. 

 

Ms. Thoits closed the meeting and opened the Public Hearing. 

 

Ms. Mical stated that the ridge line in that area is between 880’ and 820’, measuring from the top of Tory Hill to Quimby Road , using a topo map.  The ordinance states that the top of the tower must be 100’ below the ridge line, and this application does not meet that requirement of the ordinance.

 

Ms. Metcalfe read from Section 1003.02 (b) of the Wireless Telecommunications Facilities Ordinance:  In all cases, new tower construction must be able to be accomplished in such a manner that the top of the tower is at an elevation of no less than one hundred (100) feet below the elevation of the summit and its extended ridge line of the nearest peak, up slope from the tower site.

 

Ms. Metcalfe stated that this was something that they had struggled with and discussed at the previous meeting.  She said that the language is somewhat ambiguous and subject to interpretation.  One of the problems is that “what is up slope” and “what is the nearest ridge line” depends on where you are standing, because the discussion is concerning something that has a 360 degree circumference.  It was discussed with their attorney as well as one of the members of Warner’s Planning Board, who had helped with the writing of the ordinance in question, because they were struggling with the interpretation and wanted to construe it to be a reasonable provision.  What was determined was that when talking about a ridge line, it appears that the language indicates that you are talking about two different peaks – a summit and the extended ridge line of the nearest peak.  This was interpreted to be that Tory Hill’s ridge line extends along the road and is the longest ridge line in the area.  The North Road was built along the ridge line, just as I-89 was built between that ridge line and the one on the opposite side.  She said that that ridge line extends to Couch Hill and is well over 1000’, which puts the tower well below that elevation.

 

Ms. Mical said that the purpose of the ridge line part of the ordinance was so that a tower could not be seen – if one stood back from the tower, it had to be pasted into the side of the hill so that there wouldn’t be coverage on both sides of a hill.  The pictures show that this tower is sticking up above the ridge line, from I-89.  It wouldn’t be visible at all if it met the ordinance. 

 

Mr. Pletcher said that wasn’t true.

 

Ms. Hinnendael read from Section 1003.00 Siting Standards, 1003.01 (f) of General Provisions:  No tower shall be permitted in any location unless there is an existing tree canopy within a radius of 100 feet of the proposed location.  No tower shall be permitted that protrudes more than 20 feet above the average height of the tree canopy within a radius of 500 feet from the proposed location.  Tree clearing within the 500 foot radius beyond the absolute minimum required for construction, shall be prohibited.

 

Ms. Hinnendael said that she didn’t know why they were talking about Couch Hill, when it is much farther than 500 feet, and it was pointed out that 1003.01(f) is a different provision of the ordinance and refers to height of the tower, not the ridge line.

 

Ms. Metcalfe said that this [ridge line] provision might be revisited because it is acknowledged that it is problematic.  It is difficult, at best, and is subject to any number of interpretations because some of the terms haven’t been defined and they did the best that they could to construe it in a manner that seems reasonable.  There is always going to be a point where you may be able to see the top of a tower, because it has to be above the tree line or some hill or ridge line -- but this tower is minimally intrusive.

 

Ms. Mical said that the company is trying to provide service to I-89, and Ms. Metcalfe said yes -- that, and the village. 

 

Ms. Thoits said to her, when you are discussing the ridge line, it depends on where you are standing.  Ms. Mical said that, as Ms. Metcalfe stated, the tower is at an elevation of 757’.  If the ridge line is between 880’ and 820’, this doesn’t meet the stipulations of the zoning ordinance. 

 

There was discussion about how Ms. Mical arrived at her numbers, and she said that Quimby Road is the next peak.  There was much disagreement about how to determine the ridge line and interpretation of the ordinance.

 

Mr. Springer said that his understanding of the ordinance was that the ordinance started out with the 100’ below the ridge line stipulation, then the 20’ above the tree canopy stipulation was added, and the two combined create a catch-22 situation. 

 

Mr. Springer said, to summarize Ms. Mical’s position,  that on a topo map Tory Hill has an elevation of 820’, then there is another hill with no name that is 880’.  He said that both Mr. Pletcher and Ms. Metcalfe have stated previously, and it is their position, that that is one section of the ridge.  He said that a ridge is defined as the spur or the point between two points.  He said that looking at the topo lines on the map, the ridge runs from Tory Hill all the way up to Couch Hill.  A fair reading of the topo map would say that the ridge line runs from Couch Hill to Tory Hill, and that it is arbitrary to pick a point to stop, like Quimby Road .  He said that when dealing with an ambiguous ordinance, the court will look at the intent of the ordinance, and the intent here is to get towers off of summits and down slope.  Ms. Mical said she agreed – so that the tower doesn’t show above the top of the ridge line.  Mr. Springer said that he believes that they meet that stipulation, if the question is that you can’t see it from anywhere in town.  Ms. Mical said that the photo shows that it doesn’t meet that criteria because it can be seen above the ridge line.  Mr. Springer said it does meet the criteria if you are looking from another angle, and from 99.9% of the places in town.  He said that Couch Hill is over 1100’, and that most of that ridge is over 900’, so using that ridge as a point of reference would mean that they meet that ordinance.

 

Mr. Pershouse [Planning Board co-Chairman] said that the intent of the ordinance was to prevent large towers.  At the time the ordinance was written, the height was 180’.  If towers were located along significant view sheds and ridge lines, because those are the obvious best technical locations, those are also the most unsightly locations as far as aesthetics and view sheds.  One of the areas that was focused on was concern about the Mink Hills, in particular, and the writers of the ordinance worked very hard to get the best definition possible to get the tops of the towers below significant ridge lines.  The significant hills for concern were Tory Hill, Burnt Hill and Pumpkin Hill.  It wasn’t in the best interest of the town to have towers located at elevations of that nature and clearly visible from many areas of town.  If they could be located lower, they could also provide the necessary coverage.  He said that the amendment of the ordinance to include the 20’ above tree canopy [stipulation] affects this issue of ridge lines.  At the same time, Sutton’s tower at mile 22 is visible from southbound I-89 for a very brief time, and then it goes away.  If that same tower is looked at from Tory Hill Road or from Pumpkin Hill, it appears about halfway down on the slope at a point that does not impact the skyline and it is nestled into the hill.  It seems to be a very effectively located tower.  He said that to speculate as to what would be ideal in this case, it would be to have this tower located lower down the slope and serving that corridor, which he assumes is the primary intention.  He said that the problem is that at the point where the tower is proposed, the zoning is R3, and to move the tower farther down slope would put the tower into OC1 zoning, where towers aren’t allowed without a variance from the Zoning Board of Adjustment.

 

Mr. Klinedinst asked Mr. Pershouse how the Planning Board defines a ridge line.  Mr. Pershouse said that from a functional point of view, from where he lives on Pumpkin Hill, you see the Sunapee range, then the Sutton Hills and Tory Hill ridge.  If this were a cell tower with the external arrays and not a PCS tower, it would stick up and be clearly visible and would, therefore, be objectionable and would disrupt a view.  Basically, the Board worked hard to protect the views that they thought were important to the town and that they thought were significant, and the thought to put the tops of towers below the ridge lines seemed to be the answer.  That is why it was written that way and wasn’t amended at the time that the 20’ above tree canopy was written.

 

Alice Chamberlain said that she had a hand in the restructuring of the ordinance, and that it was felt that the two parts of the ordinance being discussed would work together, and she also considered that the requirement that a tower be 100’ below the ridge line would continue to be very important to preserving the view shed and limiting the visual impact of the towers in spite of reducing the height requirements.  She said that the two work together very well, in her opinion.

 

Ms. Thoits closed the Public Hearing and reopened the Board meeting.

 

Ms. Hinnendael asked if it were a concern that the road going to the proposed tower site went over property that is in OC1 zoning.  It was determined that that issue wasn’t addressed in the ordinance.

 

Ms. Mical made a motion that the Board not approve the application because it doesn’t meet the ordinance requirement of being 100 feet below the ridge line.  The motion was not seconded.

 

Mr. Klinedinst made a motion to approve the application of ATC Realty.  Mr. Wallace seconded the motion.

 

Ms. Thoits asked the Board if they understood that a Yes vote would give ATC Realty the approval of a Special Exception to build this cell tower, and a No vote will put them back at square one.

 

The vote was called:    Ms. Hinnendael – No; Mr. Klinedinst – Yes; Mr. Wallace – Yes; Ms. Mical – No;

Ms. Thoits – Yes

                       

The motion passed by a three to two vote. 

 

VI.                 Case #02-02:  Variance

AMERICAN TOWER CORP., 116 Huntington Avenue, 10^th Floor, Boston, MA 02116, requests a Variance to the terms of Section 1003.01 (f) of the Wireless Telecommunication Facilities Ordinance to build a monopine telecommunications tower to a height of 119’.  [Received:  ZBA approval of a Special Exception ( 01/14/02 ) and Planning Board approval of Site Plan for a 109’ camouflaged monopine tower ( 3/04/02 )]

Carrie Fitzsimons, Project Manager, Charles Schwartz, Verizon representative, and another Verizon representative

 

Ms. Fitzsimons stated that American Tower is requesting a Variance under Article XVII (B), which states, “The Board may authorize a variance from the terms of this ordinance for a particular use or parcel of land or for an existing building thereon where, owing to conditions especially affecting such parcel or such building but not affecting generally the district in which it is located, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship to the applicant, and where desirable relief may be granted which would not be contrary to the public interest and without nullifying or substantially derogating from the intent or purpose of this ordinance.”

 

She stated that based on that section, the ZBA is allowed to grant a variance if they are able to prove unnecessary hardship.  “In the past, in New Hampshire , there has been a very restrictive definition of unnecessary hardship and a lot of variances have not been granted.  The previous standard was basically that you cannot use your property for any other purpose other than that for which you were asking a variance.  However, I have produced a copy of a case in the application – the case of Simplex Technologies, Inc. v. Town of Newington 145 N.H. 727 (2001).  Basically, that case eased up the variance standards to allow towns to grant variances not just when the property can be used for no other reason, but when not granting a variance would constitutionally interfere with the property rights of that property owner.  A little bit of background on the Simplex case:  Simplex was a corporation that owned 92+ acres and had a manufacturing plant already on the property.  They wanted to develop about 6 acres to put up a family style restaurant and under the zoning bylaws, they could only do so if they asked for a variance.  They went up in front of the Zoning Board, and the Zoning Board said that they didn’t meet the variance criteria currently under State law.  They took it to the trial court level, and the trial court agreed.  They appealed to the Supreme Court, and the Supreme Court said that it was a very difficult variance standard, and we are not going to hold onto that variance standard anymore and that approach is inconsistent – that the zoning ordinances must be consistent with the character of the neighborhoods and the zoning ordinances must not be unreasonable and arbitrary.  In effect, what the court wanted to do was to give a balancing test between the police power of the State and the State’s right to regulate property and individual property rights under the constitution.  With all that legal talk aside, what it boils down to is that the court said that “We have a whole new of variance standards, and these standards are:

1.        a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment;

2.        no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and

3.        the variance would not injure the public or private rights of others.”

 

Ms. Fitzsimons described the three page letter to the Board that the included with the application for the variance, stating how Verizon Wireless meets each of the three criteria for unnecessary hardship:

1.        There are two leaseholders with property interests in this piece of property:  American Tower Corporation and Verizon Wireless.  The zoning restriction of 20’ above tree canopy will interfere with Verizon Wireless’ leasehold on the tower because they are not going to be able to fulfill their FCC obligations at the only available mounting height.  AT&T Wireless is going at 99’, and IWO is going at 109’.  Verizon studied the 89’ height and it does not work for them, but 119’ is an acceptable height.

2.        There are two sets of ordinances here – the general Town bylaws of the Town of Warner , and the Telecommunications ordinances.  The town bylaws have a two-fold purpose of “promoting the health, safety and welfare of the inhabitants, and preserving the values and charm now attached to the town…”.  The general purposes of the Telecom bylaws are three-fold:  to minimize the visual impact of towers, to maximize co-location opportunities and to reduce multiple facilities in one area.  The specific restriction on the property limits the tower height to 20’ above the tree canopy, so “we believe that granting this variance to allow Verizon to locate at 119’ would not only allow them to provide these essential services to the Town of Warner, but we would be in fact promoting these goals of the ordinance by minimizing the number of towers in the area – it is a stealth tree, it still will be camouflaged and therefore minimizing the visual impact.  Because Verizon will be able to locate on this existing tower rather than coming in on a new application for an additional tower in the same area with the same coverage objective, we’re promoting the ordinance goal of reducing the number of facilities in one area.

3.        The public rights – we’re going to provide this necessary communication link, we’re going to enhance the wireless services in the area and we’re going to allow Verizon to fulfill their FCC obligations.  The private rights – you will recall that we did a balloon test for the original application, floating a balloon at 89’, at 110’ and one at 130’.  Because we did float that balloon at 130’, we were able to do photo simulations showing the tower height at 119’ without having to go out and float another balloon.”

 

Ms. Fitzsimons showed these photo simulations to the Board.  She stated that the visual difference in height of the proposed 10’ would be undetectable and that there would be no negative impact of any private rights, and it will enhance the public by not only providing this communication from Verizon Wireless, but will eliminate the need for another tower in virtually the exact same location.

 

She also presented an analysis of how American Tower Corp. meets all of the five conditions set forth in Article XVII (B)(1) of the Zoning Ordinance. 

 

Question:       Mr. Klinedinst:  Is the FCC obligation a technical issue with radio transmission or reception?

Answer:         Verizon rep:  Verizon is obligated to provide coverage in certain geographical areas divided by market.  They are required to provide coverage to a certain percentage of the population.  The lower location height on the tower would cause Verizon to …..  (no answer).

Question:       Mr. Klinedinst:  I don’t think I’ve gotten an answer to my question – What is your FCC obligation?

Answer:         Verizon:  I don’t know the exact obligation off the top of my head.

Question:       Mr. Klinedinst:  Generally speaking – what are you trying to meet?

Answer:         Verizon:  Generally speaking, we have to cover a certain percentage of the population at certain time line intervals.  So every 5 years, we have to cover X amount, and every 10 years we have to cover X + 10.

Question:       Mr. Klinedinst:  Are these the same obligations as your other tenants?

Answer:         Ms. Fitzsimons:  Yes – whenever the FCC issues a license to a carrier, they can’t just sit on that license and not build it out.  That’s what the FCC does to ensure that the consumers in the area have not only one carrier to choose from, but multiple carriers to choose from in promoting the competition. 

Question:       Mr. Klinedinst:  When did Verizon realize they couldn’t meet these obligations at this height that it was originally approved for?

Answer:         Ms. Fitzsimons:  At my original application, we came in asking for 110’ and then knocked that down to 109’ – the whole time saying IWO was going to go at 109’ and AT&T was at 99’.  I think that sometime in the second hearing I had gotten the news from Verizon that at the 89’ level – because that 89’ level is right at the tree cover – they were not going to achieve the coverage required to close their substantial gap in coverage along route 89.

 

Ms. Hinnendael:  I think I disagree with that.  I think they pulled their application – my question on the night that we approved this was, “How many arrays are on this pole?” and the answer was, “Two, and possibly a third carrier.  If the canopy is at 89’, the signal might not be able to propagate over the trees at 90 ft.”.  So everyone knew this going in and I think Verizon lost out on this.

 

Ms. Fitzsimons:  That’s right – it’s all coming back to me now.  Verizon did pull the application that night, and we had found out internally that the 89’ level wouldn’t work, knowing all along and emphasized at the Planning Board level that we would look to come back to increase the height.

 

Question:       Ms. Mical:  Can Verizon meet this propagation by using the Webster tower, which has been approved already?

Answer:         Ms. Fitzsimons:  Verizon will have to answer that.

Question:       [to Verizon] – Can you meet your obligation by using the Dustin Road Webster tower that has already been approved?

Answer:         Verizon:  Was it approved at that time?   Ms. Mical:  No – the tower that was approved in Webster in January.

Answer:         Verizon:  Unfortunately, I’m not the RF engineer for this particular area.  The RF engineer for this area was not able to come tonight.  Without knowing exactly where the tower is…

Ms. Mical:     It’s about a mile away from this proposed tower.

Ms. Fitzsimons:  That was not run because at the time – the day, actually, that I filed this application --  I went to the Town of Webster and spoke with the clerk and she had told me that that tower was not approved yet.   It was appealed and was actually going back before the Board the next night.

Verizon:          Excuse me – if I could interject.  I do the searches, I’m the Sight Acquisition person, and I get issued the paperwork that says “OK, here’s where we want our site to be.”  Our search area is pretty well defined and it was pretty close, within less than a half mile of the highway, so our objective is to cover the highway.  I’ve been doing this for over five years and can say with certainty that moving this tower over a mile away from where I’m supposed to be is not going to give us the coverage that we need.  How tall is that tower? 

Answer:         Mr. Pershouse:  140 ft. 

Answer:         Ms. Fitzsimons:  I think US Cellular has the top mounting on that.

Ms. Mical:     Yes, but there are many mounting heights below that.

Ms. Fitzsimons:            Right, so assuming that US Cellular has the 140’ height, and assuming that there are no town spaces and not other carriers lined up, the next available mounting height would be at 130’, which is really only 10’ more than they are here and you’re talking over a mile away.

 

Question:       Ms. Latuch:  Is there any ownership between Verizon and American Tower Corporation?

Answer:         Ms. Fitzsimons:  No, they’ve entered into a dual lease agreement with us.

Question:       Ms. Latuch:  So any hardship that happens to Verizon is actually of no concern for us – it’s actually American Tower ’s concern?

Answer:         Ms. Fitzsimons:  They also have a leasehold interest in the property.

Question:       Ms. Latuch:  Not just Verizon, but any potential lessee of the tower – the hardship that we need to be concerned with is American Tower ’s hardships.  And since there are potentially how many different lessees, I don’t think that we should consider their hardships, but your [ATC’s] hardships. 

Answer:         Ms. Fitzsimons:  To answer, there are 2 hardships that I addressed to American Tower .  Without allowing Verizon to co-locate, we’re not maximizing out co-location potential on this tower site and that’s why we entered into a lease on the property.  We’re looking to maximize co-location potential.  Additionally, Verizon does have a leasehold interest in this property through the sublease with American Tower and if it would interest the Board, I can provide some case law of subleases and how it relates to property interest.  Our position here tonight is that Verizon is an affected party because it would be same as a strip mall – with a strip mall, in the Simplex case, the Barnes and Noble that was coming in on the property of Simplex, is the same case --it is a sublease with American Tower and Verizon with Verizon looking to locate on that same parcel of property.

 

Question:       Ms. Latuch:  So the hardship is the potential loss of business v. Verizon’s hardship would be their inability to have coverage? 

Answer:         Ms. Fitzsimons:  Correct

Question:       Ms. Latuch:  It’s not your inability to have coverage because American Tower ’s hardship is being able to have a tower that’s able to provide the most service to most number of lessees, right?

Answer:         Ms. Fitzsimons:  Right  There are two separate and distinct applicants and hardships in this case and granting a variance for 10’ will satisfy both of those hardships.

 

Question:       Mr. Klinedinst:  Are you obligated only to lease to Verizon at that height?

Answer:         Ms. Fitzsimons:  We  have entered into a lease agreement with Verizon for that height.

Question:       Mr. Klinedinst:  Are you obligated to keep that  -- for example, if this Board were to deny this application and XYZ Company came along, could you lease that height to them and Verizon would be denied?

Answer:         Ms. Fitzsimons:  There’s no outstanding lease agreement.

 

Question:       Ms. Thoits:  You have two people already, besides Verizon? 

Answer:         Ms. Mical:  They could go to the 89’, if it’s a company that can do it at 89’.

 

Mr. Klinedinst:  Let’s say that XYZ Company comes in and says, “At 89’ – the same height that Verizon has an FCC obligation for –  we’ll give you an FCC obligation there”, could you lease to them?

Answer:         Ms. Fitzsimons:  I’d have to read our lease agreement with Verizon, but right now I don’t think we have a lease agreement at 89’ with another carrier.

Mr. Klinedinst:  I’m not asking that.

Ms. Fitzsimons:  I don’t understand what you’re asking.

Question:       Mr. Klinedinst:  The question is – If Verizon goes away, for whatever reason, XYZ Company comes in – could you lease to them at 89’?

Answer:         Ms. Fitzsimons:  It’s our tower and we could lease at any height – 10’ or 20’ height.

Question:       Mr. Klinedinst:  So the impact of losing, or not approving, Verizon really would possibly be only a temporary impact to your tower?

Answer:         Ms. Fitzsimons:  Not at all, because Verizon is probably one of the most flexible carriers out there right now.  They’re putting their cellular on this tower, and if it doesn’t work for them it’s not going to work for a PCS carrier.

Question:       Mr. Klinedinst:  But the two companies that are below them on the tower don’t seem to have a problem meeting the FCC obligation.

Answer:         Ms. Fitzsimons:  That’s because they are far enough above the tree cover where they can still propagate and meet their coverage objectives.  If Verizon could take that 99’ spot, they would, but someone else is already there. 

Question:       Mr. Klinedinst:  So they were, essentially, the third person to apply to your company?

Answer:         Ms. Mical and Ms. Fitzsimons:  Correct.

Answer:         Ms. Latuch:  I think they were the first, but then they were going to go with someone else, and now…

Answer:         Ms. Hinnendael:  And then Mr. Feinberg came in and said,” We’re not going with this tower company.”

Answer:         Ms. Thoits:  I think Verizon was the company that was going to go with the company across the street.”

 

Ms. Hinnendael:  That’s right.  They pulled out, and now they’ve come running back, and I think Verizon made a bad business decision – not us [the Board], not you [American Tower], Verizon did.  I remember when we voted on this.  This was the first application under the new ordinance and the intent of the voters was very clear.  This could possibly mean more towers in our Town – more shorter towers that we couldn’t see as much of.  There were pamphlets handed out at the Town Meeting saying “This is what this ordinance means”.  Everyone voted, and it was supported.  Going back to the minutes, you knew that there were just going to be two carriers…

 

Ms. Mical and Ms. Latuch:  With the potential of three carriers.

Ms. Latuch:  We actually approved something that was a monopole, and it was later changed to a monopine.  We approved something that was a monopole specifically because the coverage was going to be better and it was going to be unobstructed.

Ms. Thoits:  But that’s not their problem, if the Planning Board changed it. 

Ms. Latuch:  I understand that,  but the height part – it was actually a very smart move on your part to amend the application within about 30 seconds, to amend it from 110’ to 109’.  But I think that coming back now and putting an additional 10’ on it…  What’s to prevent any company from doing that?  Or your company coming back next year and asking for additional height?

 

Ms. Fitzsimons stated that they cannot build an extendable monopine tower, as also stated to the Planning Board.  The most that it could be extended would be 10’.  As the tree gets taller, the base gets larger.  American Tower has tried to follow the ordinance to the letter and spent a lot of money finding the exact tree canopy height.  She said that they didn’t say “plus or minus” on the height, like the second tower applicant did.  If they had, Verizon would be on the top of the tower right now.  She said that maybe that one foot might have made a difference in being able to co-locate another carrier.   She said that there is no intention of trying to sneak up on the Board and add additional height – if this variance gets approval, it will be a three-carrier tree.  If not, it will be a two-carrier tree.  But there would possibly be another application from Verizon for another area.  The argument being made – and the point of the Supreme Court and the Simplex case – you have to weigh the interest of applying the exact letter of the law v. the interest of the general purposes of the ordinances, which are to promote co-location and the facilities all on one tower as opposed to multiple facilities in one specific area.  Also, to preserve the charm of the town as it is now.  She said that the photos show that no one would know the difference between 109’ and 119’.  

 

Question:       Ms. Thoits:  Why didn’t you ask for just one foot in the variance application?

Answer:         Ms. Fitzsimons:  Because we already have someone at 109’ and we couldn’t put Verizon at 110’.

Question;      Ms. Thoits:  Why not put the other carrier at 110’ and put Verizon at 90’?

Answer:         Ms. Fitzsimons:  Then we’d have someone at 110’, 100’ and 90’, which is the same as 89’.  There are already executed lease agreements, and we’d get sued if we tried to break them.

 

Question:       Ms. Hinnendael:  Originally, you wanted 110’, 100’ and 90’.  

Answer:         Ms. Fitzsimons:  90’ wouldn’t work for them, either.  Originally, we didn’t have all of the propagation reports and we applied for what we were allowed to apply for under the ordinance.

 

Question:       Mr. Klinedinst:  Originally, you were approved for 109’ with two carriers and possibly a third?

Answer:         Ms. Fitzsimons:  Correct.

Question:       Mr. Klinedinst:     And that was after Verizon dropped out.  It left the possibility of a third, right?

Answer:         Ms. Fitzsimons:  Correct.

Question:       Mr. Klinedinst:  I guess what I’m struggling with here is, if I heard you correctly, if we follow the letter of the law, what we have is an approval and the approval doesn’t say that the third one has to be Verizon, it doesn’t say that Verizon will test to make sure they can be the third carrier – and I’m struggling with where your company is going to be hurt financially if we don’t approve Verizon because there’s somebody else that could come along and take that third spot and meet their FCC obligation.

Answer:         Ms. Fitzsimons:  If it doesn’t work for Verizon, it’s unlikely it is going to work for a PCS carrier.  We’ve been marketing this site for two years now, since our original lease agreement.

 

Question:       Ms. Thoits:  You’ve got it rented for two spots now?  And we’re talking about the lowest spot?  And that’s now down below the trees?

Answer:         It’s at the trees, because the tree canopy is at 89’. 

Question:       Ms. Thoits:  So what company is going to be able to do it?  They’re all going to have the same problem that Verizon has.

Question:       Mr. Klinedinst:   They accepted the 109’ height – we approved 109’ with two carriers.  If they know that the third one wasn’t going to operate at the lower level, why did they accept this?

Answer:         Ms. Thoits:  Because they couldn’t go for anything higher than 109’ because that is the ordinance.

Question:       Mr. Klinedinst:  So why are they asking this now?

Answer:         Ms. Thoits:  My way of seeing this is – if we give them 10’, it isn’t going to make a big impact.  You’re not going to notice a big difference between 119’ and 109’.  If we don’t give them this, Verizon is going to be back saying they’re going to build a tower back across the street where they wanted to put it in the first place.  I don’t want one over there, out in the open.  I want one back where I can’t see it. 

 

Mr. Klinedinst said that he doesn’t think the Board has enough information from Verizon as to why they can’t co-locate on the Webster tower.  He would like to ask Verizon to come back with information regarding whether they have that capability or not.

 

Ms. Fitzsimons:  I would like to address why we asked for the 109’ before we went to the Planning Board.  And I would also like for you to keep in mind that we got approval from this Board for a 109’ monopole, and we got approval from the Planning Board for a 109’ pine tree, and that has increased the cost 4 times.  We need to make that up, and by putting Verizon on there it’s not going to be the same.

 

Mr. Klinedinst:  But you could only support two carriers on that 109’ tower.

Ms. Fitzsimons:    A 109’ monopole, at that time.

Mr. Klinedinst:  Right, but you knew that you could only support two.

Ms. Mical:  They were approved for three – 89’, 99’ and 109’.  And they only had two at that time.

Ms. Hinnendael:  They didn’t have any at that time. 

Ms. Mical:     They had AT&T by the time it was approved.

Ms. Hinnendael:  But at the time, when I asked, I was told, “…it would hold two carriers – one at 100’ and 110’.  So now we’re talking 99’ and 109’.  A third carrier might be able to use the 90’ slot, but the canopy of 89’ in the area, the signal might not…”  So they knew right up front that they were not, possibly, going to be able to use a lot of carriers at that height.  That’s a business decision, to put Verizon on top or one of the other companies. 

Ms. Thoits:  So you’d rather have another pole from Verizon, because they can’t put any more on this one?

Ms. Hinnendael:  We were told that we would have multiple poles if we passed this ordinance, and I knew that.

Ms. Mical:     And they have to prove that they can’t go to the tower that’s been approved in Webster.

Mr. Klinedinst:  And any towers that are in the area. 

 

Ms. Fitzsimons said that the two carriers signed on for the tower now are at their minimum heights that will work for them.  Mr. Klinedinst asked if Verizon still had the top spot, at 109’, the person at the bottom couldn’t operate?  Mr. Fitzsimons said that they would probably be back in asking for a variance for IWO .  Mr. Klinedinst asked if they knew all of that going in – and Ms. Fitzsimons said that they didn’t have all of the final propagation data back, but they had an idea that at 89’ with the tree cover, the antenna would be below the tree cover and it wouldn’t propagate properly.

 

Ms. Latuch said that Verizon’s hardship was a poor decision on their part because they had the opportunity to have all kinds of propagation – they had propagation charts at the earlier meeting.  Ms. Fitzsimons said that they are at this meeting with a new application with a new set of facts – and that the tower that Verizon was going to go to is now not going to be built [by Environmental].  Ms. Mical said that wasn’t the Board’s decision, that they had pulled their application.  Mr. Klinedinst said that he doesn’t see the hardship because American Tower knew all of this information going in.  Ms. Fitzsimons said that under the new case law, they already are using the property interest for something – they already have a tower there.  Under the new law, the standard isn’t that we can’t use it for anything else, it’s that they aren’t reasonably enjoying their rights on the property.  Under the ordinance, with the purpose and intent of maximizing co-location of promoting growth in the area and to reduce the number of facilities, we feel that we meet the spirit and intent of the ordinance. 

 

Additionally, she said that she would like to ask the Board to continue the hearing, and that they would come back with propagation from the Webster tower, showing why Verizon can’t, or if Verizon can, use the Webster tower.  At that time, she would also like to introduce some case law on the relationship of a sublease with American Tower and how that hardship would come into play. 

 

Mr. Klinedinst said that they weren’t their sublease when they got the approval, and Ms. Fitzsimons said that they are now.  This is a whole new application on behalf of Verizon Wireless, regardless of what happened in the past. 

 

Question:       Ms. Hinnendael:  If this is a new application, will it have to go back before Planning Board for Site Plan Review?

Answer:         Ms. Mical:  Yes.  It if is approved, it goes through the whole process again.

 

Ms. Latuch commented on the possible precedent setting aspect of this variance, and questioned whether the State’s ordinance was in direct conflict with Warner’s, in that the State would like to see fewer taller towers and Warner wants to have more shorter towers.  It was the first tower and the first variance that has been asked for.

 

Question:       Ms. Fitzsimons:  If we were to come back before the Board and amend the original application, saying that the tree cover is  89’, plus or minus 5’, giving us a tree canopy of  91’ and thus coming in with an application for 114’?   We would then have carriers at 114’, 104’ and 94’.  Is that procedurally something we could do, since apparently the plus or minus 5 feet is acceptable?

Answer:         Mr. Klinedinst:   You’re asking for pre-approval of your application?

Question:       Ms. Latuch:  I don’t remember the specifics of why you amended your original application from 110’ to 109’.

Answer:         Ms. Mical:  Because there wasn’t a plus or minus, and now there is.  The other applications that have come in didn’t to the measurements as exactly as Carrie did.

 

Ms. Thoits:   Because the 109’ met the 20’ stipulation, and she didn’t come back for a variance on the originally asked for 1’.

 

Ms. Fitzsimons said that 5 additional feet might could potential make a difference, and the propagations would have to be re-run.  In all fairness, she said she was told that there was no plus or minus – that with a tree canopy of 89’ and a tower request for 110’, she would be denied. 

 

Question:       Mr. Klinedinst:  Let me take the opposite approach.  Has Verizon actually done some propagation tests at various levels on that tower, and we know the minimum that you can operate on?

Answer:         Verizon rep:  I believe that the test work was done by the engineer that’s responsible for this site, but I’ve not been made aware of any. 

Answer:         Basically, what Verizon has done is a composite.

 

Ms. Fitzsimons showed some propagation maps to the Board.  The Board discussed these propagation maps.  Ms. Fitzsimons said that applications will be coming in for Exit 8 as well as Exit 9.  She said that the extension of this tower at Exit 7 would be to eliminate the need for a second tower in the same area.

 

Ms. Mical said that it is incorrect to say that Warner has to provide space for every carrier in the world, just that Warner has to provide tower space, period. 

 

Ms. Thoits said that she doesn’t think it is fair to penalize Verizon by telling them that they “missed the boat” – that isn’t a good reason to deny the application.  Mr. Klinedinst said that Verizon should be given the opportunity to look at the propagation maps for any towers that have come into the area or been approved in the last 30 days – whatever Verizon thinks is appropriate to support their case.

 

Ms. Fitzsimons said that the minimum number of carriers on a tower that makes it feasible is quoted at 2.5 carriers.  Mr. Schwartz stated that it may not be a legal definition of hardship, but that there is a hardship for American Tower because they came in with an application for a tower with carriers for coverage as well as a profit.  He said that they got a tower that will only hold two carriers, which means that they haven’t achieved their 2.5 number, and then the town turned around and “gave them a hardship” by saying that they have to build a monopine tower, which costs four to five times more than the originally proposed monopole type of tower.  He said that the approval of this application will mitigate their hardship.

 

Mr. Klinedinst said that he disagrees with the idea that the Board has given American Tower a hardship, because they can make up that loss somewhere else. 

 

Question:       Mr. Klinedinst asked if three vendors is the maximum at 119’ height.

Answer:         Ms. Fitzsimons said yes, unless someone comes along and says that they’ll take the 89’ height.

 

Ms. Fitzsimons asked if they were to come back and amend their original application, stating that the tree cover is 89’, plus or minus 5’, that would bring the tree canopy up to 94’.  They could then have a tower of 114’ and then either try to put Verizon at 114’ and bump the other carriers down (which she said she doesn’t foresee happening) or pumping the other two carriers up and placing Verizon at 94’.  The RF studies would have to be run again to see if that would be a viable solution.  Ms. Mical said that they could come back to the ZBA with an amended application.  Ms. Hinnendael asked if it would then, if approved, have to go back to the Planning Board.  Ms. Mical said that anything American Tower does will have to go back to Planning Board for a Site Plan Review. 

 

Ms. Latuch asked if the applicants could ask for a variance to the original application, and Ms. Mical said that it would be setting a precedent.  Ms. Thoits said she disagrees that every application should be heard on its own merits.

 

Ms. Fitzsimons said it promotes the goals of the ordinance to approve the extended height instead of building another tower.  Ms. Mical said that she thinks it makes sense to require the applicant to check out the tower recently approved in Webster to see if it will work for Verizon. 

 

Mr. Klinedinst asked how much time Verizon needs to get the requested information, and the answer was 2 weeks.

 

Ms. Thoits closed the Board meeting and opened the Public Hearing.

 

Mr. Pershouse:  “The ordinance is written in a way that the burden of proof of coverage and availability of other facilities essentially is on the applicant’s shoulders.  I am somewhat aghast that each and every time, we have to ask the provider or the tower builder about the facilities in a 20-mile radius.  This is information, in my opinion, that should be brought to this board voluntarily at the outset of the process.  At the beginning of the process, the applicant should say, “We have looked at the Webster, we have done this and this and this….”   I would also add, parenthetically, that now that the Supreme Court has made a decision on the Kearsarge Tower , that is in fact, at least nominally, an available site for a provider.  It is interesting, also, that US Cellular is doing just fine on top of Mt. Kearsarge and have not come back to us since it was built.  I know there are issues about the distance of that tower, but I don’t understand why we as a town have to be reactive and say “what about this?”, etc.”  I don’t know why the previous applicant didn’t mention why they couldn’t use the Sutton Tower .”

 

Ms. Thoits:  “I believe they did give us a statement of having tried the other towers.”

Mr. Pershouse:  “They didn’t mention Kearsarge.”

Ms. Thoits:  “Yes they did.  At that time, the verdict had not come in on Kearsarge and they felt that they couldn’t go on Kearsarge because it was in litigation.”

 

Ms. Mical said that she had spoken with Mr. Paul Leary at DRED, who is in charge of towers and specifically the one on top of Mt. Kearsarge, and he said that there is a general moratorium on the space on that tower, but they will look at any application that comes from a carrier on a case by case basis, and if they think it is in the best interest of the state, they will approve it.  Ms. Thoits said that the ZBA didn’t bring it up to the applicant after the balloon test was done, and maybe it was the Board’s negligence in not asking them specifically if they had tried the Kearsarge tower.

 

Ms. Fitzsimons said that on the day that the application was filed, she went to Webster and was told that that tower was not approved.  It was in litigation and didn’t have a final approval and was, therefore, not an option.  The Kearsarge tower statement that US Cellular was doing fine up there and there is no need for another tower location – the Webster tower is US Cellular’s tower. 

 

Ms. Fitzsimons showed a map of the existing towers in the area. 

 

Mr. Pershouse:   “ Mt. Kearsarge is approximately 3,000 ft. high, and in an RF assessment, one must assume that you are dealing with similar terrain and similar distances.  There is an awful lot of stuff going on up on that mountain that is going big distances, and that is why that tower is there.  I’m not faulting you or your company for not looking at it – I’m faulting the process that the accountability for the coverage in the area must include more than just the towers in the immediate area.  It is myopic to just talk about one tower or one tower there, and the Kearsarge tower, from day one, has been a boondoggle, but it is a prime site and if it is available it need to be checked out.”

 

[Mr. Klinedinst was called from the meeting at this point and had to leave.]

 

Ms. Fitzsimons said that they will address the Kearsarge tower and any other approved towers in the area, and will prepare another propagation map.  She will include the Webster tower, even if it is still in litigation.  She was told that the Board approved the tower, and the abutters appealed the decision.  She said that she will follow up with Judy Jones in Webster.

 

Alice Chamberlain introduced herself, stated that she is an attorney and that she had a hand in rewriting the Wireless Telecommunications ordinance.  She addressed the issues of the variance from a legal point of view, particularly the conditions of the Simplex case.  She urged the Board to deny the applicant’s request for a 10’ variance based on the fact that the evidence is inadequate to meet the five criteria that must be met before a variance can be granted.  [see the attached copy of her presentation/statements to the Board]

 

Margie Lord stated that she was at the meeting on behalf of the Warner Conservation Commission.  She said that she supports Ms. Chamberlain’s comments. 

 

Ms. Thoits closed the Public Hearing and reopened the Board meeting.

 

Ms. Mical made a suggestion that the Board not make a decision tonight, and that American Tower and Verizon come back to the ZBA’s next meeting with Webster, Mt. Kearsarge, and the propagation possibilities at 94’ if the original application were amended to include the plus or minus 5’.

 

Ms. Fitzsimons asked the Board to grant a continuance until the May 8^th meeting so that they can come back with the requested information.

 

Ms. Thoits said that the matter would be continued until the May meeting.  Ms. Hinnendael asked where in the ordinance the “plus or minus” was located.  It was stated that it wasn’t in the ordinance, but that it had been determined after the other application was allowed to use the terminology that it was a reasonable thing because the tree height can’t be determined exactly. 

 

Ms. Chamberlain said that it was her understanding that when the approval was granted that additional footage was allowed for the canopy of the fake tree.  How high is that?

 

Ms. Fitzsimons said it is 3’ – 5’, but that it isn’t the tower.  It is the top of the “tree”. 

 

Ms. Chamberlain:  “When it went to Site Plan Review, in order to make the tree branches are added to the height – so that the visual height is now 3’ – 5’ more than the approved height of the tower.”

 

Ms. Mical:  “Is it also true that the top can be left off of the tree?  There was some discussion at some point about this.”

 

Ms. Fitzsimons:  “You can, but it looks like a tree without a top.  I think I was talking about why a stackable tree can’t be built.  At one site, someone tried to build a stackable tree and didn’t get the extra height they were looking for, so the tower didn’t have a crown on it.”

 

It was stated that with the “plus or minus” issue, it shows that a precedent has already been started.

 

VII.              Case #02-02:  Variance

Jonathan Crowdes, 78 Bean Road, Warner, NH 03278, Map 13, Lot 3-3, Zone R2, requests a Variance to the terms of Article VI, Section C(2) of the Zoning Ordinance to build a 3-season porch and attached deck on the north end of the house.  The addition will be on concrete posts and there will be no new foundation, running water or sewer.

 

Mr. Crowdes stated that the R2 zoning district has a 25’ side setback and house was built on the 25’ setback line.  The original setback for the area was 15’, and he couldn’t determine what the setback was when the house was built.  There is an existing a small landing with stairs that is already over the setback.  They want to remove that landing and add on a porch.  The porch will be 10’ from the house, and will be 15’ long. 

 

There was discussion on the location of Mr. Crowdes lot on the map presented, for purposes of orientation.

 

Ms. Mical said that the setbacks, at the time that the subdivision was granted, apparently were 15’ – which is the old R2 zoning rule.  She stated that in one other case that she knows of, which was Will Begin and the Highlawn subdivision, the same situation came up.  He wanted to build to the original setbacks, and this board ruled that he could.  If a person comes in to the town hall and asks what setbacks they have to meet, they are told the current setbacks. 

 

Ms. Hinnendael said that because of this development [on Bean Road ], the zoning has been changed.  Ms. Mical said that Mr. Klinedinst was granted a variance to build closer to his property line, and it was stated at the time, “Don’t come crying to us when the Chandler Reservation cuts the trees” – and we literally put it that way in his decision.

 

Ms. Thoits said that basically what the Board is saying is that when they built the house, the setback was only 15’.  Since then the setbacks have been changed.   The lots are long and narrow. 

 

The Board had discussion regarding the location of the lot and the location of the porch.  Ms. Mical asked which lot Mr. Collins’ house was actually on.  It was stated that he owns two lots, and that his house was on the front of Lot 3-5, and that the applicant’s house is on the back of Lot 3-3.  Ms. Mical said that the builder should have known what the setback was when the house was built, but it was not determined if he did. 

 

Ms. Thoits closed the Board meeting and opened the Public Hearing. 

 

Ms. Thoits read two letters from abutting property owners.  One from Dean Smith, Robert & Barbara Smith ( Lot 4 – across Bean Road ) stated that they had no objections and were in favor of the addition [to the Crowdes house].  The second letter was from Stephen M. Collins ( Lot 3-4 – next door) and he asked the ZBA to uphold the current setback rules – stating that the lots are narrow and that anything requiring a building permit needs to adhere to setback regulations to maintain privacy and quality of life.  He stated in the letter, in part, “If one variance is granted by the Board others with similar lots may feel also entitled.”

 

Ms. Thoits closed the Public Hearing and reopened the Board meeting.

 

Ms. Mical made a motion to grant the variance to allow Mr. Crowdes to build to the setback of 15’, which is in the original plan and which has been granted to other members of that subdivision in the past.  The motion was seconded my Mr. Wallace.

 

Ms. Hinnendael questioned the motion, based on the next door neighbor’s opposition to the variance.  Ms. Mical said that yes, because a person coming to lot 3-4 would have the ability to build way in front of this house or way behind them.  She said that it is true that if a house were built right next to the existing house, it would be very close.  But she feels that those lots are such that it would be acceptable.  She said that there is also a view farther out that has been discovered and that people are now building farther out on the lots.  Ms. Latuch said that because Mr. Collins’ property is in current use, the likelihood that there will ever be a house built close to Mr. Crowdes’ house is small.

 

Ms. Thoits asked if there were any way to put the deck on the front of the house.  Mr. Crowdes said that the roofline would be difficult to match, and the septic system is in front.  The other side is a walkout, so the deck would have to built up 2-stories.  He stated that he would put the deck someplace else if he could.

 

Ms. Mical asked if the Zoning Ordinance requirements for the variance had been answered.  It was determined that they had been.  Ms. Mical said that granting this variance was not contrary to the spirit of the ordinance, and that she feels that it should be granted based on the fact that Mr. Begin had been allowed to go back to original setbacks in his subdivision within the last two years.  Ms. Hinnendael said that she would approve the variance based on the fact that there is already a deck there, and this would only be an additional 5’. 

 

Ms. Thoits said that “hardships can be defined as a needless restriction of a person’s right to enjoy the lawful use of his property caused by the inability to comply with the exact terms of the zoning ordinance because of a particular characteristic of the land.”  The fact that the lot is narrow was considered.

 

The vote was called:  Ms. Mical, Ms. Hinnendael, Mr. Wallace and Ms. Thoits voted Yes.  The motion passed by a unanimous vote.

 

The Board advised Mr. Crowdes that the abutters have 20 days to file an appeal.  It was stated that the Notice of Decision would be sent to Mr. Crowdes the next day.

 

VIII.            Communications and Miscellaneous

 

­Bradford application

 

 

Resignation of John Dabuliewicz

 

 

Question:       Can a mobile home be moved across town to replace a current mobile home?

 

Ms. Mical said that a mobile home on Collins Road is moving over to a mobile home on Schoodac Road .  Ms. Thoits asked if the mobile home on Schoodac Road is in a mobile home park.  The answer was no – it is an existing mobile home on an existing lot.  Ms. Mical said that if the owner bought a new trailer, he would be allowed to do it.  The question is that used trailers aren’t allowed. 

 

Ms. Thoits read from the Zoning Ordinance:  Article XIII, Manufactured Housing [Amended 3/99], Section D: Limitations:  After the effective date of this section, no manufactured housing shall be located other than in a manufactured housing park or manufactured housing subdivision approved pursuant to this section.  A manufactured house lawfully existing as of the effective date of this Section on land outside of a manufactured housing park or subdivision, or a replacement thereof if such housing unit is destroyed by fire or casualty or is in a state of disrepair and its replacement is located on the land within 180 days after such fire or casualty, may be maintained as a non-conforming use, provided that when such use shall be discontinued by the removal of such housing unit for a period in excess of 180 days, the use of such land shall thereafter conform to the provisions of this ordinance.

 

Ms. Thoits said that could be replaced if done within 180 days – but she doesn’t know the state of disrepair this trailer in question might be in.

 

Ms. Latuch asked what the circumstances are behind this move. 

 

Ms. Mical said that leads to the second question, which is:

 

Question:  Can a house/structure be built where a mobile home was if the mobile home didn’t meet the setback requirements?

 

The mobile home on Collins Road is on a microscopic lot.  The people that posed the questions would like to build a house on Collins Road , and feel that it would be an improvement on that lot to have a stick-built over a mobile home. 

 

Ms. Thoits asked if the mobile home that is being replaced is in disrepair, and Ms. Mical said that it is older than the one that would be moved from Collins Road . 

 

Ms. Latuch said that the spirit of the ordinance is to avoid someone selling a new mobile home and moving an older mobile home onto the lot.  As long as the replacement is a newer trailer, she thinks that it would be ok.

 

Ms. Thoits also read from Article IV, General Provisions, Section F:  Use Permit:  No permit for the erection, exterior alteration, moving or repair of any building shall be issued until an application has been made for the certificate of zoning compliance, and the certificate shall be issued in conformity with the provisions of this ordinance.

 

Ms. Mical said that the current mobile home on Schoodac is a doublewide, and the one coming in would be a singlewide, and probably longer.  It wouldn’t be on the same footprint. 

 

 

Fees

 

Sissy asked if the Board would approve charging $1.00 for letters sent to abutting towns in conjunction with applications received for Wireless Telecommunications Towers , which are sent to towns within a 20-mile radius of the proposed tower.  Currently these applicants are being only charged $.34.  There is the expense of time and paper and copies, etc. 

 

Certified letters cost $3.94, and are charged at $5.00. 

 

Ms. Hinnendael said that she thinks the Simplex case example should be checked out with the town’s attorney.  Ms. Mical said that the decision does apply and it changed the ordinances.

 

IX.                Adjourn

 

A motion was made and seconded to adjourn.  The motion passed.  The meeting was adjourned at 10:11 PM .

 

 

 

Minutes approved:    May 8, 2002

 

To:                  Members of the Warner Zoning Board

From:              Alice Chamberlin

Re:                  Application of American Tower Corp for a ten foot variance to the Warner Wireless Telecommunications Ordinance

­­­­­­­­­­­­­­­­­I urge the Board to deny the applicant’s request for a ten foot variance.

 

The evidence is inadequate to meet the five criteria that must be met before a variance can be granted.

 

1.       No diminution in values of surrounding properties would be suffered.

The Warner height requirement for cell towers (Section 1003.1 (f) of twenty feet above the average surrounding tree canopy recognizes the concern of visual impacts of tall towers on surrounding properties.  (Section 1000.00 (b) states one of the goals of the ordinance is to minimize the visual impacts of such facilities as viewed from other vantage points.  Ten additional feet on the tree will make the tower less appropriately scaled and make it more visible from all vantage points.

                               

2.       The variance would not be contrary to the public interest.

The public interest is protected by the existing regulation.  A balance is achieved between the needs of the telecommunication industry and the objectives expressed in the Warner masterplan and the goals of the town’s wireless facility ordinance (Sections 1000.00 (a-h) in preserving the rural character of the town.  The existing zoning ordinance passed by a substantial margin.

The public interest served by siting Verizon is not substantial.  I am a Verizon customer and there is not one part of Route 89 between Exits 7 and 9 that I don’t receive enough signal to make a phone call.  There is no requirement under the federal telecommunication act to provide “strong” or “total” coverage for every carrier.

 

3.       Denial of the variance would result in unnecessary hardship to the owner seeking it.

The new three parts hardship standard outlined by the Supreme Court in the Simplex Case is not met by the applicant.

(a)    The zoning restriction as applied to the property interferes with their reasonable use of the property; considering the unique setting of the property in the environment.  Clearly, because the applicant has already received zoning and site plan approval for a cell tower under our ordinance there is no interference with reasonable use of the property.  There is no obligation under this part of the standard to maximize the value of the approved use for the owner, applicant or lessee.

(b)    No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property.  In this case, the general purposes of the ordinances are directly supported by the height restriction in the ordinance.  The general purposes (Section 1000.00 a-h) speak to minimizing visual impacts, reducing impacts on aesthetics and historically significant areas.  The height restriction (Section 1003.01 (f) is one of the primary ways to implement the goals of the ordinance.

(c)    The variance would not injure the public or private rights of others.  This board is charged with the responsibility of implementing Warner’s zoning ordinances and it is the expectation of the public that small towers will meet the requirements of the wireless industry in Warner.  If a variance is granted in this case there will be no grounds for denying any variance request for taller towers to meet the business needs of the tower or wireless industry.

 

4.       By granting the variance, substantial justice would be done.

There is no substantial justice served here.  American Towers has received the permits that it applied for.  The question of a higher tower and number of carriers has been debated here and at the Planning Board.  There is no new or substantial information presented tonight that was not previously considered.

 

5.       The use must not be contrary to the spirit of the ordinance.

Finally, granting this variance would contravene the spirit of the ordinance by increasing the visibility of the tower. (Section 1000.00 (b,c); and not requiring Verizon to explore co-location on existing or proposed facilities (Section 1000.00 (d,f)).  In this case they are contending that co-location can only be accomplished by a variance.  The board does not know whether the proposed towers in Webster or Warner, or existing towers on Mt. Kearsarge or in Sutton, are possibilities.

 

In conclusion, I ask you to seriously consider the issue of the precedent you are setting if you allow this variance to our cell tower ordinance.  It would be difficult to deny other applicants who wanted to increase their height because of convenience, profit margins, and business decisions.  My experience in talking to people in town is that they fully understand the results of requiring shorter, well sited, well camouflaged towers.  Full public participation and confidence will not be encouraged by seeking to change the height of this first permitted tower in town and I urge you to deny the variance.