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Minutes posted at this web site have not been checked for consistency with the printed minutes that are available in the Wilton Town Offices. If you need the definitive minutes of a ZBA meeting, please obtain the printed minutes from the town offices.

APRIL 14, 1997

VOTING BOARD: Chairperson Neil Faiman; members Tom Mitchell & Carol Roberts; alternate members Joanna Eckstrom & Bob Spear.

CLERK: Diane Nilsson

AGENDA: U.S. Cellular & Isaak K. Blanchard - Variance

Mr. Faiman called the meeting to order at 7:32 p.m. and stated that the property owner had not signed the application. Mr. Blanchard signed the application at that time.

Case #4/9/97-1 BLANCHARD

U.S.Cellular (applicant) and Isaak K. Blanchard (owner), Lot D-133, 100 Wilson Road, in the residential/Agricultural District, requested a variance from Section 6.1 of the Wilton Zoning Ordinance, to permit the construction of a cellular telephone tower.

Mr. Faiman stated that the Wilton Zoning Ordinance permits the use of lots in the district for residential and agricultural purposes and a collection of other purposes under particular restrictions but does not permit commercial or industrial uses. Therefore, a variance would be required for such a use in this district.

Attorney Gregory Michael of Merrimack, representing U.S. Cellular and Mr. Blanchard, stated that they are requesting a variance to allow for the construction of a 180' cellular tower on the Blanchard property. He further explained that U.S. Cellular is one of two licensees of cellular telephone service in this area. Under the FCC regulations, U.S. Cellular is required to provide adequate service for the purposes of cellular phone transmission throughout the Hillsborough County area. The Wilton area is halfway between their Temple and Milford sites and right now there is a kind of dead zone here. He then showed maps which illustrated the current coverage vs. the coverage with the proposed tower.

He further stated that the cell sites are low powered, from 10 to 100 watts, and he showed pictures of a similar cell site. He stated that the proposal is for a 180' corrugated antenna plus 2 10' whip antennas plus 3 microwave dishes above the treetops.

He further stated that the Wilton Zoning Ordinance is a use style ordinance, which means that it lists the uses that are permitted in each district. If a use is not permitted, then the applicant must come before the zoning board to request a variance. Utility style tower use is not permitted in the Res/Ag district or any other district. Wilton hasn't actually addressed the issue of public utilities tower uses yet. fie also stated that there was no stated height restriction in the Res/Ag district.

He then addresses the five criteria for a variance. (See file) He stated that Mr. Blanchard's property is unique in that it is relatively large (22 acres) and it sits up on a hill so that it can be low enough not to require lighting. The FAA requires towers over 200' to be lit. He emphasized the safety benefits of cellular phones by mentioning 3 separate cases. (news articles in file) He further stated that the NH General Court, in notes accompanying RSA 362.6 encourages rapid development of quality telecommunications throughout the state. He further stated that even though the Wilton Zoning Ordinance does not address cell tower use, it would be unlikely that the ordinance would want to prohibit usage. He then mentioned the U.S. Telecommunications Act, passed in 1996, which specifically prohibits outright exclusion by a municipality.

Abutter Steve Blanchard stated that the land on either side of the tower site slopes to such a degree that it is unsuitable for building.

Abutter Phil Dupont asked how high the satellite dishes would be. Mr. Doug Wilk of U.S. Cellular answered that they will be above the treeline but below the top of the tower. He was not more specific than that. He showed a picture of a U.S. Cellular site with the same concrete building at the base and with an 80' tower. He explained that the tower in the picture is exactly the same as the one proposed except that the one in the picture is 100' shorter. He further explained that there are possibly 7 FCC telecommunications licenses being issued to this area, so more companies will be coming to Wilton looking to put up towers. Atty Gregory added that U.S. Cellular does allow co-location with other companies, so that more than one company's dishes could be located on this tower.

Abutter Dupont asked how many dishes, and at what location would another company require. Mr. Wilk answered that U.S. Cellular is asking for 3 dishes. If any further dishes were needed by U.S. Cellular or anyone else, they would have to go before the zoning board again.

Abutter Dupont asked if there was the potential for 3 dish requests from each of the seven cellular phone companies in the future. Mr. Wilk replied, yes.

Abutter Dupont asked what type of security measures there would be besides the fencing around the house and tower, to protect adventurous youngsters. Mr. Wilk answered that they were planning to install a 10' high chain-link fence with 3 strands of barbed wire at the top. He further stated that the inside of the building will be equipped with alarms in case someone breaks in.

Ms. Eckstrom asked about the solid construction towers being build in Bedford. Mr. Wilk answered that another cellular company is building them and they are a different type of system entirely.

Ms. Eckstrom also asked why the proposed tower couldn't be shorter, say 80', since the site is so high. Mr. Wilk presented computer printouts with colored areas showing reception coverage with a 155' tower and with a 180' tower. He stated that they would prefer a 300' tower but felt that an unlit tower would be the most acceptable.

Ms. Eckstrom stated that she experiences a degradation of quality in her cellular p~one coming into Wilton from Temple. She asked if that would be improved with the proposed tower. Mr. Wilk answered, yes.

Bill Keefe, attorney for abutters Paul and Alan Sweezy, asked about the size of the building. Mr. Wilk answered that it will be 12' X 24', made of precast concrete, with a fiberglass interior.

Mr. Spear asked Steve Blanchard how the property could be used either residentially or agriculturally. Mr. Blanchard answered that the property could be subdivided to allow for one more dwelling, but the family has no desire to do that. Mr. Spear also stated to atty Michael that the Wilton Zoning Ordinance does state a height restriction of 45' in the Res/Ag district as well as the Industrial District.

Wilson Road resident George Anderson asked when a Motorola-type satellite system would put cellular phone tower systems out of business. Mr. Wilk answered that it would never happen. That type of system will not be cost-affective for local use.

Atty Keefe stated that the Sweezy's, who live across the street from the proposed site, are convinced that the tower is ugly and will bring down their property value. It's a nice house and it will be staring right at the tower, he said. He further stated that it seems logical to him that if you have a house in a rural area and you're staring at a communications tower, that's going to bring down the price of your house. He asked if the applicants had any evidence to suggest that the project would not bring down property values. Mr. Wilk and Atty Michael both said that they haven't found any empirical evidence of towers affecting property values negatively.

Ms. Eckstrom asked how many towers have been constructed in residential neighborhoods. Mr. Wilk named Hollis, Merrimack, Troy and Marlborough as specific residential sites and said that he has constructed 126 sites and probably half of those are in residential areas.

Mr. Spear stated that he has read articles about neighborhoods in Mass. where the residents are very concerned about the visual pollution they perceive cellular towers to be, to the point where they are looking for ways to camouflage them. He asked if U.S. Cellular had a way to camouflage the tower so that the perceived devaluation of property values could be mitigated in some way. Mr. Wilk answered that there is no way to camouflage the tower above the treeline. In cities, tall buildings can be used for the towers. But because of the hills here, a tall tower is needed. He also stated that they investigated 6 other sites in Wilton and none would be better or less intrusive than this site.

Andy Hoar, who lives at the top of Wilson Road, asked about the width of the cross arms. Mr. Wilk answered that there would be 3 arms, extending out 6' each. Mr. Orr also stated that the tower would be right in the middle of his sunrise and he didn't consider that impact minimal at all.

Eleanor Davenport, a U.S. Cellular customer who lives in Wilton, stated that she has not had any problems with her cellular phone transmissions in Wilton. She also said that she and her husband chose to move to Wilton a year ago because of the beautiful, rural nature of the town. If the proposed cellular tower does go up, she feels that the town will be less appealing to future homebuyers like herself and her husband.

Mr. Wilk again stated that more cellular companies would be coming to Wilton seeking sites for their towers, and that there are reasons for building one tower. The FCC mandates that we build a tower in this town. We're trying to build it where if affects the least number of people.

Wilson Road resident Joan Anderson stated her concern with the impact upon Wilton

Center's historic nature. There are no wires placed on Isaac Frye Highway In order to preserve the historic nature of the area. Wilton Center is the heart of Wilton. It seems a shame to destroy that with something hovering on the nearby hill.

Abutter Sam Sweezy stated his opposition to the proposal. But he suggested that one 80' or 100' tower might be more acceptable since they would be much less visible. Mr. Wilk stated that U.S. Cellular wants the 180' height also because they can have more channels. If towers are at the same height, channels can interfere with each other. He also said that there are no studies showing the effectiveness of several shorter towers and whether the same result could be accomplished.

Mr. Sweezy then asked if any other sites they looked at were in the commercial zone. Mr. Wilk stated that they were all in the Wilton Center area because of the height needed in order to be in line with Temple Mountain and Federal Hill in Milford.

Abutter Richard Sharkey stated that he agreed with Mr. Sweezy's idea of studying the possibility of several smaller towers rather than this tall 180' tower. Mr. Wilk stated that they could study that but it wouldn't change this application which is for a 180' tower.

Mr. Sharkey stated that he thought it would be possible to get the same result that U.S. Cellular is looking for by building one more tower between the proposed site and Temple Mt. and reducing the height of both of them. Mr. Wilk stated that although U.S. Cellular has not budgeted for such a plan, it would be feasible. It would mean another hearing and more people would be affected.

Mr. Sharkey stated that, in his opinion, people would not object as strongly to shorter towers.

Ms. Roberts asked about the inside of the building. Mr. Wilk explained that there will be radio equipment, with fans in them, sealed batteries for back-up power, some telephone apparatus for sending a signal from that site to another site through microwave. There will be 2 3-ton air conditioners on the sides of the building with fans which run intermittently. We will bring in single-phase, 240 volt power above ground from the street via poles.

Chris Owen stated that although the zoning ordinance does not address where cellular towers such as this should be allowed, he feels the residential district is not the best place. He also reminded the Board that there is a 45' height restriction in the Res/Ag district.

Andy Hoar asked about the diameter of the dishes. Mr. Wilk replied that they are from 4' to 8' in diameter. Mr. Orr then stated that there was then the potential for 7 companies with 3 dishes each, or a total of 21 dishes @ 8' each totaling 56' of dishes on that tower. Mr. Wilk answered that that was taking it to the extreme. If the board limits the dishes to a certain number, then if there were a further need for dishes, future customers would have to come before the board for permission to add more dishes.

Mr. Hoar then asked if an additional building would have to be built for another company to use the tower. Mr. Wilk answered, yes.

Mr. Anderson asked if the site shouldn't be down the hill further, closer to Route 101. Steve Blanchard answered that actually, that was U.S. Cellular's choice for a spot but there is a large mica ledge there and the Blanchard's didn't want that destroyed.

Abutter Dupont stated that he spends lots of time in his backyard and he will see the tower from every part of his yard. It will be like a dinosaur looming over the horizon. He stated for the record that he feels that his property value will be drastically affected.

Dave Holden stated that he visited U.S. Cellular's office, and was assured by the salesperson that the service between Nashua and Keene was continuous and uninterrupted. So if this is the case, he continued, on what legal basis do you believe that you require a tower such as this. Mr. Wilk answered that although you can carry a call all the way through, it may not be a quality call. There will be static and sometimes a call drops. We're trying to improve the quality of the calls.

George Anderson stated that it seems to be an issue of which group do we inconvenience; the cellular phone users or the property owners who are forced to look at the tower.

Sam Sweezy stated that the hardship question is not met here since there is buildable and subdividable land on the Blanchard property.

Ms. Eckstrom asked Atty Michael about the federal FCC mandate re: towns having to accept cell towers. She felt that the town should be able to vote on a cell tower ordinance before deciding on where one should be located. Atty Michael stated that in essence the FCC act of 1996 allows the towns to participate in siting decisions, but does not allow the towns to prohibit these towers outright. In relation to hardship, nearly every town we go into we need a variance which requires a finding of hardship.

Eleanor Davenport reiterated that she has experienced good quality cellular service in Wilton. It may not be the highest quality, but it is good quality and it is here.

Atty Keefe presented the board with a fact sheet and summary of Section 704 of the Telecommunications Act . (See file) He then explained that the act states that the town can r ject this proposal. The town is not required to approve this. What the act says is that we can't ban all of them and we should adopt some sort of policy indicating where cell towers should or should not be located. In this case, he continued, we're talking about a big commercial use in a residential neighborhood, a 12' X 24' concrete building with the possibility of more buildings and more dishes coming with expansion. The tower itself is 17' wide at the base and 5' wide at the top with dishes and arms hanging off of that. So we're talking about a big commercial structure in a residential area, eighteen stories tall. Under the ordinance as it is written and with facts presented with this application, we think the board should turn this proposal down. A different proposal in a different place, or even a different proposal in the same place might be received differently by the people involved.

Abutter Sweezy stated again that he felt that a tower with the potential of more than 3 dishes was an eyesore for him and would affect his property values. Atty Michael responded that it is up to the town to limit the number of dishes and buildings allowed on the site.

Mr. Faiman closed the public hearing but did allow audience members to add information if it was felt the board was off on the wrong track. He then read from sections of the FCC fact sheet that was presented by Atty Keefe.

Ms. Eckstrom asked if the board was putting the cart before the horse in this case since the town had not yet voted on an ordinance to deal with the issue of cellular tower placement.

Mr. Faiman stated that with the exception of the hardship argument, this would be a straightforward variance request and an easy one for him to grant. The federal and state governments both recognize that cellular service is a public benefit. There is no hard proof that property values are affected by the presence of a cellular tower. But the hardship criteria is just not met. Hardship by definition is something which is unique to a particular piece of property which distinguishes it from other pieces of property similarly situated. The hardship argument that we are being presented with is that there is no place in the town of Wilton that is zoned to allow for cellular towers. That is not a hardship argument. This is an argument that the town has excluded something that it ought not to exclude. My inclination is to say that the proper place to remedy that is the town meeting and not at the zoning board.

Mr. Mitchell agreed with Mr. Faiman and added that the denial of this application will not prevent the applicant from fair usage of his land for intended residential or agricultural purposes. He also stated that an argument could be made that a decrease in property values will occur if the view of a particular property is obstructed by a cellular tower.

Mr. Spear pointed out that the state ZBA Guideline Book does state that the board should weigh the opinions of abutters along with its own understanding of the situation. Certainly the abutters have expressed the concern that their property values would be diminished.

Mr. Faiman stated that the argument for or against property value diminution is unsatisfactory either way. On the one hand it falls on the applicant to provide evidence to justify the application, and while the applicant argues that there have been studies that demonstrate that cell towers don't affect property values, we haven't had the chance to see those studies. On the other hand, courts have generally held that a preference on the part of an adjacent property owner is not a diminution of property values. A diminution of property values is when you put the house on the market and you don't get as many dollars as you would have liked. So you can feel sorry for someone who doesn't want to look at a cellular tower, that's not the same as a diminution of property values.

Mr. Faiman called on audience member and selectman David Glines who stated for the record that a 55'-60' tower presently exists on Pead Hill in a residential area. In that case, the applicant came before the ZBA for a variance from the 45' height restriction. He further added that the 45' height restriction exists because the fire department ladder trucks can't go higher than 45'.

Mr. Spear stated that the Pead Hill tower is in a gully, is aimed at Temple mountain and therefore can be much lower.

Mr. Faiman stated that the main issue in this case, for him, is the hardship issue. Mr. Mitchell, Ms. Roberts and Mr. Spear agreed. He continued and said that if the argument is that the zoning ordinance doesn't allow placement of a cellular tower anywhere in the town, then the remedy is to change the zoning and, in effect, not grant the variance.

Mr. Mitchell posed the question that if this property didn't meet hardship criteria then no property would. Mr. Faiman answered that if you had a site that was truly unsuitable for any legally permitted use, then you might say that we have to allow something that's not legally permitted, and it might as well be a cellular tower as any other unpermitted use. Mr. Faiman also stated that even though a cellular tower is not a permitted use in any district in the town, if an applicant came before the board and wanted to put a cell tower in an industrial district, he would be much more likely to grant the variance.

In response to a question from the board, Mr. Wilk stated that whichever property they try to build their tower on, each proposal will be for a 180' tower. He reiterated that they would like to go higher but will stick with 180' height.

Mr. Faiman stated that it may be that the town should provide for what U.S. Cellular is asking, but he didn't think that the ZBA is the body to ask.

Ms. Roberts pointed out that Wilton does have cellular service. Is it up to the board to decide if the quality of service is adequate?

Mr. Faiman stated that the key here is whether our decision has the effect of prohibiting the provision of personal wireless service. We can certainly say that there is wireless service available. It may not be of high quality, but it is there. But I don't think it's the responsibility of the zoning board to make decisions based on federal communications law. I think it's the responsibility of the town to make sure that it's ordinances are consistent with all appropriate preemptive federal and state laws. It's our responsibility to administer the ordinance in the way the state legislature & the state courts have told us that we should administer the ordinance. It's not our responsibility to rezone the town in response to federal preemption.

MOTION: Mr. Mitchell moved to deny the variance, seconded by Ms. Eckstrom, with all in favor.

Mr. Faiman stated that the variance was denied and the applicants will receive written notice of the decision in the mail. He further stated that the selectmen, any party to the action or proceedings, or any person affected thereby may apply for a rehearing of this decision. A request for a rehearing must be filed in writing with the Zoning Board of Adjustment on or before Monday, May 5, 1997 and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:22)

REASONS FOR THE DECISION

The board found that there was no hardship. No evidence was presented that the lot was unsuitable for any permitted use, and the lot is in fact being used at present for a permitted residential use. Furthermore, there was no evidence that the lot is different in any significant way from many other similarly situated lots in town.

The board also found, with respect to requirements of section 704 of the Federal Telecommunications Act of 1996, that personal wireless services are not effectively prohibited in the town, because there was testimony that cellular phone service is already generally available in the town.

ATTEST,

Diane Nilsson, Clerk

Posted: 4/22/97