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June 11, 1997VOTING BOARD: Chairperson Neil Faiman; member Carol Roberts; alternate members
Joanna Eckstrom and Bob Spear.
CLERK: Diane Nilsson
AGENDA: U.S. Cellular - Variance
L.A. Limousine - Two variances
John Barnes - Special Exception, two variances
After waiting unsuccessfully for a fifth Board member to arrive, Mr. Faiman called the meeting to order at 7:45 p.m. He then explained that each applicant would have the choice of postponing their hearing until a future date when a five-member board might be able to be convened, or going ahead this evening with a four-member board. He further explained that three members would have to vote in favor of a particular application for it to be granted, and, after agreeing to go ahead with a four-member board, an applicant could not later claim, as grounds for a rehearing, a decision made by a four-member board.
Case #6/11/97-1 BLANCHARD/U.S. CELLULAR
U.S. Cellular (applicant) and Isaac 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 120' cellular telephone tower.
Mr. Faiman explained that in the case of the U.S. Cellular application, the board is looking at an application very similar to one which was turned down two months ago. This creates an additional constraint in the proceedings because there is a legal requirement which states that an applicant can't submit an application for the same variance or special exception over and over again. Once it has been decided, it's decided. The supreme court has stated it thus: when a material change of circumstances affecting the merits of the application has not occurred, or the application is not for a use that materially differs in nature and degree from its predecessor, the ZBA may not lawfully reach the merits of the petition. In other words, before the board will be able to consider the applied-for-variance, we will need to reach a determination that there has either been a material change of circumstances or that the proposed use materially differs in nature and degree from the application of two months ago. Mr. Faiman offered the applicant two ways of presenting the application, to just argue the materially different in nature and degree aspect first or to present the entire case before the board makes the determination on whether to hear the case.
Attorney Greg Michael, speaking for U.S. Cellular, opted for the latter format and also accepted the four-member board to hear the case. He stated that U.S. Cellular has reduced the height of the tower by a third, which he felt was a significant material change to the application. He stated that this reduction in height in in answer to abutter and neighbor objections to the visual impact of the 180' tower proposal. This tower would not stick- up as far above the tree line of 50' to 80'. He stated again that under the Federal Telecommunications Act of 1996, a town cannot totally exclude communications towers, and Wilton's zoning makes no allowances for them. He also pointed out that if the tower were to be located in an industrial or commercial zone, which would also require a variance, these locations are 200'-400' lower than the proposed site and would require a much higher tower. He reminded the board that any tower over 200' must be lit as required by the FCC. He then discussed the hardship issue, stating that hardship is hard to pigeonhole in these cases. The classic definition will always keep towers out of Wilton and will thus be in violation of federal law. Mr. Blanchard's lot is 22 acres and there are severe slopes and wetlands that would preclude subdivision, and bedrock which would make agricultural development difficult. There is a hardship per se if a landowner can't use the land as he wishes. One house on 22 acres is not a reasonable use. He stated that they do have the right to go before the Planning Board and request a waiver from zoning in order to erect a tower, but would prefer to work with the town
Eric Morse of T.F. Moran presented a map showing the elevations of the town's commercial and industrial zones and stated that all sites in these zones would require a much higher, lit tower. The map also showed the central location of the proposed site relative to the commercial and industrial sites. He stated that the elevation at a centrally located industrial site along route 101 is 473' compared to the 730' elevation at the proposed site, so an additional 257' in tower height would be needed to get the same results, and this tower would require lighting and would be quite visible from many places.
Mr. Faiman pointed out that there does exist a commercial/industrial area just North of 101, near the proposed site. This was confirmed by Planning Board chair, Dick Rockwood. Mr. Morse agreed to figure out the elevation of this site. Mr. Michael then read the five criteria for granting the variance, which were the same ones presented at the April meeting. Mr. Morse then presented the calculations on the commercial parcel just below the proposed site, stating that its elevation is just under 600', which would require an additional 130' be added to the 120' tower height, equaling 250' approximately.
Doug Wilk with U.S. Cellular, stated that if the board approves the 120' tower on the Blanchard property, U.S. Cellular would most likely still need to build another tower, possibly in Wilton, to provide adequate coverage between the Federal Hill site in Milford and Temple Mt. When asked, he stated that just one tower on Route 101, at a height of between 250' and 275' would be needed to provide adequate coverage. But he added that a tower of that height needs to have the land to support guy wires stretching out usually to 80% of the height of the tower, or a self-support tower with a 25'-30' base. The current 120' tower proposal is for a self-support tower with a 15' base. In answer to questions about the current proposal, Mr. Wilk stated that the tower would bring in 7200 volt electric service. U.S. Cellular uses 200 amp, single phase 240 volt service to their buildings. The distance from Wilson Road to the tower is 450'. The new 120' tower proposal could possibly add only one additional cellular provider due to the reduced height.
Atty Michael presented the board with propagation charts showing the differences in cellular coverage between the 180' tower and the 120' tower. Mr. Wilk pointed out that this tower
will be covering Route 31 North as well as Route 101, although there will be a need for another tower between Wilton and Croched Mt. to complete that coverage.
Mr. Faiman, speaking about the decision that was made on the previous application, stated that although there was much testimony from abutters and neighbors in opposition to the height and the aesthetic impact of the tower, nonetheless, the board determination was based solely on the issue of hardship. The hardship decision was not affected by whether the tower was 180' or 120'. The decision was that there was no justification, for a variance for this sort of use in this place. If that is the case, then he felt that a 120' tower would not be materially different from a 180' tower with regard to the previous decision and the previous application.
Ms. Eckstrom stated that the purpose of the ZBA is to interpret the zoning ordinance, not to create zoning, and therefore felt that it was a matter for Town meeting to decide.
MOTION: Ms. Roberts moved to find that this application does not differ materially in nature and degree from the previous application by the same applicant and therefore the board does not have the right to proceed to the merits of the application. The motion was seconded by Ms. Eckstrom with all in favor.
Mr. Faiman stated that the applicants would be receiving a notice of denial shortly. He further informed the applicants that the Wilton Planning Board has posted notices for beginning discussion on an amendment to the ordinance to create an overlay district for cellular communication towers beginning at their 6/18/97 meeting. He urged the applicants to attend and participate in the discussions.
Case#6/11/97-2 E&T'S UNITED VENTURE/L.A. LIMOUSINE
L.A. Limousine (applicant) and E&T's United Venture (owner), Lot-027 223 Gibbons Hwy in the Residential District, requested a variance from Section 5.1 of the Wilton Zoning Ordinance to permit the rental of motor vehicles and transportation services and light vehicle repair. They have also applied for a variance to section 15.2 to allow for a larger sign.
The applicants agreed to go ahead with their hearing with a four-member board. Owner Christine Benson asked the board for a change of use variance (Sec. 5. 1) from an auto repair shop to a limousine rental service with office and vehicle storage space. The only repairs would be very light, such as changing a battery. There will be no Oil changes. She then read the five criteria to grant a variance from section 5. 1.
Ms. Benson then discussed the variance request from section 15.2. They would like to put up a 4'4" X 4'8" sign, 20' back from the road. Since this property is in the residential district, only a 4' square sign is allowed. She then read the five criteria to grant this variance. She stated that 95% of their rental services are done over the phone. Occasionally someone will come to view a limousine or put down a deposit. They offer only door-to-door service. Employees will park their cars on the side of the building. Their goal is to renovate the garage by adding overhead garage doors in the back so some or all of their vehicles can be parked inside. They now have four limousines and two town cars. They would like to be able to park some of the limousines in front of the building as advertising. They plan to paint the building and do some landscaping.
Abutter Peg Landry wanted to know what the hearing notice meant by "vehicle rental".
Ms. Benson stated that she meant that sometimes L.A. Limousine will rent 15-passenger
vans from another agency, but their drivers still pick-up and drop-off the passengers. The
public will not be coming to them to rent cars.
Ms. Landry also wanted to know how big the business will get and where the sign would be
placed and what it would be like.
Ms. Benson stated that they would like to have a double-sided, internally-lit plastic sign.
They would be willing to put it on a timer so it would go off at 10 p.m. or so if desired. She also stated that it would be on the side of the property farthest from Ms. Landry's. As to the size of the business, Ms. Benson stated that they may be able to add one more car, but that would be all that could fit on that site. Any larger, and they would have to move to another location.
Planning Board chair, Dick Rockwood suggested that the zoning board could limit the number of limo's parked out front, could ask the employees to park on the side or back of the building and could regulate the dimensions and how or If the sign is lit as well as the hours that it is lit.
Mr. Faiman pointed out that in section 188.8.131.52, sign ordinance for commercial and industrial districts states that the lighting shall be arranged to avoid glare or reflection onto any residential premises. In other words, if the light of your sign is bothering your neighbors, then it's not being properly illuminated to begin with. And since what we're doing with this lot is trying to find a balance between an awkward lot that's not suitable for residential use, sandwiched into a residential neighborhood, there are tradeoffs both ways.
The board discussed a motion to approve. Ms. Eckstrom pointed out, with regard to the sign, the internally -lit plastic sign that the applicant is seeking is prohibited in the residential district. While discussing allowing this type of sign but limiting the hours of illumination, Ms. Eckstrom stated that she felt the time limitation to be overly restrictive but said she would go along with it.
MOTION: Mr. Spear moved to approve the variances as submitted in the application with the following conditions:
1. Parking in front of the bldg. limited to four limousines.
2. Employee parking limited to side and back of bldg,
3. No customer vehicle drop-off or pick-up.
4. Vehicle repairs limited to light repairs; no body work, no engine repairs,
no oil changes.
5. Sign illumination is restricted to three 30-watt fluorescent tubes, sign is not
to be illuminated between the hours of 10:30 p.m. and sunrise.
6. Operation outside of normal business hours is restricted to drivers dropping
off and picking up vehicles in a fashion as to not be obtrusive to neighbors.
Ms. Roberts seconded the motion, with all in favor.
Mr. Faiman stated that the applicants will receive a letter of approval shortly. He also stated that the selectmen, any party to the action or proceeding, 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 Tuesday, July 1, 1997 and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:22)
FINDINGS OF FACT - Section 5.1
1. Why will your proposed use not diminish the values of surrounding properties? The change of use is not much different than past use of the property.
2. Why would granting the variance be in the public interest? It would keep the building from being vacant and would house an established transportation service.
3. Why would denial of the variance result in unnecessary hardship? This property has no use *other than commercial or industrial, based on the construction style of the building.
4. Why would granting the variance do substantial justice? It would allow reasonable use of the land and building. The building was constructed for commercial use originally.
5. Why is the proposed use consistent with the spirit of the Zoning Ordinance? This business would provide adequate provision of public utilities and other public requirements without being an eyesore or disrupting the neighborhood.
FINDINGS OF FACT - Section 15.2
1. Why will your proposed use not diminish the values of surrounding properties? The proposed sign is made by a professional sign co. and is tastefully designed.
2. Why would granting the variance be in the public interest? In an effort to induce traffic safety when entering and exiting, a sign will provide identification and will assist in slowing traffic prior to entering.
3. Why would denial of the variance result in unnecessary hardship? A sign smaller than the one proposed would not be sufficient to advertise this business service to the volume of traffic on this busy roadway.
4. Why would granting the variance do substantial Justice? It would allow this business to advertise it's service to a large volume of traffic and help increase sales.
5. Why is the proposed use consistent with the spirit of the Zoning Ordinance? The sign proposed is similar to other signs displayed nearby and won't be either an eyesore or disruptive to the neighborhood.
John G. Barnes, Lot F-012, NH Route 101, in the Industrial District has made the following applications to allow the subdivision and development of a proposed lot F-12-1 from the existing Lot F-012: ( 1.) a special exception under the terms of section 11.4 (a) of the Wilton Zoning Ordinance, to permit a driveway crossing through a wetland area; (2.) a variance to the terms of section 4.2.1 (c) of the Wilton Zoning Ordinance to permit the placement of a
septic system, located in highly permeable soils, less than 125' from a wetland; and (3.) a variance to the terms of section 8.2.8 of the Wilton Zoning Ordinance, to allow a lot in the industrial district to access NH Route 101 directly, rather than by an available side road.
Mr. Barnes agreed to have his case heard by a four-member board. Samuel Proctor, who is marketing the property for Mr. Barnes, represented him and explained that lot F-012 is an 80-acre parcel and that Mr. Barnes wants to subdivide one five-acre parcel (F-012-1) from the larger piece. He further stated that the variance to 8.2.8 is no longer needed. He then introduced Matt Peterson with T.F. Moran. Mr. Peterson explained that the NH DOT did not want them to make a second curb cut, asked them to change their access to NH Route 101 on their plans and so they could not proceed with the variance to 8.2.8. He handed out plans to the board and explained that the septic design and road crossing are for an office development.
Regarding the 125' septic setback from wetland requirement, Mr. Peterson stated that there is no where else to put the septic system. The plan calls for it to be located 100' from the wetland, 25' short of the Town's requirement. He pointed out that the State's requirement is 50'. He stated that the system for this office is a 300 gallon-a-day system, about half the size of a typical family home septic system. Approximately 15 employees will be using the light manufacturing office. He then read the five criteria for the variance.
Mr. Faiman asked, in relation to the special exception wetland crossing, how much wetland will be impacted. Mr. Peterson answered that it is an area of 2,890 square feet. The driveway width is 24' because the state requires it.
Back to the septic variance, Mr. Spear asked if the septic system was a special design to be used near wetland areas. Mr. Peterson answered that it was a state-approved design specifically for areas near wetlands.
In playing devil's advocate, Mr. Faiman pointed out that if you look at the five-acre piece by itself, the hardships are pretty clear for the requested variance and special exception. However, you could also point out that separating this piece off from the larger lot is at this point a proposal. In fact, what we have is an 80-acre lot of which this is a five-acre piece. And if you look at the lot as a whole, one might say that the applicant should just sacrifice these five acres because of the wetlands and it's inaccessibility, or the applicant could come in through the northeast corner in order not to disturb the wetlands in these five acres. So in a sense, the hardship is being created by the decision to cut off this chunk of the 80 acres which has a hardship.
Mr. Peterson stated that the wetlands would be disturbed for a crossing no matter how they entered the property. In answer to a question, Mr. Peterson stated that the office would be serviced by a well. Mr. Proctor added that the owner has agreed to tic in with Town water and sewer within five years of when it is brought there.
Mr. Faiman stated that his reaction is that we have an industrial district in this town and it's turned out to be hard enough for anyone to actually take advantage of that. It seems clear that you can't use an industrial lot in this town without at least one variance so this seems to be pretty consistent with what we're trying to do.
Mr. Faiman noted that a decision on the wetlands crossing special exception cannot be rendered this evening, it, will have to wait for the July meeting. This is because this particular special exception requires two consecutive meetings.
The wetlands crossing special exception was continued to July 9, 1997.
Mr. Faiman will contact the county extension office/soil conservation to get their opinion on the crossing.
MOTION: Ms. Eckstrom. moved to grant the variance to section 4.2.1 (c) as submitted, seconded by Ms. Roberts with all in favor.
FINDINGS OF FACT: (see attached)
MINUTES - April 23,1997
MOTION: Mr. Spear moved to accept the 4/23/97 minutes as written, seconded by Ms. Roberts with all in favor.
A motion was made and seconded to adjourn the meeting. All were in favor and the meeting was adjourned at 10 p.m.
Diane Nilsson, Clerk
Application to the ZBA, Proposed Lot F-12-1 - John G. Barnes
27 May 1997
Variance #1- 4.2. 1.c. 1 - 125 foot Septic/Wetland Setback
1. The proposed use will not diminish the values of surrounding properties In fact, the use will increase surrounding property values, and meets with the Town master planning goals of the area. The surrounding property consists primarily of Industrial-Zoned use. 'Me proposed project will serve as the "see' to encourage additional responsible industrial development in the underutilized land areas. The value of the residentially-zoned land to the west will not be diminished by keeping the proposed septic system and related use in the proposed location as designed. Note that the septic system will only discharge bathroom wastes, which will be less or equal to waste volumes and septic loading than that of comparable or allowable uses.
2. Granting the variance will be in the public interest. Developing the property in the mariner proposed, including the septic system where proposed, will contribute positively to the Town tax base. The proposed septic system will only have bathroom discharge from a small office, with no industrial effluents. The septic system will be designed to* NHDES standards, which are written to protect the public and environmental interest.
3. Denial of the variance will result in unnecessary hardship. Developing the site with any other septic configuration than that proposed would yield the property not developable. The hardship is clearly evident, as the property boundary geometric configuration and wetland locations requires a septic as designed. The allowable areas for septic systems beyond the 125-foot setback are not sufficient to feasibly place a septic system of any design for any use. Granting the variance will enable development of the site to NBDES regulations, where not granting the variance would not enable development of the site.
4. Granting the variance will do substantial justice, Substantial justice will be done as a result of the proposed design. The property would be serviced via a sensibly- and responsibly-designed septic system at approximately 100-foot setbacks, thus permitting development to feasibly occur within the landlocked areas.
5. The proposed use is consistent with the spirit of the Zoning Ordinance, The spirit of the Ordinance is to provide safe protection of wetlands and aquifer areas. The proposed septic design provides a safe situation. Note that the proposed setbacks are 1.5 to 2.0 times the required setbacks of NHDES. No industrial wastes of any kind are proposed. In fact, flow loadings from cooking wastes will not be present to the extent they are present from residential loadings. The proposed flow quality and quantity is appropriate and consists only of office bathroom flows. The proposed setbacks nearly meet those required- Thus. the spirit of the Ordinance is clearly met.