Town of Wilton, NH

Zoning Board Minutes

August 31, 2010

Board MembersChairman Neil Faiman; members, Carol Roberts, Jim Tuttle, Joe Poisson, Alternates Joanna Eckstrom, and Eric Fowler.
  • 6/8/10-4 Marois Joint Revocable Trust
  • 8/10/10-1 Marois Joint Revocable Trust

Chairman Faiman explained that this meeting was a special meeting of the Zoning Board to hear a case continued from August 10, 2010. He suggested that the Board not review the minutes of the last meeting as they were just recently available and this is not a regular meeting.

After a polling of the Board and confirming with the applicant, the Board decided to review the minutes of August 10th at the next regular meeting.

Mr. Faiman explained that The Marois Joint Revocable Trust and Florida Tower Partners have applied for a variance to section 15.3.4 and of the Wilton Zoning Ordinance, to permit the erection of a 114 foot "monopine" personal wireless service facility (cell tower) on Lot B-39-3, 303 Curtis Farm Road, which is higher than would be permitted by the ordinance. He noted that both cases have been heard a number of times and the Board is hearing them together but will ultimately be voting on them individually.

Mr. Faiman stated that Ms. Eckstrom, Mr. Tuttle, Mr. Poisson, Ms. Roberts, and Mr. Fowler will be voting on the case and he will chairing the meeting but not voting.

Chairman Faiman explained that the first variance request is a request for relief from the basic height rules and the second request is regarding the formula which the height requirement is calculated. He also noted that at the last meeting the Board ran out of time when Mr. Weaver was in the middle of a presentation. He explained that Mr. Weaver is not available tonight but the Board and the applicant have seen the documents he submitted and have had time to review them. He also noted that the meeting will begin with presentations by abutters, allow applicant rebuttal if necessary, and then abutter rebuttal if necessary.

In response to a question from Ms. Eckstrom, Mr. Faiman stated that he sent notices to Milford, Brookline, Mason, Greenville, New Ipswich, Temple, Sharon, Peterborough, Greenfield, Lyndeborough, Mont Vernon, and Amherst and he placed a public legal notice in the Milford Cabinet, the Nashua Telegraph, and the Monadnock Ledger.

Mr. Walter Pries, of Curtis Farm Road, stated that he looked at the methodology that was used to determine the average tree height of 63' and he found that the applicant did not follow the instructions per the ordinance. He stated that they should have measured in a 150' area but the applicant went out further which brought in the larger trees and had they only measured the trees they were supposed to the average height would have been 59' and if one then includes the trees measuring between 20' and 40' the average height would probably be reduced to down to 53'. He stated that the ordinance does not require co-location, only encourages it, and when they had the balloon test he could see both balloons and there may be no one else on the tower. He stated that there are other towers in the area that have only AT&T, he does not believe that this tower is a fix to the connection issues, and they will still need a significantly high tower above the tree height to solve all the issues.

In response to a question from Ms. Eckstrom, Mr. Pries stated that he used the applicant's presentation and tree map he used the mount as the center of the circle and counted the trees inside the 150' radius.

In response to a question from Cappy DeMontegney, an abutter, Mr. Faiman stated that the Board has not requested an external review of the applicant's numbers. Mr. DeMontegney stated that he would like to see an independent party give an opinion that the applicant really needs the height they are asking for.

Marilyn Ciaidelli, of Curtis Farm Road, stated that the notice has been published three times with the incorrect 11' variance request. She also noted that with 4' appendages the tower would actually be 118' tall.

Mr. DeMontegney stated that the Board's decision should include some restriction on the height above the tree line not just on the tower height so that the applicant can not change the height once they begin construction.

Mr. Springer explained that the initial tree survey produced an average tree height of 63' but due to their error they did not measure the correct trees, but they re-measured the trees in a strict 150' radius and found the average tree height to be 36'. He stated that they have not increased the top of the tower during the proceeding; the only additional portion is the fake tree cap which is not a part of the monopole. Mr. Springer then apologized stating that his team re-measured the trees in Greenville. The survey in Greenville produced a 63' average tree height and when they re-measured the trees including the 20' to 40' trees the average tree height was 36'.

Sally Brown, who lives in Lyndeborough 1/4 of a mile from the site, stated that the people voted in an ordinance for cell towers and they also voted in the Board Members, and she is concerned about setting precedence.

Mike Campbell, of Curtis Farm Road, stated that if one includes the 20' to 40' trees the proposed tower height would be double the allowed height. He stated that he moved here to preserve the land and the proposed height seems excessive. He also noted that he saw both balloons when they were flown.

Ms. Ciaidelli stated that she would like to hear Mr. Weaver's comments.

Mr. Tuttle noted that it seemed like the beginning of his presentation was mostly pertinent to the Planning Board and not to the additional height that the Zoning Board is currently considering.

Mr. Faiman stated that Mr. Weaver asserts that the usage is in violation of the terms of the easement and that the use of the easement will diminish the value of the property over which the easement passes by increasing the value of the easement. Mr. Faiman stated that Mr. Weaver also asserts that the application does not meet the unnecessary hardship standards and the ordinance established a rule to make the towers blend into all the trees and not just the higher trees. Mr. Faiman also stated that Mr. Weaver believes that relieving the requirement would go against the ordinance and that the Londonderry vs. Daniels case was about whether the use was a permitted use which does not apply to this case. Lastly Mr. Faiman stated that Mr. Weaver states that the second variance request is not a request for a relief from the restriction but relief from having to determine what the restriction is.

Mr. DeMontegney stated that instead of allowing the applicant a certain tower height he thinks the Board should be able to know exactly how high above the tree line the tower will be.

In response to a question from Ms. Ciaidelli, Mr. Faiman stated that Board as a whole has not done a site walk and Ms. Eckstrom noted that she has driven by the site.

In response to a question from Ken Stickney, of Curtis Farm Road, Mr. Faiman explained that it is the practice of town Boards to make a clear separation between private and public matters and while the zoning issues are public the easement is a private matter and not something that the Board has the expertise to determine nor is an issue they are going to get involved in.

In response to a question from Mr. DeMontegney, Mr. Faiman stated that the Board has had the opportunity to view the balloon test which is a good indication of the height above the trees.

Mr. Springer stated that the easement issue is a private matter and if any Board has jurisdiction over it it would be the Planning Board and granting the variance does not mean the Board has to act a certain way in the future on other cases. He stated that Mr. Weaver's examples of diminishing values are tax abatement cases regarding taxing two lots for the same easement.

Mr. Springer also responded to the letter written previously that complained that the comparables were not current, by explaining that he does not have the ability to provide current comparables because no towers have been approved recently. He further explained that adding the 20' to 40' trees is going to change the average tree height but will not change the tree canopy height with trees that are 80' to 90'. He stated that the cell tower is a permitted use and they are looking for a variance on the permitted height above the tree line and a relaxed methodology.

In response to a question from Mr. Fowler regarding PCS over cable, Mr. Springer explained that that technology, where they put boxes on telephone poles, creates a footprint of coverage that is very limited. He also explained that PCS works in very flat areas without a lot of "clutter" like trees, houses, and hills. Lastly he noted that there are ownership issues because AT&T does not own the poles.

Kevin, AT&T's Radio Frequency Engineer, explained that often the PCS boxes get pushed down below the leaves of the trees and can then only propagate to the nearest house. He explained that they have used the technology on thruways or for really densely populated areas where they can serve a lot of people in a short amount of space. He stated that it would be very challenging to try to accomplish that in most of New Hampshire.

In response to a question from Ms. Eckstrom, Kevin explained that at 1900 MHz the signal gets absorbed by pine needles and clutter and placing the tower lower would not serve anybody.

In response to another question from Ms. Eckstrom, Kevin stated that generally towers can propagate three miles but at 1900 MHz that distance gets cut in half so on average they are looking for a site every two to three miles rather than every three to four miles. He further explained that in New Hampshire AT&T gets pushed to the bottom of the towers so they have towers closer than they would like and in the future they are likely looking to the west border of town for another tower location.

In response to a question from Ms. Eckstrom, Kevin stated that they had four candidates that are explained in the report.

In response to a question from Ms. Eckstrom, Mr. Springer explained that at this point there have not been any discussions with any public utilities but theoretically there is room for them on the tower.

In response to a question from Mr. Tuttle, Kevin explained that, ideally, they try to make sure that the signal can be handed off from one tower to another. He stated that this tower can make that happen with connections from the existing towers although he noted that there will still be some gaps on 101 towards the west.

In response to a question from Mr. DeMontgney, Kevin explained that for an effective site the tower needs to be above the tree line and Mr. Faiman noted that the ordinance requests a tower high enough to be able to co-locate above the tree line.

Mr. Pries stated that AT&T will still have connection issues in Wilton Center, and on portions of Route 101 and 31N towards Lyndeborough but those areas could covered with a tower to the west where the average terrain height is 400? higher than here in town. He suggested that looking towards the west now would take care of those areas and the area this tower is supposed to cover.

Ms. Eckstrom addressed the concern about the validity of the documentation that has been presented by noting that every single one of the items presented has come from a registered engineering firm and she is satisfied with the documents.

Mr. Pries explained that if the trees in the original diagram are shown in scale then only 170 trees, not 370, should have been counted which would make the average tree height 59'.

Mrs. Pries questioned if AT&T had looked at other sites that were not in the middle of a nice neighborhood.

In response to a question from Ms. Eckstrom, Mr. Faiman explained that the ordinance allows for 20? above the average tree height where the average tree height is determined by a certain formula.

Ms. Eckstrom confirmed that the Board is being asked to allow AT&T to have a tower that is 116' high which is above what the ordinance allows as there is a permitted height at which the applicant would not need to come to the Board.

In response to a comment from Ms. Ciaidelli that she has never seen an ad for a home that says "within close proximity of a cell tower", Mr. Springer noted that ads also don't say "within close proximity of neighbors" and that not everything that is not in an ad devalues a house.

In response to a question from Mr. Tuttle as to who saw the balloon test from their Curtis Farm Road property, Mr. Campbell stated that he saw the balloon from his property, Mr. Pries stated that he could not see the balloon due to a few trees that could be brought down by the next ice storm, and Ms. Ciaidelli stated that she could not see the balloon from her yard but when the leaves are gone she can see the ridge that the balloons appeared above.

Mr. Faiman summarized the case and the important facts presented so far and Ms.

Eckstrom read the minutes regarding the balloon test.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Tuttle to close the public hearing.

Voting: 5 ayes; motion carried unanimously.

Ms. Eckstrom stated that she agrees that the applicant has stated that they need the tower to be 116? high and no matter how the applicant calculates the average tree height they still need the tower to be that high.

Ms. Roberts noted that the spirit of the ordinance is to allow cell towers.

Ms. Eckstrom stated that she feels that the applicant has shown that he needs 116' in order to co-locate, which is encouraged by the ordinance.

Mr. Faiman stated that the applicant has done a good job showing how the ordinance is possibly not appropriate but the definition of hardship is that when you apply the ordinance it creates a hardship on a particular property.

Mr. Fowler noted that this hardship is unique to property in Wilton but not necessarily to this lot.

Ms. Eckstrom stated that the applicant could put the tower on Carnival Hill where there are no trees and it would be far more intrusive, or it can be in hidden in trees.

A MOTION was made by Ms. Eckstrom and SECONDED by Ms. Roberts to re-open the hearing to ask about relative elevations on the property.

Voting: 5 ayes; motion carried unanimously.

In response to the question regarding elevations, the owner of the property stated that the property continues on an upward slope and the elevation at the property line is 25? than at the tower site; the tower will not be placed at the highest point.

A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Tuttle to re-close the public hearing.

Voting: 5 ayes; motion carried unanimously.

The Board discussed that this location and height where chosen specifically for co-locating and placing the tower.

The Board reviewed the application criteria.

A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Fowler to allow the applicant to construct a cell tower at the proposed site not to exceed 116', including the cap, which will allow AT&T and the co-location of three other companies.

Voting: 5 ayes; motion carried unanimously.

A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Tuttle to find that the Board does not need to come to a decision on the 2nd variance request to not measure the trees between 20' and 40' in height.

Voting: 5 ayes; motion carried unanimously.

A MOTION was made by Mr. Tuttle and SECONDED by Mr. Fowler to adjourn the meeting.

Voting: 5 ayes; motion carried unanimously.

Chairman Faiman declared the meeting adjourned at 9:30 p.m.

Respectfully Submitted,
Heather Loewy Nichols
Wilton ZBA
Draft Minutes Revision 1