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ZONING BOARD OF ADJUSTMENT November 10th, 2010
Members Present: Dave Carney, Ken Chester, Hunt Dowse, Linda Renna, Alison Rossiter, and Linda Coughlan, Secretary
Others Attending: Rick Voci, Kevin Delaney and John Champ from Industrial Tower and Wireless, Phil Mathewson and Steve Froling, Planning Board
7:00 P.M. – Alison Rossiter opened the business portion of the meeting. The Board voted unanimously to approve the minutes of the May 12th meeting. Alison noted there was a notice for the Annual Fall Planning & Zoning Conference taking place on November 13th and a brochure on LGC's Annual Conference on November 17th - 19th for anyone interested in attending either of these events. The Board briefly discussed screening on the PSNH site on Forest Road. Linda Renna said the large pines had been removed that were to be part of the natural screening on the site. Alison said the screening had been part of the original decision but PSNH had determined that the trees posed a hazard as they began the site work. She added that this would fall under the purview of the Select Board.
7:15 P.M.– Industrial Tower & Wireless for Mathewson Properties, LLC Alison called the hearing to order and read the hearing notice. She introduced the Board members and noted the fees had been paid; the notice had been sent to abutters, published and posted as required. Alison explained the procedures that would be followed for the hearing beginning with the applicant's testimony. She asked if there were any questions from the Board or the public concerning the procedure and there were none.
Applicant's Testimony: Rick Voci from Industrial Tower & Wireless came forward to begin testimony regarding the application for the Special Exception under Article 15.6.12. It was noted that copies of the application and the plan were provided to the board members. Rick said they had been several times to the Planning Board for an application for a cell tower to be located on the Mathewson property. He said that application had been approved. Rick said they after the approval for the cell tower, they had applied to the Planning Board for a subdivision to take out 5.789 acres from the 26.51 acre parcel for the cell tower site. He said it was determined that the proposed lot would only have frontage on Rt. 202. Since 202 is a limited highway, that frontage could not be considered to meet the 350 foot frontage requirement. Rick noted the 50 foot ROW as proposed on the plan and said using this would give them the required frontage. He said the site would be an unmanned facility with no well or septic system. He added the utilities would be underground running from the existing poles. Rick said there would be no utilities on the ROW.
Alison asked the Board if they had any questions or comments on the testimony. She asked if the subdivision had been approved yet. Rick said no, it had not. The subdivision hearing had been continued to November 17th pending ZBA approval of the ROW. He noted that Steve Froling, the PB chair was in attendance for tonight's hearing. At this point Steve Froling mentioned that in connection with the driveway to the site, both Fire Chief Nevan Cassidy and Public Works Director Kurt Grassett had been consulted and approved the driveway configuration. Rick referenced #8 on the plan which stated that the proposed subdivided lot will only be utilized for a personal wireless service facility and any other use would require obtaining additional approval from the Town of Hancock Planning Board. He went on to say that #9 on the plan stated that the Town of Hancock shall have no responsibility to maintain the ROW nor any liability for damages from the use.
Dave Carney asked if the board was looking at the ROW under 15.6.12 only and not considering the issue of the cell tower itself. Hunt said they would only be considering the ROW under 15.6.12 specifically and the general conditions under 15.5 and to determine access and frontage under these articles.
Linda Renna asked Steve Froling if the Planning Board had done anything about the possibility of abandonment of the cell tower. Steve said yes, that was covered in the regulations governing cell towers. He said the regulations require a bond to cover the cost of abandonment issues.
Hunt asked Steve specifically what stage the Planning Board is at right now. Steve said there have been two applications, the permit to erect the tower which has been approved. He said there has been a preliminary subdivision application which has been continued pending the ZBA's approval of the ROW. Froling said if they get approval for the ROW, the applicants will come back next week for the continued subdivision hearing. It was noted for the record that Steve had shared the status of the subdivision with Alison and Linda who had attended that hearing.
The Board moved on to review the Applicant's responses to 15.5 Special Exceptions – General Conditions.
1. The proposed use is similar to one or more of the uses already authorized in the District. The proposed Right of Way is similar to a previously approved Right of Way for a Backlot at Brimstone Corner Road. This Right of Way provides frontage and access to Map R15, Lot 22, owned by Glenda Lewis and recorded in the Hillsborough Registry of Deeds as Plan #35063. Hunt commented that this was one of many ROW's to backlots that had been approved in town.
2. The specific site is an appropriate location for the proposed use; The proposed site at 160 Norway Hill Road is located in a densely wooded area of an excavation yard with an established driveway. No current land uses will be disturbed by the installation. The tower and accessory facilities will not adversely affect any natural terrain. The Board had no comments or questions except for Dave Carney asking if any wetlands would be disturbed in the ROW. After reviewing the plan, it was determined what Dave thought was an indication of wetlands, was in fact not.
3. The proposed use would not adversely affect property values of neighboring properties. In compliance with the purpose of Telecommunications Facilities Regulations, the proposed facility will not be detrimental to the use of, or out of character with, the adjacent surroundings and use. It was noted that there had been no response from any of the abutters and that there were no abutters present for the hearing.
4. The proposed use and the associated plans for parking, access and egress would not create a nuisance or serious hazard to pedestrian or vehicular traffic or excessive traffic congestion nor create excessive wear and tear on public Streets: The proposed facility will not create any undue traffic congestion nor impair pedestrian safety as this is an unmanned facility with no public access situated on a private way. ITW will have an access driveway to the proposed facility that will provide fire-fighting and emergency rescue vehicles with convenient and safe access. Steve noted that when the Planning Board had viewed the site, they had thought it was reasonable for the use. Hunt asked if there would be a fence surrounding the site and Rick said, yes there would be a chain link fence.
5. The proposed use, following installation of visual and noise screening measures by natural or structural means to the extent and in the manner as may be specifically determined by the Board, would not create a nuisance to neighboring properties by reason of noise, odors, fumes, smoke, dust, vibrations, light, sound, or electromagnetic or communications interference or the storage or dissemination of hazardous materials or otherwise be injurious, obnoxious or offensive. The proposed facility will not store any noise, odors, fumes, smoke, dust, vibrations, light, sound or interference. The proposed tower will not be illuminated per our approval from the FAA nor will the tower generate excessive noise. A question was raised concerning how much noise would be created by any generators used at the site. Rick said the noise would depend on whether the generator would be housed within the shelter or not. He said the generators used are usually the hospital grade muffler type system and there could be one for each carrier. Ken Chester asked how many carriers would there be and Rick said they had been approved for 5 carriers. Steve Froling commented that there aren't any dwellings near the site and the area is heavily wooded. Rick said the generators would only run for testing and in emergency power outage situations.
6. Adequate and appropriate facilities will be provided for the proper operation of the proposed use, including (where applicable) facilities for potable water and disposal of waste. The proposed unmanned facility does not require sewer or water services. No significant increases of storm water will runoff onto any adjacent property or streets. There were no comments or questions from the Board or public on these criteria.
7. The proposed use is consistent with the purposes and intent of the Zoning Ordinance and the Hancock Master Plan, after having given due consideration to recommendations, if any, received from the Planning Board and The purpose of the Town of Hancock's Telecommunications Facilities Regulations state that; "These regulations have been enacted in order to inform the Planning Board and other parties interested in Conditional Use Permits and Site Plan Review of any proposed Telecommunications Facility and to establish general regulations for the siting of towers and antennas and to enhance and fulfill the following goals:
Preserve the authority of the Town of Hancock to regulate and provide for reasonable opportunity for the siting of Telecommunications Facilities.
Reduce the adverse impacts such facilities may create on, including, but not limited to: migratory bird flight corridors, impacts on aesthetics, environmentally sensitive areas, historically significant locations, health and safety by injurious accidents to person and property, and diminution of property values.
Preserve unique view sheds and scenic values, in particular those associated with the Hancock Historic District".
Engineering tests have determined that all of the PCS and SMR carriers have coverage "gaps" in the Town of Hancock, particularly in the Route 202 area. ITW determined that the proposed tower would connect existing wireless facilities, closing the coverage "gaps" in the above mentioned Hancock area. The proposed facility will provide local businesses and neighborhood residents with better SMR, PCS and Cellular coverage to meet their business, personal and safety needs, especially during the summer when local traffic increases significantly. With the tens of thousands of emergency 911 calls made from mobile phones each day, the additional service is an enhancement to Public Safety. When Congress determined that wireless communication is in the public interest, the Federal Telecommunications Act of 1996 was amended to require all carriers to provide the service. Granting ITW the Special Exception to use the Right of Was as frontage will allow ITW to construct the proposed facility which would be beneficial to public interest and overall safety.
In complying with the spirit of the Town of Hancock Zoning Ordinance, ITW proposes to build a wireless telecommunications facility on a lot where the natural landscaping will conceal the tower and equipment shelters to reduce any visual impacts.
The proposed facility will not have an adverse impact upon environmentally, historically or archaeologically significant areas nor disturb any natural habitats, wildlife or vegetation. In answer to Alison's question, SMR referred to specialized mobile radio and PCS referred to personal cellular service. Dave Carney commented that a 180 foot tower didn't seem to fit in with the landscaping in the area. It was noted that it does fit in with the Telecommunications Facilities Regulations as adopted by the Planning Board.
8. The proposed use fall within and meets all of the conditions of a Special Exception hereinafter listed. The Town of Hancock conditions several criteria to approve a Special Exception for a Right of Way for New Backlots. Please see the attached Statement in Tab 4 for additional information on how ITW meets the conditions of a Special Exception under Article 15, section 6.12 - Rights of Way for New Backlots.
Alison read the applicant's responses to the criteria under Article 15.6.12.1.
15.6.12.1 Each proposed Lot resulting from the proposed Subdivision shall have access to a Street provided either directly or by a permanent Right of Way of not less than fifty feet in width. The proposed lot will have access to Norway Hill Road by a permanent fifty (50) foot Right of Way. It was noted that this criteria was demonstrated in the plan as presented.
15.6.12.2 Such Right of Way shall be located no less than 500 feet from any existing Street or other Right of Way which is recorded or which is proposed at the same time, and shall be configured so as to be suitable for future accommodation of a Street that shall meet the requirements of the Hancock Subdivision Regulations. There is no existing or proposed Right of Way within five hundred (500) feet from any existing Street or other Right of Way which is recorded. Rick noted that the layout of the ROW meets the requirements. Hunt said it stated on the plan under #8 that the use was only for a cell tower. He said the chance of this ever becoming a town road was limited and he thought these criteria had been sufficiently met. 15.6.12.3 Each proposed lot shall have frontage either on the Right of Way or on a public Street equivalent to the stated frontage requirements of the zoning district. The proposed Right of Way will provide the new backlot with the required 350 feet of frontage. Please see the Subdivision Plan in Tab 2. It was noted that the numbers on the plan add up to the 350 feet of frontage required.
15.6.12.4 Lot areas, frontages and all set back requirements for each lot resulting from the proposed subdivision shall be met without including the area of the Right of Way in the area, frontage or set back requirements for either lot. For this purpose, all set back dimensions shall apply with reference both to the proposed Right of Way and any Street abutting the Lot. The lot areas, frontages and all set back requirements for each lot resulting from the proposed subdivision will be met without including the area of the Right of Way in the area, frontage or set back requirements for either lot. Hunt said the factual information as presented on the plan indicate the acreage and setbacks were OK.
15.6.12.5 No more than one Lot shall be served by one Right of Way. The ZBA shall not grant Special Exceptions involving a series of subdivisions that would provide Right of Way access to more than a single lot. The Right of Way will only serve the proposed lot. Dave said it seems that this ROW of way will serve two lots, the proposed subdivided lot and Mathewson's existing lot. Hunt said the frontage for the Mathweson's property is off of Norway Hill road. Steve said the PB allows a shared driveway for residential use. In this case, he said the only traffic movement will occur two or three times a month. He said this wouldn't be allowed for two houses, but this is a commercial use. Dave asked why it should be any different for a commercial use than it was for residential use. Hunt said they have to consider what the public purpose is. He said the limited traffic use seems to be perfectly adequate in keeping with public purpose. Ken Chester said it's a unique situation and if the use changed, they would have to come back for approval. Hunt said it doesn't make sense to have 2 driveway cuts.
15.6.12.6 The owner of each proposed Lot (that is, the existing backlot and the abutting Lot across which the Right of Way runs) shall have consented in writing to the following waiver and condition subsequent pursuant to NH RSA 674:41:
15.6.12.6.1 Waiver: "The Town of Hancock shall have no responsibility to maintain said right of way or any liability for any damages resulting from the use thereof."
15.6.12.6.2 Condition subsequent: Prior to the issuance of a building permit for any Lot served by said Right of Way, the applicant shall produce evidence that notice of the limits of municipal responsibility and liability has been recorded in the Hillsborough County Registry of Deeds. Please see the attached waiver in Tab 5. ITW will record the waiver in the Hillsborough County Registry of Deeds prior to issuance of the building permit. The Board noted that these two criteria were covered on the plan as #8 and #9 and it would be a condition that the attached waiver in Tab 5 is to be recorded at the Hillsborough Registry of Deeds prior to issuance of the building permit.
Alison asked the Board if they had any further questions or comments. There were none and the hearing was opened to the Public. There were no comments or questions from the public and Alison asked the board if they had anything to add.
Dave asked what the road surface for the ROW would be. Rick said it would probably reclaimed asphalt for twenty feet and then gravel to the site. Hunt asked the size of the tower site and Rick said it was 75 ft x 80 ft. He said the site itself would be crushed stone. Hunt asked how far down the base of the tower would go. Rick said it would be 6 to 8 feet down with the foundation 4 - 6 feet in depth.
Alison closed the public portion of the hearing and the board moved into the deliberation phase. Hunt said he thought there was a need for the cell tower, there would not be much of a visual impact and it seemed to be a good place for it. It was noted that when the balloon test had been conducted, it had not had much of a visible impact.
Alison asked the Board if they had any other questions or comments. They did not and she asked if they were ready for the vote which they said they were. Linda moved that the application for a Special Exception under Article 15.6.12 Rights of Ways for New Backlots be granted given that the applicant has met all of the criteria under Article 15.6.12 and all of the conditions under Article 15.5 Special Exceptions - General Conditions as shown by the plan and testimony provided. Decision conditional upon 15.6.12.6.2 re: recording. Hunt seconded the motion and the vote was 4 YES to 1 NO in favor of granting the application.
Alison advised the applicants of the 30 day appeal period.
The meeting adjourned at 8:10 P.M.
Respectfully submitted,
Linda Coughlan Recording Secretary
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