APPROVED
Zoning Board of Adjustment
Meeting Minutes
October 14, 2008
Members Present: Jane Roberts, Gretchen Wittenborg, Jack Ernst, Cathy Davis and Steve Filipi. Mike Methe recused himself and Carmen Yon is the Selectmen’s representative for this meeting,
Meeting was called to order at 7:00 PM
7:00 PM Case # 08-08: Brian Foucher, WiValley, and the Fitzwilliam Forum Technology Committee application for a use variance to construct a wireless transmitter to provide high speed wireless broadband service to Fitzwilliam residents outside the Wireless Communications Facilities Overlay District on property located on Upper Troy Road, Map 15, Lot 6-3, Rural District.
Steve Filipi recused himself as a party to the WiValley case, leaving a four member Board for the hearing. Vice chairman Wittenborg chaired the meeting for this case, at the request of chairman Roberts. Wittenborg read the case, noting that public notice in the Keene Sentinel was made on October 1, 2008 and certified letters were sent to abutters on September 29, 2008. Wittenborg referred the applicant to RSA 674:33, advising the applicant that if they choose to proceed with the hearing before a three or four member Board, it will not be grounds for a rehearing in the event the application is denied.
Wittenborg corrected an impression some may have that this was the third and final hearing on this case. She clarified that this is the first hearing on this case before the ZBA, and that the issues the Board will consider are completely different thaN those considered by the Planning Board in their hearing. She noted the ZBA had read the Planning Board minutes and the application for the use variance. She outlined the procedure to be followed by the Board in their hearing, saying the applicant will make a presentation and the Board will ask questions, followed by alternating questions from supporters and those in opposition. Questions for the applicant or other members of the public should be directed to the chair. She asked anyone who speaks to state their name and identify if they are a
party to the case.
The chair will provide a summary of the case and give opportunity for corrections before the public hearing is closed for deliberation and decision making.
Mr. Talbert, member of the Community Forum Technology Group, introduced other members of the group and the applicant and gave some background on how the group was formed. The topic of acquiring broadband high speed internet service for Fitzwilliam was the second highest vote getting proposal at the Community Forum. Additionally, eight of ten residents responding to the town wide survey in November 2007, said they strongly favor (70%) or somewhat favor (13%) high speed internet service.
Talbert said residents are concerned about high speed internet service because they rely on the internet to conduct their business, personal and professional, emphasizing that this service is not just for entertainment. Residents rely on the internet for news, weather, banking, communications, research, and shopping; teachers rely on it for research and teaching aids; individuals use the internet to participate in faith based activities, interest groups and hobbies. He said businesses cannot operate in the modern business environment without high speed internet.
The Technology Group looked into various ways to get high speed internet, there being none in Fitzwilliam, except on the Troy border. They researched telephone based service which they found not to be economically viable in Fitzwilliam. They investigated cable and found limited service available since the town is so geographically spread out. Satellite service has its own reception problems. They came to the conclusion that long distance wireless service was the best solution. They interviewed several providers and were not impressed. They talked with Verizon and Fairpoint after the take over. Fairpoint said they were committed to providing the service but could not say when. The Group heard about WiValley and invited them to come in to see if they could provide service in
Fitzwilliam.
He said Mr. Foucher brought topo maps that illustrated how far a line of sight signal can go in Fitzwilliam. Using software he was able to pinpoint the best sites for a tower that could reach the most people in town. Ultimately, at least two towers will be needed to reach the majority of the town. Signals do not go through granite or heavy forest cover. He described the tower needed as similar to a ham radio antenna - it is not a heavy industrial infrastructure. Mr. Foucher and the Group conducted a preliminary test using the town hall tower and got a signal faster than DSL from a WiValley tower on Pack Monadnock. However, the steeple reaches only a limited number of people and the goal of the Group is to reach as many people as possible in the town. This technology did not exist
when the WCFOD was passed in town in 2000. The Group wants full support of the town, and has already met with the Selectmen and the Planning Board.
Brian Foucher said he is local, from Harrisville. He’s worked with Toshiba and only recently left his job to devote full time to WiValley. Working with a technology group in Keene, they tried to find a service provider, but to get service from a land based line service; one has to be within 18,000 feet of the base. He decided to form WiValley to provide wireless service to rural areas.
He wants to respect local regulations but feels that given the FCC regulations regarding wireless information service and a recent NH Supreme Court decision allow local land use boards to site this kind of tower most effectively. His plan for the broadest coverage includes a 79 foot tower that reaches 30 feet above the local tree canopy, with an eight foot antenna on top. Because the tower needs to reach about the tree canopy and trees grow, he feels the initial tower should be that tall, so it won’t have to be replaced soon. He doesn’t believe bigger is better. He is interested in connecting rural communities by deploying equipment in a way that has a low impact on the environment. He expressed his willingness to work with the community to reach a compromise if the community feels his proposals don’t meet their needs. The tower is an isosceles triangle, two feet per side at ground level. At the very top, 6 radio transmitters will be deployed, with 6 dish receivers below that,
and with two 2-foot rectangular panels deployed below that, building in redundancy for reliability.
Susan Massin, town librarian and a member of the Technology Group, said she had never seen a service more wanted and needed in town. She joined the Group because she finally felt she must do something to bring high speed internet service to town. Hundreds of people signed petitions requesting the service. Fairpoint’s best scenario was to reach people within a 3 mile radius of their base here in the center of town. The test conducted using the town hall steeple reached more people but still fell short of providing the broadest coverage possible on the pinnacle site.
Carmen Yon, Selectmen’s representative for this hearing, made a statement from the Selectmen in support of providing high speed internet for the town. The statement is attached as part of these minutes. They feel the Wireless Communications Facilities Overlay District Ordinance passed in 2000 did not take into consideration this wireless technology. They understand WiValley can only deploy outside the overlay district. They said the town wants to work out solutions that benefit the town. The Selectmen issue building permits and enforce the town codes but have no authority over the ZBA. They also made it clear to WiValley that the town does not have funds available to support the project.
The public was invited to comment on the case. Jeff Poston, Brigham Hill Road, said he’s been following the work in Vermont and northern NH to bring fiber optics to their rural communities. He said the reality is that it takes a long time and funding must be secured – a process that has taken 2-3 years for these communities. He strongly supports the WiValley plan, noting it ‘plays well’ with satellite signals. It is cost effective for the town now, and costs less than bringing fiber optic cable to every house. It will rollout faster than any cable network.
Steve Reinhart, Jaffrey Road, said he relies 100% on the internet to conduct his business as an education consultant. He said this is the internet age and we need a level playing field for our kids. The future of our kids is codependent on how fast their internet connection is. He said his brother is a Vice President with a large real estate company and he says home values increase with high speed internet availability, likening buying a house without internet service to buying one without electricity. Mr. Reinhart supports this project, saying now is the time to act.
Karen Craig, Upper Troy Road, told the Board her family has cable, but it’s not that reliable or fast. As Principal of Emerson School, she and her teachers rely on applications that are web-based, like Study Island which kids can access from home; applications that target specific skills using video streaming can’t be accessed with dial up service. She supports this project in any way she can.
Dave Kenney, Route 12 South, agrees with all of the above, telling of his experience in the military and information technology for more than 31 years. He related horror stories about Hughes Satellite network tech support services. Weather affects satellite service; customers must own the equipment and the relative speeds are not what were promised. He said he supports the WiValley plan, adding the town needs alternatives to what’s currently available.
Wittenborg said the Board needs propagation and coverage studies, wondering how coverage is affected if the tower height is adjusted down. Would the town need more antennas to reach more people? If so, how many more.
Mr. Foucher said the early studies indicate the pinnacle as the best place to provide general coverage for the town. Signals need to get over the peaks, and he originally estimated that three towers would be needed, but using software, the topographical map of the town and 911 address data base, he created coverage maps and now perhaps two towers would provide coverage. He said he just left full time employment with Toshiba to work on the WiValley business, which is growing. Together he and his colleagues have more than 50 years experience with wireless technology. He said he is not in the tower building business, adding the height of the tower does affect service.
Cathy Davis asked if it was going to be economically feasible for him to construct one or two more towers to provide that extra coverage. Mr. Foucher said WiValley was expecting to invest in 2-3 towers in Fitzwilliam, but coverage could be boosted with two other towers that either are or will be completed soon – one in Warwick, MA and one on Pack Monadnock. He added that some people in Fitzwilliam could be connected now using those towers.
Wittenborg said there are some spots with higher elevations within the WCFOD, asking if he had looked at those. He said no, his service could not cover town if it was limited to siting towers in the WCFOD. Investing in the towers in the WCFOD was not an investment they want to make.
Morris Nirenberg, Howeville Road, asked about line of sight. Mr. Foucher said a visual line of sight was not necessary, but an electromagnetic one was. Granite boulders interfere with the signal as does heavy forested cover. They can broadcast through the treetops but not through large biomass.
Carol Beckwith, Upper Troy Road, thanked the Technology Group for their work, adding she wanted to encourage them to continue. She recalled the Verizon experience, and said high speed internet affects her business.
Lee Parsons, owner of a computer repair business at the Crossroads , which gets a lot of out of town foot traffic, said that hundreds of people who are interested in moving here have asked him about high speed internet service in town. He said DSL is old technology and high speed internet impacts parents, potential residents and is more accessible and important to the town.
Cathy Talbert, speaking as a library trustee, said their meetings deal almost exclusively with technology issues because downloading, which is an important part of the library experience, is nearly impossible using current internet connections. If service goes down, which it does periodically, the library may have to close the doors. To even check out a book requires reliable service.
Joan Knight, West Lake Road, believes the first tower will provide serve to many households. She praised the Group for all their hard work, adding that now is the opportunity to move on this project.
Coni Porter, Sunset Road, a small business owner, said she works and teaches in Boston and has a lot of trouble with downloading big files. She said the system she has to jury rig is embarrassingly inadequate. She feels a variance granted for the greater good outweighs all other concerns, adding the tower is low impact and is not lighted.
Mr. Foucher said that the receiver on a customer’s house could be one of three sizes to increase reception for some outlying sites.
Susan Silverman, East Lake Road, agreed with all the reasons for supporting high speed internet service. She wondered what the process would be to grant variances for the next one or two towers that may be needed. Will a use variance for each of them be needed? She also asked about WiValley’s ability to change with the changing technology.
Mr. Foucher said that while they are a small new company without a big bankroll, they feel they are building a relationship with every community they work with and they feel they have an obligation to change out technology as the next generation is available. Homeowners do not own the wireless receiver equipment on their homes.
In response to a question from Carmen Yon, Mr. Foucher said the FCC has ruled that a town may not prohibit receiving equipment on houses, except they may regulate placement in historic districts. If the municipality requires that the installation be moved in an historic district the town bears the cost. Additionally, the FCC ruled that providing wireless service in rural communities is so important that they now define wireless service as an ‘information service’ not a telecommunication service to limit regulatory liability.
Wittenborg asked if anyone cared to speak in opposition. Mr. Methe, Upper Troy Road, is opposed to the process, not to this project. He recalled an earlier case where the town was taken to court. He noted that no balloon test had been conducted, adding ‘let’s do it right this time.’
Mr. Raitto said he felt there would be an adverse effect on the value of his property. He felt people weren’t properly informed, saying he didn’t understand that there would be a tower. He noted the number of people in the room and said that a few other people might know what’s going on, but not many. He doesn’t plow his driveway in the winter so he can’t give permission to use his road for access or for utilities. His house is for sale, and he thinks one could see 40 feet of tower over the tree canopy, which isn’t good for his house sale. He said the town voted on the wireless communication overlay ordinance and that is the biggest thing. He felt he was misinformed about the tower, adding that the public notices didn’t specify a tower. He
feels the tower should be in the overlay district. He wondered if WiValley had tried to co-locate on the existing tower in town. He said there are roads crossing the whole town and surely there is someplace else to put the tower, even if it takes five towers to reach everyone who wants service.
Wittenborg clarified that the ZBA was appointed by the Selectmen but the Board does not represent the Selectmen, nor does it represent the public. It represents the ordinances themselves, and to grant a variance the Board, by statute, must make legal findings of fact on five criteria, which she enumerated.
For Use Variances the Board must find that:
(1) There would not be a diminution in value of surrounding properties as a result of granting this variance.
(2) The granting of this variance would not be contrary to the public interest.
(3)(a) The zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property within its environment.
(3)(b) There is not a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property.
(3)(c) The variance would not injure the public or private rights of others.
(4) By granting this variance substantial justice would be done.
(5) The use contemplated by the applicant as a result of obtaining this variance would not be contrary to the spirit of the ordinance.
She said the Board’s job is to apply the ordinance. She noted that the ordinance does not take into account new technology, adding that the FCC information tells the town they cannot prohibit installation of this technology. Cathy Davis wondered if the Board should do a site walk, to note the impact on the neighborhood of this installation. Ernst asked if it was appropriate to also request a balloon test.
Wittenborg said the Board needs to review case law and to determine if a denial would limit the reasonable use of the property. Coni Porter said she feels urgency and is concerned that further testing would delay the project, wondering if it was necessary to do further research. Karen Craig wondered how to get to a finding of fact, since diminishing value or not diminishing value is subjective and tends to offset each other. Sue Massin said there was never any intention of deception in the discussion of wireless transmission, and the Group had no idea initially where a tower might be located.
Eric Durmer, Sunset Road, said the Board was designed to make exceptions to burdensome ordinances, adding that the FCC and the Supreme Court have ruled that a town cannot prohibit siting wireless services. Wittenborg reiterated that the only way the Board can grant a use variance is by a positive finding on the criteria.
There was other discussion by the public about location of the tower within the overlay district, possible revenue from leasing the space for the tower, building a tower large enough so co-location of other services would be possible, the need for a site walk, testing within the WCFOD.
Davis moved, Roberts seconded and the Board voted to continue the hearing to Thursday, October 30, 2008 at 7 PM. Ernst moved, Roberts seconded and the board voted to amend the previous motion to say that the Board may or may not make a decision at that meeting.
When asked what happens next, Wittenborg said the Board will gather information, digest it, and review case law to answer questions they have for themselves. The Board decided to do a site walk on October 21st at noon. It will be posted for the public.
Case #08-09: Jim Barker, represented by Paul Grasewicz, application for an Area Variance to construct a new septic holding tank within the 75 foot setback from water and wetlands on property located at 500 East Lake Road, Map 21, Lot 8, Rural District.
Steve Filipi was seated and Roberts took over as chairman.
Paul Grasewicz presented the case. The current situation is that a seasonal residence has a failed cesspool and a privy on the property. Their solution is to tie into existing plumbing with a new 2000 gallon holding tank. The tank will be alarmed and pumped regularly. The tank, and existing system, is 38 feet from the lake, within the wetlands protection overlay district. Grasewicz noted that the WPOD does allow for the repair of structures within the WPOD, but doesn’t specify septic tank repair.
Roberts asked if the current cesspool will be dismantled. It will be.
Mr. Yon asked why the system couldn’t be placed higher up on the property. Grasewicz said gravity feed is better than pumping uphill into a system. He said that at some point they will replace the holding tank with a septic system and then they will pump effluent but they don’t want to pump raw sewerage. He added that it’s in the groundwater now when the cesspool was in use. He said that this is the best option for the time being. Grasewicz added that they will need three waivers from DES for this project.
Wittenborg moved, Ernst seconded and the Board voted to grant the Area variance, by unanimously agreeing to all five mandatory findings.
Minutes: The Board reviewed minutes of the September 9, 2008 meeting. Wittenborg moved, Filipi seconded and the Board approved the minutes as written.
The meeting was adjourned at 9:30 PM.
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