ZBA MEETING MINUTES
MAY 10, 2005
Members Present: Jane Roberts, Chairman, Dan Baker, Edwin Mattson, Gretchen Wittenborg, Carl Goldknopf, Alternate and Andrew Clukey, Selectmen’s Representative.
The meeting was called to order at 7:35 PM.
Roberts explained procedures for public hearings, asking petitioners to introduce themselves, and direct all comments to the Board.
Roberts continued the Public Hearing for Case #05-05: John Tommila requests a Variance under Article V, Section 127- 19, Table of Dimensional Regulations, of the Fitzwilliam Land Use Regulations to allow him to adjust a lot line that will result in decreasing the acreage of a conforming lot from 3.2 acres to 1.317 acres, Tax Map 41, Lot 13, Light Industrial District.
Roberts noted that on April 12, 2005 the Board of Adjustment granted the variance to create a non-conforming lot contingent upon a survey of the property that demonstrated boundaries of the lot line adjustment. She recalled that the Planning Board granted conditional approval of the lot line adjustment on April 5, 2005. Conditional approval was based on the following condition: The applicant seeks a variance from the Table of Standard Dimensional Regulations to create a non-conforming lot.
Mr. Tommila reviewed the survey map with the Board, noting that the remaining lot with the house on it is 1.37 acres. When conveyances are recorded for the lot line adjustment, the lumber mill will continue to use the back acreage for lumber storage as they have been for the past 60 years without further change. Mr. Tommila said the abutter, who is interested in buying the house, was not at the meeting because she had been at the last meeting and he didn’t think she needed to be at this meeting.
Roberts insured that the plat was appropriate for filing with the Cheshire County Registry of Deeds. Wittenborg reminded Mr. Tommila that the Planning Board must sign off on the plat. Goldknopf clarified the boundary line, driveway line and future right of way for the house and lot. Mr. Tommila assured him the driveway is very wide, wide enough for the house and lumber mill to use.
Wittenborg moved, Baker seconded and the Board voted to grant the variance, conditional upon the Planning Board signature on plat.
Case #05-09: Ronald Morey seeks a Use Variance under Article III, Section 127-7 Table of Principal Uses, to build a residence located in the General Industrial District, Map 12, Lot 12. His cold storage building is located there and he proposes to remodel it and reside there.
Roberts indicated the Board had reviewed files going back six or seven years. She asked Mr. Morey how the property was being used now. He replied, as a storage unit and assured the Board no one was living there now. Roberts reminded the applicant that in 1999 the Board had held a rehearing, which Dan Baker chaired, based on a permit from DES, and granted conditional approval to build a storage shed, providing it was not to be used as a residence. She asked what had changed since that time.
Mr. Morey said his circumstances have changed since then and while he has other real estate, it is not affordable for him to live in it. Roberts asked if any one on the Board had seen the property in question, and noted she had driven by but honored the no trespassing signs. She suggested a site walk. Mattson said that with the various questions raised in 1999 he would like to see a map with actual footages measured out. He wondered it there had been any change to the land and Mr. Morey said no.
Baker said the Board’s procedure is to consider the variance in light of Article III, Chapter 127-7 A, and ask whether the land is even appropriate for another use, as proposed in the variance application. Mr. Morey said he would have a state approved septic system. Baker remembered that in 1999 the Board was concerned about the property being in a flood zone and at that time worried if the storage shed was anchored against flooding. Mr. Morey said that since 1979 there has been no problem with flooding. The property was legally filled in 1977 and the shed was built in 1999.
Baker returned to the variance criteria and wondered again if the land was appropriate for the change in use. Mr. Morey feels it is.
Wittenborg said that before a site walk, she felt the wetlands must be sufficiently defined and suggested the Conservation Commission become involved. Baker agreed they needed a wetlands determination prior to an informed consideration of the application.
Goldknopf suggested the applicant get the wetlands flagged to insure any setbacks could be met. Mr. Morey asked if they couldn’t determine that during a site walk and Goldknopf responded that a wetlands scientist was needed. Since it is prohibited in the Land Use Ordinances, he wondered if allowing a residence in General Industrial District was a good idea.
Baker reiterated that he didn’t have enough information to consider the application until the wetlands are flagged and a survey is done to show the relationship of the building lot to the wetlands. Wittenborg said that in 1999 the state said the property was in a floodplain and that needs to be confirmed or disavowed, in order for the Board to decide if the land is even appropriate for a residence. She noted that Mr. Morey refers to the filled land as being above floodplain. Mr. Morey reminded the Board that land was filled prior to the warrant article creating the wetlands overlay district.
Mattson noted the construction plan has no detail, where the building is actually located in the filled area and what modifications are planned to convert it to a residence. Roberts noted that in order to get a building permit the wetlands would need to be delineated and boundaries and setbacks measured. Baker told Mr. Morey that he had the option to continue the hearing and get the information the Board needed, or the Board could go ahead and act on the application now with the information at hand. Mr. Morey said he would come back.
Baker moved, Mattson seconded and the Board granted a continuance for Mr. Morey to return to the Board with the information requested.
Case #05-08: James Dunham seeks an Area Variance under Article V, Section 127-17 to exceed setback requirements for a garage he plans to build on his property, Map 28, Lot 16-5, Route 119W, Rural/Residential District.
Roberts clarified that Mr. Dunham was denied a building permit by the Board of Selectmen and they referred him to the Board of Adjustment. He agreed saying it was because of the setback of the left front corner (as seen from the road) of the proposed garage, which intrudes five feet into the setback. He explained he has done a lot of site work, including blasting, which apparently hit underground streams. He would have gone back further but the more you blast the more water is released. He believes it is ‘pretty well’ under control.
Baker confirmed the garage would not be closer than the house to the road. Mattson noted that if the garage was back five feet he wouldn’t be before the Board. Mr. Dunham said the house was forty-nine or fifty feet from the road, and that he has built a retaining wall and can’t really go back further with the garage now without it costing a great deal more. Goldknopf asked if the garage couldn’t be smaller. Mr. Dunham was firm that the garage, in order to be useable, needs to be 40 feet wide. Goldknopf suggested moving an entrance door but Mr. Dunham said his plans for storage of equipment and wood and the need to open the garage doors prevented that. He said the extra four feet make all the difference in the world.
Roberts asked about the pitch of the roof and water runoff. Mr. Dunham agreed the roof was practically flat, but the design is approved by the state. Baker confirmed it is a steel building. Mr. Dunham said he thought there was about a two-foot differential between side walls and the peak of roof. Roberts asked about his plans for runoff and he said there was a lot of drainage in place, a lot of stone and a pipe that drains from the back into the state culvert. He said originally water ran down the driveway. Mattson confirmed there would be no change to the driveway.
Roberts asked if there were abutters in favor, hearing none she asked for opposing abutters. Pete and Margo Best came to the Board with photographs and expressed their grave concerns for their view shed and the increasing water that seemed to threaten their septic system. They said a considerable number of trees have been cut in this project and now they can see the Dunham house and the proposed garage will be very visible. Mr. Best suggested that boulders used as fill were diverting water, which may be affecting the septic system. His photos show a black substance he says is filtering up from the leach field, and it is so wet he can’t even mow it. He says the pitch of the land has been changed by the fill and the water no longer drains adequately. The five foot drop is no longer there.
Mr. Dunham told the Board he was born in the house the Bests now own and the hill and land has always been wet, there are springs all behind them and water has always run through the property. The boulders, he said, should not affect their septic system. He told the Bests he has purchased two willow trees to replace the tree buffer for their property and to absorb any extra water. He noted the trees he cut were on his property.
Baker asked if the building would add to the water problem. Mr. Dunham said the building will be 100 feet away from the Best’s and the land slopes to the road, away from the Best’s. Mrs. Best said these were natural wetlands and wondered if the fill had changed natural drainage patterns.
Baker noted the Board’s job was to decide if the variance would be injurious to the neighbors, saying whatever you do can’t hurt the neighbors. He wondered what else might be done to alleviate the water situation. Mr. Dunham reiterated that the water has always been there, it runs from behind the Best’s through their property, and suggested the willows may help. He denied that the water on the Best’s property had anything to do with his excavation. He disagreed that there are wetlands involved.
Mrs. Best described the two issues that most concern her – site work that has created the water situation and the tree cutting that has changed their view. She said she asked the Conservation Commission to review the property.
Wittenborg suggested continuing the hearing until the Conservation Commission could check it out. Baker asked Mr. Dunham if he knew the Conservation Commission was involved and he said no. Baker thinks it is germane for the Conservation Commission to be involved and recommended a continued hearing. Mattson asked if the Selectmen had reviewed building plans. Mr. Dunham said no, there are no building code regulations.
Baker moved, Goldknopf seconded and the Board voted to continue the hearing for Mr. Dunham’s variance until the Conservation Commission reports their findings.
Case #05-10: Harold Ramsey seeks an Area Variance under Article V, Section 127-17 prior to subdividing his property into two non conforming lots, Map 28, Lot 28, with frontage on Route 119W and Columbian Road in the Residential District.
Mr. Ramsey explained that there are two homes on one lot, which had at one time been informally divided into three tracts. One home is a mobile home, which he renovated when he first bought the property. It is now rented. He then began work on the house and wishes to sell it now that it’s finished. However, no bank will finance the mortgage with the mobile home on the lot. That is why he wants to subdivide the property, which would create two lots of under one acre, each with a home on it. The use of the property would not change.
His other option is to remove the mobile home. It is currently occupied and has been on the land for at least 30 years. Wittenborg asked when he purchased the property. He said four or five months ago, and he bought it as distressed property. Baker asked about access to the back lot and it is from a non conforming frontage on Columbian Road.
He asked if Mr. Ramsey had been before the Planning Board. If not, he suggested Mr. Ramsey meet with the Planning Board to discuss conditions for a subdivision and then return to the Board of Adjustment if necessary. Roberts said the ZBA couldn’t do anything with the application before the Planning Board acts. Mr. Ramsey will schedule a preliminary consultation with the Planning Board.
Case #05-11: Steve Wendell appeals the Administrative Decision of the Planning Board denying his major site plan review application to construct three AM radio towers, access road and transmitter building on property on the east side of Route 12, south of Scott Brook, Tax Map 12, Lot 7-1, General Industrial District.
Mr. Wendell introduced himself and outlined his proposal for a local AM radio station serving the community. He showed the Board its location on the map and discussed FCC regulations regarding AM radio stations. He noted he has obtained a construction permit from the FCC to construct a tower to broadcast on the 540 AM frequency. FCC regulates tower height. A tower of at least 291 feet is required to broadcast on the 540 AM frequency. A three tower array is also required to broadcast signals in several directions, insuring there is no overlap with other stations using the same frequency. Mr. Wendell named several AM stations that broadcast using the 540 frequency, none are in NH. He distinguished between AM and FM towers, in that for AM broadcasting the tower is the antenna, for FM the
antenna is on top of a tower.
Mr. Wendell feels the only way he can compete with the Boston and Manchester radio markets is to have a local station that serves the community. He will offer local, state and federal emergency services co-location on the tower for free and offer community broadcasting.
Baker noted that since the Planning Board rejected the application, the Zoning Board would like to hear where Mr. Wendell thinks the Planning Board made errors in their decision making. Mr. Wendell distributed a document outlining the waivers he had requested and the errors in the Board’s decision making around those waivers. Wittenborg noted the Board had no opportunity to review this document prior to the meeting and felt at a disadvantage. The document is attached and is a part of these minutes.
Regarding the use district, there was some disagreement about whether the definition of ‘wireless communications facilities’ in the Wireless Communication Facility Ordinance and Overlay District Article IV, Section 127-16.2 C included AM radio towers. Baker felt it applies to any structure, any antenna, any tower. Mr. Wendell disagreed. Goldknopf asked Mr. Wendell if he was differentiating between towers, implying that an AM tower is a special tower. Mr. Wendell said yes, that is my point. He said FCC regulations require specific tower construction, based on intended use. Baker said the Land Use regulation discusses structure and towers, making no distinction between kinds of towers.
Mr. Wendell added an AM radio tower array must be configured in a certain way to achieve directional coverage. Land must be chosen that can accommodate the configuration. Baker clarified that Mr. Wendell needs a waiver to comply with the lot he’s chosen, due to the particular configuration of the AM tower array, and asked if the Planning Board understood that. Mr. Wendell said yes, they understood and voted it down. Baker asked if the Board made a mistake and Mr. Wendell said yes, federal regulations preempt local regulations. Wittenborg clarified that Mr. Wendell says the Planning Board made a mistake by not reviewing federal regulations. Mr. Wendell said yes, their mistake was not considering FCC regulations, and the town’s own ordinances, citing LUO Article IV,
Section 127-16.2 F(2), which requires compliance with federal regulations.
Regarding the waiver for height, Wittenborg asked if any town that regulates tower height is prejudicial against AM radio towers. Mr. Wendell responded yes and Wittenborg said she needed an authority for that. Mr. Wendell cited RSA 674:16 that states FCC preemption. (Statute seems to refer to amateur radio.)
Goldknopf asked if any other property had been considered. Mr. Wendell noted that the tower array must be aligned in particular direction to avoid interference with other AM stations broadcasting on the 540 frequency. He decided this property was best, after reviewing other properties.
A balloon test was conducted and the balloons could be seen from the Fitzwilliam Post Office and the Scott Brook area. Mr. Wendell took photos all over town and said the balloons were not visible. Goldknopf asked how high the balloons flew and Mr. Wendell said 300 feet. The test was conducted on April 9. Members of the Board accompanied Mr. Wendell on a site walk on April 2, the originally scheduled date for the balloon test, which was cancelled due to weather.
Baker noted the Planning Board did not grant the height waiver. Wittenborg asked what the minimum height was and Mr. Wendell responded 295 feet for the 540 AM frequency, which is mandated by the FCC. Baker said the Board needed to determine who has authority to regulate use and height.
Regarding waiver three, proximity of towers to each other, Wittenborg asked if the FCC had the authority to regulate that too. Mr. Wendell said yes, noting that the Planning Board had already approved two towers that were closer than the ordinance required. He said he had selected a remote area for minimal impact, saying the FCC overrides the separation regulation too.
Mr. Wendell said these towers are designed to fall vertically so the need for separation is not necessary. He noted the Board had approved a waiver for Roy Brothers and Saga. Wittenborg asked how tall those towers were and he responded 100 feet and 92 feet. Roberts asked again if federal law trumps local law. Mr. Wendell said yes, for AM radio towers. He cited Koors v Lebanon, in which the NH Supreme court overruled local action.
Baker stated that from his perspective he did not feel comfortable ruling on jurisdiction, and said he’d like to get an opinion and review case law to determine authority. He referred the research to the Land Use office for an opinion and for relevant case law, and to work with the Board of Selectmen to get another opinion if necessary.
Mr. Wendell presented a chart created by Mr. Pini, husband of Carlotta Pini a Planning Board member. He said she had presented this chart to the Planning Board and he felt it prejudiced Board members against his application. He said the chart purported to show tower height as seen from various perspectives, but was not to scale with the actual geography.
Goldknopf asked if additional permits were needed before he could obtain final approval and Mr. Wendell said yes, even though no part of any tower was in wetlands setback a permit was needed. Mattson asked if there was no way to reconfigure the towers on the land and Mr. Wendell responded there were wetlands and view shed issues, that the towers had already been shifted once to provide for an abutter’s view.
Mattson asked about the internships Mr. Wendell mentioned in his proposal. Mr. Wendell said interns would work at the station studio. The towers will be separate from the studio, which could be located in town, and hooked to the transmitter/tower by telephone wires. The transmitter building is 10 feet by 10 feet and will be checked once a month. Less than 5% of the land will be disturbed and it will revegetate quickly.
Baker asked who Mr. Wendell represented and he replied AM commercial radio. Baker wondered if anyone here represented amateur radio operators or emergency services. Mr. Wendell said he will co-locate emergency services antennae for free. Baker asked why Mr. Wendell’s citations concerned both amateur radio and commercial radio. Mr. Wendell said he did have one ham radio operator who was interested in using his tower. Wittenborg asked if the Planning Board had interfered and he replied no.
Mr. Wendell said he hoped to offer co-location on his tower to all, so there would no longer be a need to build new towers. Baker said we already have towers and asked if Mr. Wendell had made an attempt to get the current towers operators to co-locate and remove their towers. Baker stated he thought it was important from a public perspective to note Mr. Wendell was adding three more towers, but if they could consolidate it might be feasible.
Mr. Wendell said he would charge fees for commercial services on his towers, including the Roy Brothers and Saga towers. They had not responded to his offers.
Wittenborg moved, Goldknopf seconded and the Board voted to continue the hearing until their next meeting, June 14, 2005, so they can get an opinion and review court cases.
Goldknopf speculated that if the Zoning Board denied the appeal it would go to court and Wittenborg said that was not a given. Baker noted the Board did not have enough technical information to decide. Mr. Wendell stated that he did not want to go to court, that he wanted to be a good corporate citizen.
Minutes: The Board reviewed the minutes of the April 12, 2005 meeting. Wittenborg moved, Goldknopf seconded and the Board approved the minutes as written.
Administrative: Ashley Fletcher was appointed an Alternate and the Board urged Dan Baker to become an Alternate, since he is not planning to serve another term on the Board. Dan has served for 18 years and feels it’s time to move on. The Board expressed their wish to have him stay on in an alternate role if possible.
Wittenborg moved, Roberts seconded and the Board adjourned at 10 PM.
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