APPROVED
Zoning Board of Adjustment
Meeting Minutes
October 30, 2008
Members Present: Jane Roberts, Gretchen Wittenborg, Jack Ernst, Cathy Davis and Steve Filipi. Sue Wood, alternate, was present. 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 continued: 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 from the case. Wittenborg chaired this continued hearing, saying she had some housekeeping details to cover first. She placed a letter from Kate Thomas, which cc’d Board members, into the record. She told the audience she had a statement to read, after which she would close the meeting so the Board could deliberate and vote, and then open the meeting to any questions that directly addressed the action the Board had taken.
Noting that even before the October 14, 2008 hearing, Wittenborg said she and other members of the Board were concerned about whether the Board had jurisdiction over this particular case. At the meeting, Mr. Foucher said FCC law likely preempted local regulation. Following the October 14, 2008 meeting, she asked for a legal opinion on two questions: 1.) Is WiValley’s application preempted by federal law and 2.) Is the ZBA bound to apply the standard variance criteria or were there other criteria that could be applied. She said the use variance criteria were duplicative of the waiver process outlined in the ordinance.
Wittenborg said Jeffrey Spears, a land use specialist at Orr & Reno law firm, was engaged to give the legal opinion. In answer to the first question, the opinion stated that the ZBA is not constrained by the Telecommunications Act of 1996, since that applies to cellular towers and does not apply to broadband wireless service as long as the two services are not commingled. In answer to the second question, the opinion stated that the ZBA does not have jurisdiction over the application, and that a variance is not the proper vehicle for determining whether the proposed tower can be constructed outside of the Overlay District.
Wittenborg noted that the Wireless Communications Facilities Ordinance and Overlay District was adopted under an innovative land use enabling statute that creates a regulatory niche scheme for the Planning Board, in effect replacing with the waiver process what would normally be the variance process. She added that the authority to locate and site the proposed facility is entirely with the Planning Board. She ended with the statement ‘the ZBA did not on October 14, 2008 have authority, nor do we tonight.’
The meeting was closed for deliberation. Wittenborg asked the Board if they had any questions. Mr. Yon, speaking for the Selectmen, said they unanimously agree with the two opinions from Mr. Spears.
Mr. Bentley, attorney for Mr. Raitto, requested that the microphones be turned back on so the audience could hear the deliberation. They were turned back on.
Ernst moved to remand this matter to the Fitzwilliam Planning Board for re-hearing under section 127-16.2, Wireless Communications Facility Ordinance and Overlay District, for purposes of Waiver and Conditional Use Permit. Roberts seconded the motion and the ZBA, voted. Roberts aye, Ernst aye, Davis aye, Wittenborg aye. The motion passed unanimously.
Wittenborg asked the public if there were any questions about the Board’s action.
Kate Thomas said she thought the Planning Board had already passed it, and asked why it was going back to them. Wittenborg said the ordinance was designed in such a way that the Planning Board has to grant a waiver from the ordinance to site the tower. Mr. Yon said the Planning Board conducted a site plan review and did not complete the review under the ordinance. Wittenborg read the Planning Board’s notice of decision, which states that “You are hereby notified that on October 7, 2008, after a duly noticed public hearing, the Fitzwilliam Planning Board voted to grant a conditional use permit under Land Use Ordinance Article IV, Section 127-16.2 G.(2) to construct a wireless communications tower on Map 15, Lot 6-3, Rural/Historic District, citing the minimal environmental impact of the
proposed facility and the substantial economic impact of high speed internet service on the town. The permit is valid pending obtaining a use variance to site the facility outside the Wireless Communications Facility Overlay District.” Wittenborg noted that the notice of decision was not complete according to the Planning Board minutes, which stated the following: “Silverman, noting that the applicant needs a use variance to construct this facility outside the WCOD, moved to deny the application and send the applicant to the ZBA for a variance of section 127-16.2 D-2. The motion was seconded by Gray and approved by the Board.” This motion was followed by the above motion.
Silverman, chair of the Planning Board, clarified the Board’s process, explaining that the Board denied the application because the tower was outside the overlay district and according to legal advice they received, the applicant needed a use variance to proceed. Wittenborg said the legal opinion from Orr & Reno disagreed. It stated that the waiver process under 127-16.2 replaces the use variance criteria.
Colleen Carroll, a resident, asked if the tower was being opposed. Wittenborg said yes, there is opposition on record. Ms. Carroll asked if coverage had been determined. Wittenborg said she couldn’t answer that question.
Ernst moved, Roberts seconded and the Board voted to reconvene in the Selectmen’s office to continue the meeting, so members of the public could stay in the Upper Hall to talk with the Technology Committee and WiValley representatives. Wittenborg invited anyone who wanted to attend the rest of the ZBA meeting to come down with them. Sue Wood, Steve Filipi and Carmen Yon joined the Board in the Selectmen’s office.
Minutes: The Board reviewed minutes of the October 14, 2008 meeting. There were several typos to be corrected and staff will review the tape to corroborate two other statements. There was some discussion about the veracity of a couple of statements made by members of the public. It was decided to leave those statements intact. Ernst moved, Roberts seconded and the Board approved the minutes as amended.
The next meeting date, November 11, is a town holiday this year and so the next meeting of the ZBA will be either the 13th or the 20th. Once decided it will be posted.
Wittenborg noted that Pat Hurst is interested in being on the ZBA, and didn’t realize he needed to respond to the Selectmen’s letter. She volunteered to pull together a précis of legal opinions and recent court cases for the Board regarding use variance criteria.
Ernst said family obligations may keep him away during November.
Roberts moved, Ernst seconded and the Board voted to adjourn at 7:48 PM.
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