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APPROVED
TOWN OF PELHAM
ZONING BOARD OF ADJUSTMENT MEETING
AUGUST 13, 2001
The
Chairman, Walter Kosik, called the meeting to order at approximately 7:35.
Edmund
Gleason, called the roll:
PRESENT: Peter McNamara, George LaBonte, Walter
Kosik, Edmund Gleason, and Alternate David Hennessey
ABSENT: Peter LaPolice
Mr.
Kosik announced that Mr. Hennessey would vote in Mr. LaPolice’s absence.
Case
#2202 – ML – 4-174 – SILVERMAN, Kenneth – 160 Jeremy Hill Road – Seeking a
Special Exception to Article XII Section 307-76 to permit a General Home
Occupation to acquire a Bonded Dealer’s License in a residential zone.
This case is a continuance from the June 11, 2001
meeting. The case was continued to get
information from Mr. Roland Soucy the Building Inspector.
Mr. Roland Soucy, 52 Marsh Road, the Town Building
Inspector stated the only problem he had with this application was the
applicant was applying for a bonded dealers license at a residential
address. He has turned down 100% of
this request because it is in a residential district. The problem is that they
are using it as a office mailing address then it turns into a used car lot,
repair shop, etc. Mr. Soucy did not
have a problem with Mr. Silverman building a garage, the only problem was what
the garage was being used for.
Mr. Kosik asked if Mr. Soucy has had other requests for
this. Mr. Soucy answered he has turned
down between 25 –30 applicants. Mr.
Kosik asked if Mr. Silverman would qualify for a minor home occupation. Mr. Soucy responded no.
Mr. McNamara asked Mr. Soucy if there is a special
significance to a bonded dealer’s license.
Mr. Soucy said it allows an individual to go to an auction, buy whatever
is selling (motorcycles, cars, trucks), and be able to sell it wholesale or
retail. They cannot retail them at a
residential property. Mr. Soucy said 9 out of 10 times the vehicles end up on
the residential property.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
20
Mr. Gleason stated his concern regarding the leaking of toxic
materials and the number of unregistered vehicles on a residential
property. Mr. Soucy said two or more
unregistered vehicles constitute a junkyard.
Clay Mitchell, Interim Planning Director stated that one
question on the bonded dealers license form asked does it comply with local
regulations and ordinances, and when Mr. Soucy answers that question no and
turns them away, it is not appeallable to the Zoning Board of Adjustments
because it is a state process. He
believes the wording on the ordinance needs to be changed.
Mr. McNamara reported that the Fire Chief had concerns on
storage of tires and batteries onsite and any fluids (gas, oil, and
transmission). The Fire Chief had no
other concerns.
Mr. Kenneth Silverman, 160 Jeremy Hill Road wanted to
clarify that he went to Mr. Soucy with the intent of this endeavor, not to
build a structure that already existed.
He said that this is not for gainful employment and he has no intention
of running a wholesale or retail business from this location. He will do what ever is appropriate
concerning the building and hazardous waste codes with regards to the
disassembly of the motorcycles. He said
the motorcycles he is involved with are 600 cc and below and therefore, there
are no liquid cooling systems. The
transmission fluid and oil stay in the engine and are shipped out in a
barrel. He is trying to do a public
service for some people.
Mr. Kosik asked Mr. Silverman how many bikes he handles per
year. Mr. Silverman answered between
15-25. Mr. Silverman said they are
never started. They are disassembled
for parts and sent down to Jamaica. Mr.
Kosik asked if Mr. Silverman has ever been a bonded licensed dealer. He answered no.
Mr. Gleason asked Mr. Silverman to describe the
process. Mr. Silverman stated the
motorcycles are bought and shipped to his property where they are disassembled
and shipped out in crates. Mr.
Silverman then transports the crates to New York. Mr. Gleason asked why in a residential area instead of a
commercial area. Mr. Silverman replied
this is not a business and is not a very large business. It would not be beneficial for him to become
a commercial operator.
Mr. Gleason expressed his disapproval of this type of
activity in a residential area. He is
concerned about more motorcycles being brought in and the leakage of the
storage drums. Mr. Silverman responded
the drums are never filled and he can put a plastic container underneath the
drums in case of accidental leakage. He
has no intention of expanding this operation.
Mr. Kosik asked Mr. Soucy that if the Board approves the
special acception, does he need to apply for a license. Mr. Soucy answered yes he would. And would he need Mr. Soucy’s
signature. Mr. Soucy said he has
consistently denied people for bonded dealership licenses in residential
districts.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
21
Mr. LaBonte asked Roland if Mr. Silverman could also
purchase used cars with a bonded dealer’s license. Roland said he could. Mr.
McNamara asked Roland if the license could be transferred. Roland said the license is in his name and
he is responsible for it. And would
this license allow Mr. Silverman to hire employees. Roland said under the general home occupation he is allowed a
certain amount of non-resident employees and a certain amount of business
vehicles parked in plain view.
Mr. Kosik read the motion made in June. Mr. Kosik wanted to know if Mr. Soucy was
going to approve the special exception if the Board approved the
application. Mr. Soucy said he would
not.
The meeting was not open to public input.
The Board reviewed the Minutes from the previous meeting
regarding this application.
BALLOT
VOTE: Mr. Kosik- No –
Request for a Special Exception
Mr. McNamara - No
Mr.
Hennesey- No
Mr. Gleason
- No
Mr. Kosic
- No
Mr.
LaBonte – No
SPECIAL
EXCEPTION DENIED
Case
#2207 – ML 7 – 153 – Corbett, Jason & Deana – 9 Economou Avenue – Seeking a
Special Exception to Article XII, Section 307-74 to permit an accessory
dwelling in the residential zone.
Mr. LaBonte read aloud the list of abutters. There were no persons present whom did not
have their name read.
Mr. LaBonte read aloud Article 307-74.
Jason & Deana Corbett, 9 Economou Avenue would like to
turn their family room into an in-law apartment. Mrs. Corbett passed out sketches of the property. Mr. Corbett passed out pictures of the
property. Mrs. Corbett described where
the in-law apartment would be on the sketches.
Mr. Gleason asked about the septic system. Mrs. Corbett said the septic system is
designed for a 4 bedroom, they have a three-bedroom home now and with the
in-law apartment it would require a 4 ˝.
A new septic system is in the process of being designed to accommodate
the in-law apartment.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
22
Mr. Hennessey made a motion to approve the Special
Exception subject to a satisfactory septic system design for a 4 ˝ bedroom home
and the Building Inspectors approval of the final plans that conform to the
zoning regulations. Mr. Hennessey wants
to make sure there are no changes to the construction. Mr. Gleason said they
would need to apply for a building permit if there were any changes to the
construction.
Mr. Gleason asked if they had an occupancy permit. Mr. Corbett said yes that they are living in
the house.
MOTION: (Hennessey/LaBonte) To approve the special exception subject to a satisfactory septic
system design for a 4 ˝ bedroom home and the approval of the final plans
conforming to the zoning regulations by the Building Inspector.
VOTE: (5-0-0) The motion carries.
Mr. Kosik said that they should not proceed with any work
until the septic system design is in place and the final plans are
approved.
Mr. Soucy said that 80% of the work is done. He said he held up the occupancy permit
because there was an accessory dwelling there.
Mr. Soucy said he still has to do a final inspection.
BALLOT
VOTE: Mr. McNamara - Yes
Mr. Hennessey - Yes
Mr. Gleason - Yes
Mr. Kosik - Yes
Mr. LaBonte – Yes
SPECIAL
ACCEPTION GRANTED WITH CONDITIONS
Case
#2208 – ML 4-159 – HEUTHER, Carl & Paula (property owners), SPRINT PCS
(applicant) – 169 Jeremy Hill Road – Seeking a Variance to Article X, Section
307-58 to permit the removal of a permitted 100’ guyed communication tower
which is used for transmission and receipt of radio communications and
replacing this with a personal wireless services facility, consisting of a 120’
monopole and associated equipment.
Mr. LaBonte read aloud the list of abutters. There were no persons present whom did not
have their name read.
Mr. John Springer appeared before the Board. Mr. Kosik asked Mr. Springer to address the
five criteria. Mr. Springer read the
following criteria aloud:
Item #1. It is in
the public interest: there is a public interest in bringing wireless technology
into this area.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
23
Item #2. There will
be no decrease in value of the surrounding properties: the property already has four towers on it.
They want to install a monopole in place of one of the towers.
Item #3. This
request is within the spirit of the zoning ordinance: will be adding to an existing structure.
Item #4. There is substantial justice to be done: this
technology has a limited range and can be blocked by topology or
vegetation.
Item #5. There is
significant hardship: the existing
towers are already there and are in the proper area.
Attorney Beth Davis appeared before the Board to represent
the abutters. Ms. Davis had four
grounds for objection.
Item #1. Hardship
criteria: the property is in a
residential zone and the property has reasonable use and that use is to be
utilized as a residence.
Item #2. Zoning
Ordinance: the Town of Pelham has a
cell tower ordinance that says there are seven zones, 3 in the industrial and 4
in the business zones that constitutes the cell tower overlay districts. This property is not located in these
districts.
Item #3. Public
interest: visual, environmental and
historical impact. Would interfere with
abutter’s views.
Ms. Davis wanted to point out that the four towers were
constructed before the cell tower ordinance and Federal Telecommunication Act
went into affect. She stated the
agreement between the Town of Pelham and the Heuthers that said the towers were
to be used for hobby purposes only not for commercial use and none of the
existing towers be changed with regards to the size of the towers. She said two other basis of denying the
Variance are found in the Telecommunications Act. The Federal Act does indeed recognize that municipalities and
localities retain certain rights to control the placement and location of cell
towers in their communities. She cited
two cases in New Hampshire regarding the Telecommunications Act that have found
as long as the localities cell tower ordinance does not discriminate against
one company over another, the cases have upheld the denial of Variances. Ms. Davis says there is support under the
Telecommunication Act that would allow the Board to deny this Variance because
it is in a residential area.
Ms. Davis said the cell tower ordinance does require 175’
side, rear and front set back. On the
Tax map, the frontage on Jeremy Hill Road is 291’ and the frontage in the back
of the lot is 318’. She said even if
the pole is located in the middle of the lot, she does not think there is 175’
to satisfy the setback.
Mr. Kosik wanted to state publicly that he received letters
from Robert J. Francis and Ed Thompson, two abutters. He did not read the letters.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
24
Mr. Paul Steck, 146 Jeremy Hill Road addressed the Board
with his beliefs. Mr. Steck believes
the placement of the monopole will decrease the value of the surrounding
properties. He does not think it is in
the public’s best interest because there are other networks already in the
area. He mentioned some statistics that
reported motorist that used cell phones were more likely to be involved in
traffic accidents. He believes they
have not met the setback requirements.
He is asking the Board to deny this Variance.
Mr. Frank Reed, 131 Jeremy Hill Road read a letter his wife
wrote to the Board.
Mr. Russell Hamel, 173 Jeremy Hill Road, showed the Board
photos of the views from his property.
The towers are in clear view. He
believes his property is the most affected.
He is in opposition of the Variance being granted.
Mr. Ken, 14 Bowman Lane, hoped the statements made by Mr.
Springer do not intimidate the Board.
Mr. Kenneth Silverman, 160 Jeremy Hill Road, referred to
Mr. Springers statement that “property values will not be affected but may
enhance the value by providing the owner of the property with the use of a cell
phone”. He believes this is an unrealistic
tactic used by Mr. Springer. Mr.
Silverman read an article in The New York Times regarding property values in a
residential area where a cell tower was installed.
Mr. James Bundock, 20 Scenic View Drive, is not an abutter
but does have an interest in preserving the integrity of the residential
zone. He believes that if the variance
is granted it opens a threshold to other carriers to invade the residential
area.
Mr. Frank Sousa, 9 Bowman Lane, just wanted to be on record
that he opposes this variance.
Mr. Springer said the fact that the Heuthers have a house
on the lot not does not preclude the granting of a Variance. Mr. Springer submitted photographs to the
Board to show what was on the property now.
He showed on the plans which tower is going to be replaced with the
monopole. He is seeking a Variance
regarding the setback issue. He said
the leased area is 60 x 60 that will be fenced in. He said they will be using the existing drive and the utilities
will be underground. He said you will
not be able to see the equipment compound because of the heavy vegetation and
location behind the house.
Ms. Nooshin Zareian, a Radio Frequency Engineer for Sprint,
explained why Sprint is looking at this particular site and why they need this
coverage. Ms. Zareian presented a total
map of the area showing the town lines.
She pointed out the coverage plot they will get from this site. The map was marked to show the existing
sites and the proposed sites. Ms.
Zareian described their process for finding a site. She said that they go after existing towers. If they cannot find an existing tower to
collocate they go after a new build.
The major objective for this site is to cover the north side of Pelham. This is the only area with no coverage. She said they looked at the commercial and business
districts but those locations would not provide the coverage they need.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
25
Mr. Springer addressed the issue of the Heuther’s Deed by
Ms. Davis. He said he is well aware of
the language in the Deed and he does not agree with her interpretation of
it. He said it is a civil matter and if
her clients have a right to enforce it, he will be happy to talk with her in a
different forum. He does not believe
the issue should have been raised. Mr.
Springer addressed the concern of Mr. Steck regarding his approach path to his
air landing strip. He said the FAA
approved the towers ten years ago. He
said Mr. Steck attempted to object to them at that point and he was
denied. Mr. Springer said they are not
going above the highest existing tower now, they are not increasing the height
and they are not changing how he should approach his landing strip. Mr.
Springer addressed the property value issue raised by Mr. Silverman. He said they have prepared appraisals by
certified appraisers and have found no diminution of value in any New Hampshire
town. Mr. Springer said Mr. Bundock
raised the issue of lowering the threshold for other carriers and that point
would be valid if there weren’t already existing towers. He said if you look at the ordinance, it
encourages a one-time extension of a tower as long as it is under 199’. Mr. Springer said it was not his intention
to intimidate the Board and he apologized if it came across that way. His intention was to work with an existing
tower that was encouraged by the Town Ordinance.
Ms. Davis said it is misleading to talk about the
replacement of an existing tower in this case.
She said in the ordinance that Mr. Springer is referring to, talks about
commercial cell towers not adding or replacing. There are no commercial cell towers on the property. Ms. Davis talked about the property value
issue. Ms. Davis made reference to a
case in Amherst, New Hampshire where an appraisal was submitted and said there
was no diminution of the property value.
The court said we are going to listen to what the homeowners say who
live in the area.
Mr. Paul Steck, 146 Jeremy Hill Road wanted to point out
that the abutters are not just located in front of Mr. Heuther's home and therefore,
the vegetation does not hide the towers from their views. Mr. Steck read a letter he received from the
FAA. The letter stated the FAA cannot
prevent the construction of structures near the landing area and the landing
area can only be protected by the zoning ordinance.
Mr. Silverman referenced a case in Texas where a family was
awarded 1.2 million because of a 120’ cell tower near their property. The cell tower had lessened their property
value and caused mental anguish. Mr. Silverman stated that Sprint is not adding
20’ to an existing tower but actually replacing the tower. He then expressed concern regarding the
number of maintenance vehicles traveling to the site. Mr. Silverman wants to know why they need a 120’ tower and not a
50’ – 70’ tower. Mr. Silverman would
like to hire an assessor before the Board makes their decision.
Mr. Russell Hamel, 173 Jeremy Hill Road, stated that the
purpose of tonight’s meeting is that the applicant is applying for a zoning
variance not a setback variance. Mr.
Hamel said that it was not on the application.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
26
Mr. Hennessey asked Mr. Springer if it was his belief that
the application is both a request for a use variance and sideline variance. Mr.
Springer responded that if you look at the Agenda, they are seeking a variance
to Article X, Section 307-58, which covers both. Mr. Hennessey asked Mr. Springer if the Board had to approve both
variances. Mr. Springer said
hypothetically if an applicant asked for two variances, you could find that the
applicant meant the grounds for one and not the other. Mr. Hennessey asked Mr. Springer if their
tower must be 120’. He replied
yes. Mr. Hennessey read Mr. Springer's
application regarding Item #4: there is
substantial justice to be done. Mr.
Hennessey quoted the response, which stated the residents of Pelham rely on
Sprint for their wireless access for service and the towerless space available
at the 110’ and possibly the 100’ location for other carriers and offer
collocation opportunities to other providers.
Mr. Hennessey asked if other providers can work with 100’ but Sprint
could not. Mr. Springer answered yes
and wanted to clarify. Mr. Springer
said the proposal does not allow for collocation, it is a one-carrier
pole. He said in the application that
if the Board wants them to make it a collocation site, they could build the
pole so that other providers can go below them. He does not know whether it will work for any one else from a RF
prospective at 100’. He said 120’ is
the minimum they need to achieve coverage.
Mr. Hennessy asked Mr. Springer if this is the one unique site that
Sprint can use to provide adequate coverage in the town of Pelham. Mr. Springer said that if they get this site
the RF waves are not going to go over Jeremy Hill. That is why they are on this side of the hill. Mr. Hennessey said that in Mr. Springer’s
application, it demonstrates that this is a terrific site. Mr. Hennessey said that the zoning laws
states you have to show that this site is “the site”. Mr. Hennessey wanted to know if Mr. Springer's RF Engineer
looked at all commercial and industrial zones in this town that could be
utilized in lieu of this site. Mr.
Springer directed the question to Christine Morrisey.
Ms. Christine Morrissey said she did the site acquisition
for this site and spent a lot of time at the Town Hall going over the zoning
maps. She said she has been looking for
site locations for the past year. She
tried the commercial and industrial zones and they were not usable for
Sprint. Mr. Hennessey read a zoning
code to Ms. Morrissey and wanted to know if her work satisfied this code. Mr. Springer said yes, they have.
Mr. McNamara asked what is the extent of their coverage in
Pelham. Ms. Zareian said it would cover
Route 128 and the residential area of Jeremy Hill and the surrounding areas
within a mile to a mile ˝. Mr. McNamara
asked Mr. Springer if it was a fair statement to say that the Telecommunication
Act mandates that a particular provider be given total access in any particular
community. Mr. Springer replied it was.
Mr. McNamara asked Mr. Springer if he had any documentation
regarding the diminution of property value.
Mr. Springer said he did not, but could provide it if necessary. Mr. McNamara expressed concern regarding the
studies that say that increased use of hand held cellular communication devices
increases risk of traffic accidents.
Mr. Springer said the New Hampshire legislature voted down the hands
free bill. He said the leading cause of
accidents in studies he has seen was changing the radio station
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
27
.
Mr. Gleason says he a problem with the content of the
variance. He said they are replacing a
private tower with a commercial one, which is a change in usage. He does not think they addressed the setback
requirements. He does not think the
Variance called for that. Mr. Gleason
says there is an agreement between the Town and the Heuther's that the towers
are only to be used for hobby purposes.
Mr. Hennessey asked if there would be a generator on
site. Mr. Springer said the plans do
not call for a generator right away.
Mr. Hennessey does not think the five criteria have been
proven. Mr. McNamara has a concern
regarding the safety issue. Mr. LaBonte
has a concern with the hardship issue.
BALLOT
VOTE: #1 4 NO 1
YES
#2 2
NO 3 YES
#3 5 NO 0 YES
#4 3
NO 2 YES
#5 4
NO 1 YES
VARIANCE
DENIED
DISCUSSION
Board
of Selectmen request to revoke Fred & Elizabeth Gendron’s Variance Case #
423 that was granted on February 11, 1974 to Article IIIA, Section 6 to permit
the continued use of existing facilities.
Mr. Kosik read a letter from the Board of Selectmen
regarding the Gendron Junkyard. Mr. Gleason
has found no precedent where the Board of Adjustment has ever revoked a
variance. Mr. Gleason feels the Board
should seek legal council before they take any action on this. Mr. McNamara agrees legal council would be
advisable, but they do have the power to attach conditions to the granting of a
variance. Mr. McNamara said there has
to be some kind of measure of redress for violations.
Mr. Hennessey said that the testimony from the State and
others states that Mr. Gendron went far beyond his variance and expanded to
non-conforming use. Clay Mitchell said
you cannot expand on a variance just like you cannot expand on non-conforming
use. Mr. Hennessey said Mr. Gendron changed
from the use of a junkyard to a dismantling yard where he had piles of hazardous
waste. The Variance that was granted by
this Board had nothing to do with that use of the land. Mr. Hennessey asked if there was any need to
revoke this Variance to say that the use to which he put his land was
illegal. Mr. Mitchell said technically
if he can now comply with the Variance, the Variance runs with the land and he
could continue doing it. Mr. LaBonte
said the Board is acting as enforcement Board now and that is not what their
position is. Mr. Hennessey says the use
to which Mr. Gendron put his is clearly a violation of law. Can he use his land for this purpose which
they gave the Variance to. Mr.
Hennessey said yes.
ZONING BOARD OF ADJUSTMENT/AUGUST 13, 2001 Page
28
Mr. Kosik said if there are any violations, they have been
going on for years. Mr. McNamara asked
who would enforce a future Variance with conditions on it when those conditions
are violated. Mr. Kosik responded the
Board of Selectmen and the Code Enforcement Officer.
Clay Mitchell read Section 307-79. Clay said this is an enforcement issue. He feels the Board of Selectmen should
enforce the Variance and then go to the Superior Court and ask them to
extinguish this Variance.
Mr. Hennessey made a motion
MOTION: (Hennessey/Gleason)
VOTE: (4-1-0)
MINUTES
REVIEW
June
11, 2001
MOTION: (Gleason/LaBonte) To approve the
minutes as clarified.
VOTE: (5-0-0)
ADJOURNMENT
MOTION: (Gleason/Hennessey) To adjourn
the meeting.
VOTE: (5-0-0)
The meeting was adjourned at approximately 10:51 pm.
Respectfully submitted,
Charmaine
M. Goyette
Recording
Secretary
.