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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

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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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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