APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

September 24, 2001

 

 

 

 

The Chairman, Walter Kosik called the meeting to order at approximately 7:30 pm.

 

The Clerk, Mr. George Labonte, called the roll.

 

 

PRESENT:             Walter Kosik, Peter McNamara, Dave Hennessey, Edmund Gleason, George LaBonte, Peter LaPolice

 

ALSO

PRESENT:             Clay Mitchell, Interim Planning Director and Attorney Diane Gorrow

 

 

 

HEARING

 

 

Case #2186 – ML 1-146 – SECOND GENERATION PROPERTIES LIMITED PARTENERSHIP – 40 Spaulding Hill Road – Court Ordered Remand – Seeking a Variance concerning Article X Section 307-58 of the Zoning Ordinance to permit the construction of a communications tower within the residential district.

 

Attorney James Tamposi, Jr. and Attorney Andy Shulman were present to represent Second Generation Properties.  Attorney Tamposi described the history seeking the variance.  He said they came before the Board seeking a special acception, which was denied.  He said they appealed to State Court and the State Court found in favor of the town.  He said one of the reasons for the denial was that they did not have any tenants lined up to go on their tower.  He said they regrouped and obtained leases and commitments from others.  He said in March of 1999, he learned Pelham changed its ordinances.  He said under the new ordinance they needed to get a variance.  He said they felt this was a violation of the Telecommunications Act.  He said they filed a suit with the Federal District Court under the Telecommunications Act of 1996.  He said they came before the Board again on October 12, 2000 and put on a presentation for a variance.  He said they went through the five criteria and the Board denied the variance.  He said the only one of the five parts they had a no vote on by at least three Board members was the Hardship criteria.  He said they went back to Court and on January 22, 2001 the New Hampshire Supreme Court came up with the new Simplex case.  He said in that case the Supreme Court said the unnecessary hardship criteria that the Board has been using was much too restrictive.  Attorney Tamposi said the court remanded this case back to the Board for a hearing just on the necessary hardship criteria but if the Board would like; he will go over the five part criteria.  Mr. Tamposi said he sent a copy of applicant’s submission in support of applicant’s position at rehearing to the Board.  He said it is 18 pages long and does have a copy of the Federal District Court order.  He said there are two questions he would like to address 1) whether the applicant can show hardship under simplex. 2) Whether they are entitled to a variance regardless of that based on the town’s ordinance in light of the Federal Telecommunications Act.  He said if any of those questions are answered in Second Generation’s favor, they should get a variance.

 

Attorney Tamposi described the site location.  He said the site was approximately 90 acres, wooded on Spaulding Hill.  He said their proposal is to build the tower 60’ down from the summit.  He said no abutter would be able to see the first 100’ of the tower or the building near the tower.  Their proposal is for a 250’ tower.  He said the top 150’ you would be able to see from 6 different homes, 4 on Scenic Drive and the other two about ¼ mile away.        

 

Attorney Tamposi stated that Blaine Hopkins who attended previous meetings was not present because he was at another public hearing.  Attorney Tamposi said Mr. Hopkins affidavit and other materials are in the submission.  He said the town’s council took Mr. Hopkins deposition for about four hours. 

 

Tony Wells, a radio frequency engineer was asked to analyze the allowed locations in Pelham as well as the existing structures.  He referenced two propagation maps.  Mr. Wells showed on the map the gap in coverage along route 128.  He said he looked at the existing towers in the area and then added some proposed locations within the allowed zones.  He said even with all those there is still a significant gap along route 128. 

 

Mr. McNamara asked Mr. Wells if he optimized all the existing sites with all of the other carriers.  Mr. Wells said he assumed the carrier could operate at the top of the each location, he said he did not even consider the collocation issue.  Mr. McNamara asked Mr. Wells how he ascertained what equipment each site would have.  Mr. Wells said he referred to what they call a link budget, how much power can you get out of your equipment and what is the minimum receive signal by the mobile.  He said he used the standard link budget, which is 142 dB.  He said a lot of carriers would argue that you couldn’t operate at 142 dB.  Mr. McNamara asked why the narrow gap exists.  Shane Gravel, Optimization Engineer, said that the small hills and any other clutter would cause interference.  Mr. Labonte asked if they had a propagation map on what the status is now on existing coverage.  Mr. Gravel pointed out the existing coverage, the center of town and Route 128.  Mr. Gravel said he believes this is the best site for what they are trying to achieve. 

 

Mr. Hennessey wanted to know why they are asking for a 250’ tower versus a 199’ tower.  He said the town’s regulations require a maximum height of 199’.  Mr. Gravel said he assumes Mr. Notini ran the propagation at several different heights and his submittal of 250’ is probably the minimum allowable to ascertain the coverage objective he was looking to accomplish.  Mr. Gravel also noted that taken into consideration the leases from other carriers, they require 10’ of separation for collocation.  Mr. Sam Tamposi said they have two or three executed leases and ½ a dozen more carriers who are willing to go on once they obtain approval.  He said they feel the extra height will allow a multitude of users for one antenna versus multiple locations elsewhere throughout the town.

 

Mr. McNamara said he presumes there are other sites that may not give them optimal performance but may give them adequate performance.  He asked where those sites might be.  Mr. Gravel said they are trying to make a one-site solution rather than two or three different sites.  Mr. McNamara asked if this was the best site for them.  Mr. Gravel replied that it is.

 

Attorney Tamposi read some excerpts from the submission they gave to the Board.  They referenced the need for coverage along Route 128 and Sherburne Road. 

 

Mr. McNamara asked if they are requesting 250’ because the leases they have required a 250’ tower.  Attorney Shulman said there needs to be 10’ between tenants.  Mr. McNamara asked if they had any scientific or engineering evidence that says that they need 250’ or could they do it at 199’ and have the tenants lower.  Attorney Shulman said if it was indicated that they might be granted a variance conditionally on a lower tower that would be deemed acceptable.  He said he couldn’t say if there would be coverage in that area with a 199’ tower.  He said the higher tower has one benefit to the town and that is increased collocation.  He said the more tenants you can fit on one tower the fewer towers you need. 

 

Mr. Hennessey said under the telecommunications act, they have to provide proof to the Board that there is no coverage on that site.  He said he is looking for documentation that addresses Verizon’s coverage in that area.  Attorney Shulman referenced Paragraph 10c from Mr. Hopkins affidavit.  Mr. Hennessey asked Attorney Shulman if they have any complaints from the general public that says they miss the coverage on Route 128.  Attorney Shulman said no they do not. 

 

Mr. Gleason made reference to Attorney Shulman’s statement that a 199’ tower would be negotiable.  Mr. Gleason said that would be defeating the purpose because portions of that coverage would not be provided with a 199’ tower.  Attorney Tamposi said they might not get all the providers but they would agree to 199’.  He said they might get 4 or 5 on there and find themselves back in front of the Board requesting the additional height.  Mr. Gleason said he has difficulty understanding that they require a 250’ tower in order to provide coverage to that area but are willing to negotiate a 199’ tower.  Attorney Tamposi said they would not be loosing coverage but would be loosing tenants.  Mr. Sam Tamposi said he talked with three providers and they can operate at the 199’ level but there are going to be more providers looking to collocate.  He said they are trying to do something practical.  Attorney Tamposi said they would be willing to reduce the tower to 199’ if the Board would agree.

 

Attorney Tamposi asked the Board if they would like him to go through the five part criteria.  He said he would like to address the hardship criteria first.  Mr. Gleason said it would benefit the Board to hear the five criteria. 

 

1)       Hardship:  Attorney Tamposi said there is an overriding federal policy, which wants a seamless cellular network.  He said they have a 90-acre site in a remote location.  He said there are no available alternate sites that can serve the Route 128 corridor.  Attorney Tamposi said the abutters are not loosing any legal rights.  He said the impact on the abutters would be minimal in light of the great gain by the town.

 

2)       Demunition:  Attorney Tamposi said that an appraisal and Market Analysis was submitted to the Board showing no demunition.

 

3)       Public Interest:  He said the Federal Telecommunications Act is the law and they have to comply with it.  He said they would be providing a cellular communication service to the public.

 

4)       Substantial Justice:  He said by granting the variance will allow the town to be adequately serviced by wireless telecommunication and enable the applicant to make a reasonable use of his land.

 

5)       Zoning Ordinance: He said they had professional engineers testify that the town’s ordinance does not work. 

 

Next, Attorney Tamposi went over the Federal Telecommunications Act.  He said evidence was presented to the Board that shows the Town’s ordinance violates the Federal Telecommunications Act.  He said the Board should not deny them a variance based on an ordinance that does not work. 

 

Mr. Gleason said he believes several subdivisions have been approved in that area and that more than six homes will be affected by this.  Mr. Clay Mitchell, Interim Planning Director confirmed that there is an extension of a current subdivision south of Sherburne Road.  Also, there are about 45 homes total in that area pending.  Mr. Gleason said he is questioning demunition of value on new construction.  He said a Broker has to have a mandatory disclosure stating that there is going to be a tower in that area.  He asked if Mr. Tamposi would argue that there would be no demunition on new construction.  Attorney Tamposi said he does not think there would be any demunition at all. 

 

Mr. Kosik asked if there were any persons present who wished to speak in favor of the tower.  There was no response.  Mr. Kosik asked if there was any person present who wished to speak in opposition of the tower. 

 

Attorney Grant Kidd appeared before the Board representing abutter Mr. James Bundock of 20 Scenic View Drive.  Attorney Kidd handed out documentation to the Board.  He referenced the five-part criteria memorandum.  He stated that it is important for the Board to consider the five part criteria.  

 

Substantial Justice:  Attorney Kidd stated that he does not believe that the variance would do substantial justice.  He said it would be an economic windfall for the applicant.  He asked if it was substantial justice to allow the applicant a windfall at the expense of the individuals that have built conforming, bought conforming and live by conforming of the zone.

 

Public Interest:  He said the legislative body amended the town’s prior ordinance.  He said the prior ordinance allowed towers in any location with a special acception.  He said the legislative body eliminated that.  Also, there is a tower limit of 199’, they are asking for 250’.  He said there might be areas in town where only one variance would be required to get coverage in that area.  Attorney Kidd said they are seeking two variances to accomplish their tasks. 

 

Unnecessary Hardship:  Attorney Kidd read the hardship criteria that stated;  the zoning restrictions apply to the property interferes with the owner’s reasonable use of the property considering the unique setting of the property and its environment.  He said that if you look at the area, it is purely residential.  There are no convenience stores, there are no cell towers on the ridges, and there are only single residential homes.  He said that is what is unique about that area, it is pure.

 

Next, Attorney Kidd read from the language in the wireless ordinance that stated; avoid any adverse impact    9:13

 

Next, Attorney Kidd said he would like to briefly discuss the Federal case law on this issue.  He said Attorney Tamposi and his team is focusing more on this than the variance issue.  Attorney Kidd referenced a case in the third circuit Omnipoint vs. the Town of Newton.  9:16

 

Mr. LaBonte asked Attorney Kidd if Mr. Bundock was a direct abutter.  Attorney Kidd said that Mr. Bundock is a visual abutter who was recognized in Superior Court in the last appeal.   9:23

 

Mr. Jim Bundock, 20 Scenic View Drive said he hoped the Board was careful to remember who was saying what.  He said there was expert testimony given and then testimony given by non-experts.  He quoted Mr. Jim Tamposi’s statement that without a tower on Spaulding Hill, it would be impossible for good telecommunications.  He said Mr. Wells and the other experts know that there is more than one solution to the problem.  He also disputes the fact that a Lawyer testified that signals couldn’t go over hills.  Mr. Bundock described the knife effect that allows signals to get over obstructions.  Mr. Bundock went on to describe his credentials in the art of electrical engineering.

 

Mr. LaBonte referenced a statement made by Mr. Bundock, through his Attorney, that it would probably be a better place for the tower on Jeremy Hill.  Mr. Bundock compared the two neighborhoods as one consisting of trees and houses and the other already having the burden of visual blight of some towers.  He said that if you grant a variance for Spaulding Hill and deny the variance on Jeremy Hill, you are inviting a discrimination case from Sprint for violating the Telecommunications Act.  

 

Ms. Caroline Carter, 19 Nicholas Drive, said she though that she read in the remand that Sprint preferred the Jeremy Hill site.  She mentioned that Attorney Kidd mentioned a good idea of putting the cellular antennas on telephone poles going down 128.  She said she has a Nextel phone and has no problem using it going down Sherburne Road. 

 

Mr. David Parola, 26 Scenic View Drive, said the town voted at town meeting that controlled communication towers.  He said this is a residential area.  He has lived at his home for the past 25 years.  He said the majority of people in pelham voted for this ordinance.  He said he does not have a problem with his cell phone on Sherburne Road.  He wants to know how the tower is going to benefit him.  He said it is not, he is going to have to look at it.  He said the Board was right in their past decision.  He said the Board should vote the same way again, it is the only way and the right way.

 

Mr. Michael Soby, 9 Marie Avenue said that where the tower is going to be placed, there are still going to be areas not covered.  He said there is still going to be geographic terrain that is going to impact this.  He also mentioned that he has no problems using his cell phone at home where he conducts his business.  He also referenced the safety issues with using cellular phones while driving.   He said he does not believe the five part criteria have been met and he hopes the Board does the right thing to support the Town of Pelham.

 

Ms. Holly Saurman, 6 Scenic View Drive said aside from all the legal and technical talk, Attorney Kidd enlightened her to something she had never given consideration to before and that was that entire area is pure.  She said Scenic View Drive has no telephone poles and no streetlights.  She said she hopes the Board is not going to bow to Second Generation based on their suggestion that an unfavorable vote will be followed by a law suit that is going to cost the town money.  Ms. Saurman said that in the past she has been very vocal on the rights of individuals to use their land.  She said Second Generation and the Tamposi family have the right to use their land and to gain financially from the use of that land but not at the expense of the surrounding homes and the homes that are going to be developed in that area. 

 

Attorney Tamposi came back before the Board to discuss some of the issues brought up by the opposition.  He said first of all, they are referring to a telecommunications tower as a commercial use.  He said just because they are proposing to put the telecommunications tower in a residential zone doesn’t mean it is a commercial use.  He said this is not a store; there is no parking area or signage directly customers up there.  He does not consider this a commercial use.  Next, Attorney Tamposi wanted to address the Public Interest and Substantial Justice criteria that Attorney Kidd said they failed to prove.  He said the Public Interest and Substantial Justice of the town are served by having an ordinance that works.  He said the current ordinance does not work.  The ordinance states that telecommunications are allowed only in the commercial and industrial zones downtown.  He said Second Generation has hired professional engineers that say you need towers on the higher hills in order to avoid having gaps in coverage and those hills happen to be in a residential zone.  He went on to say that this is the only way the ordinance is going to work for the town otherwise there is going to be a gap in coverage.  Next, Attorney Tamposi referenced the materials presented by Attorney Kidd regarding the Newton case.  He read an excerpt that said Omnipoint presented evidence that they had a gap in coverage within Newton, Newton argued that a significant gap means a gap in service as to all wireless service not just Omnipoint.  He said Second Generation has presented evidence to the Board that none of the carriers will have service in that area.   He stated that Voicestream, Cellularone, Verizon, US Cellular, and Sprint PCS all experience this gap in coverage.  He said Nextel Communications utilizes a specialized Mobile radio.  He said they are the only ones they do not know about but it is a different kind of coverage.  He said Nextel did approach Sam Tamposi and they are willing to locate on this tower if he gets approval.  He said there are six out of six that have a gap in coverage and are willing to locate on this tower. 

 

Mr. Hennessey asked to explore the significant gap issue.  He addressed Attorney Tamposi as quoting a citation that said a gap constitutes a significant gap whether a gap constitutes a significant gap depends not only on its physical size but also on the number of customers affected by that gap.  He said Attorney Tamposi goes on to quote a quote by saying while wireless service is a use while in transit, a gap that straddles a heavily traveled commuter thoroughfare would be more significant than a gap that affects a small residential cul-de-sac.  Mr. Hennessey stated that in the past 12 months there has been a nationwide campaign to stop people from using mobile phones while in an automobile.  He said that at least two statewide jurisdictions have eliminated that use.  He asked Attorney Tamposi if he thought that might affect future rulings.  Attorney Shulman responded by saying that he agrees with Mr. Hennessey that there are going to be different use patterns.  He went on to say that there are going to be some instances such as if you break down, if you have a passenger, etc.  He said it is in the very nature of mobile phone that if there is not service on a cul-de-sac that may be a gap, but it is not a gap that federal law cares about.  He said if four houses don’t have cellular service, which is not considered a significant gap.  He said on the other hand, Route 93 that would be a terrible significant gap.  He asked if Route 128, 10,000 cars a day a significant gap.  He said if it is then he thinks that this ordinance has a great deal of trouble if provision is not made.  Mr. Hennessey said the court talks about the physical size of the gap and the number of customers affected.  He said that Second Generations experts testified that the physical gap involved in this case is relatively small.  He asked Attorney Shulman if he thinks this testimony affects the Boards perception of how much of a gap they really have here.  He asked Attorney Shulman if he acknowledges the differences between the gaps on Route 128 and the gap on Route 93.  Attorney Shulman said absolutely.  Next, Mr. Hennessey asked Attorney Shulman if he thinks that the Board of Adjustment could make a determination as to what a significant gap is.   Attorney Shulman said not only does he think the Board can, but also the Board must take the first stab at it.  He said when you are enforcing an ordinance you have to do so mindful of state and federal law, constitutional law and statutory law. 

 

Mr. McNamara said he had a question that he believes should be addressed by one of Second Generations experts.  He said Attorney Kidd raised a point of putting a large tower in the industrial zone and Mr. Bundock mentioned putting receivers and multiple antennas on various poles.  He asked that if these options were not feasible, to please explain to the Board why.  Mr. Gravel replied that the industrial zone was too far away and he was not familiar with putting sites on poles.  He said he could explain with his experience that you would need various different locations along telephone poles.  He said it is not something they practice and he does not know if it would even pass the FCC regulations. 

 

Attorney Tamposi said he would like to offer the Board to take their time to digest all the information and they would be willing to come back at a later time so that the Board would not feel rushed into making a decision.  

 

Attorney Kidd asked where is the complaints.  He said Second Generation has provided no proof of complaints.  He said each time Second Generation has come before the Board, it has been with the same location.  He said he does not believe that there are no sites along the 128 corridor where they could work to fill the gap.  He said they have not looked at all the reasonable alternatives.  He said there was no testimony heard that they looked at reasonable alternatives by the experts.  In closing Attorney Kidd stated that they have not met their burden.

 

Ms. Saurman said she has a Nextel phone that she uses at her home for personal and business use with no interruptions.  She said in all the testimonies heard, there was never any mention of any other possible uses for that parcel of land. 

Ms. Carter said she would be in favor of this site only if Second Generation has shown they have exhausted all of their options.  She said the money from the tower could be used for the school system.

 

Mr. Kosik announced that this part of the hearing is closed and all comments from the floor would be disallowed while the Board discusses the appeal just heard.

 

Mr. LaPolice said that with regard to the simplex case, he does not think it is applicable here.  He went on to say that there was testimony giving that there clearly is coverage on 128.  He said they did not hear complaints that there was no coverage or lack of coverage on 128.  He said while he is not a voting member this evening, he would deny this variance based on those two points.

 

Mr. Hennessey suggested adopting Attorney Tamposi’s structure that in addition to the normal 5 criteria on the hardship they do address the telecommunications act.  He said it should be considered.

 

Mr. Gleason said he would prefer to stick with the remand of the court.  He said he would refer to town council.

 

Attorney Gorrow responded that one of the circuit courts said the Zoning Board in the first instance, needs to make a stab as to what a significant gap is.  She said it is beyond their expertise to make a decision on whether or not the ordinance or the denial of a variance would prohibit telecommunication services.  She said she does not think they should make the legal conclusion.

 

Mr. Hennessey said he thinks they can use their own knowledge on the testimony they heard.  Mr. LaBonte said he agrees with Mr. Hennessey.  He said they are looking at the evidence Second Generation presented to show whether or not there is a gap.  Mr. LaBonte said he has a problem with determine whether or not the town’s ordinance as it is today is legitimate under the act.  He thinks that is for the legislative body to determine at town meeting.

 

Mr. Kosik said he thinks the Board should do what the court remanded them to.  Mr. Gleason asked if they would be within their right to review the five criteria.  Mr. Kosik said he thinks they should review the five criteria.  Mr. Gleason said he thinks the Board has heard sufficient testimony to address the issues relative to hardship.  He said either you have an opinion or not.  He said his preference is to vote on it tonight. 

 

Mr. Clay Mitchell, Interim Planning Director, brought up some issues that should be clarified.  He questioned whether the towers on Merrill Hill in Hudson were used as potential collocation.  He said they are closer to the site.  His second question was whether the 10’ separation was from the center or the edge of the antenna.  He said that was a significant difference in width.  Next, he referenced Mr. Well’s affidavit that states hand radio towers cannot support the antenna.  He said Sprint made a reasonable argument that the ordinance provides for the replacement of a structure and what the Board denied was they were not only replacing the structure but also increasing the height. He said he does not think it is a fair assumption to rule out hand towers.  He suggested that the Board take a look at the traffic counts.  He said the traffic counts from 128 northbound which they are saying is 10,000, is a location between 128 and Sherburne Road and where 111A branches off.  He said if you look at the other counts on 128 North, the counts drop to 4,000 – 5,000 between that area and the Windham town line.   He said that if you look at some of the propagation studies the town received from other cell companies, it looks like that area has been covered by existing towers.  He said there has been a lot of talk about visual impact.  He said you can’t really tell what a visual impact is unless you see some kind of representation of what the visual impact is going to be.  He said there are companies who do just that.

 

Mr. Hennessey said he is not sure if it is appropriate to consider alternate sites if they are not currently allowed by the zoning.  He said he is going to restrict his vote on what is currently allowed by the law and the ordinance.  He stated that he is not going to consider the fact that they did not use other sites that aren’t allowed under the current zoning ordinance.

 

Mr. Hennessey made a motion that the Board cast a vote tonight.

 

 

 

 

 

 

 

 

McNamara

Hennessey

Gleason

Kosik

LaBonte

Demunition

 

Yes

No

Yes

Yes

Yes

Public Interest

 

Yes

No

No

Yes

Yes

Unnecessary Hardship

 

Yes

 

No

No

No

No

 

Substantial Justice

 

Yes

No

No

No

No

 

 

 

 

 

 

 

Spirit of Ordinance

 

Yes

No

No

No

No

 

 

 

 

 

 

 

 

 

VARIANCE DENIED

 

 

 

MOTION:              (Gleason/McNamara)  To adjourn the meeting.

 

VOTE:                    (6-0-0)  The motion carries.

 

The meeting was adjourned at approximately 10:30 p.m.

 

 

 

 

                                                                                                                                Respectfully submitted,

 

 

                                                                                                                                Charmaine M. Goyette

                                                                                                                                Recording Secretary