APPROVED

 

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

February 11, 2013

 

The Chairman David Hennessey called the meeting to order at approximately 7:00 pm.

 

The Secretary Robert Molloy called roll:

 

PRESENT:

 

 

ABSENT:

David Hennessey, Svetlana Paliy, Robert Molloy, Peter McNamara, Planning Director/Zoning Administrator Jeff Gowan

 

Kevin OíSullivan, Alternate Chris LaFrance, Alternate Lance Ouellette, Alternate Pauline Guay

 

CONTINUED:

 

Case #ZO2013-00002

RAYTHEON COMPANY -50 Bush Hill Road -Map 20 Lot 3-137 Ė Seeking a Variance concerning Article III Section 307-8 (C) of the Zoning Ordinance to permit the construction ofnew mechanical & electric buildings, new retaining wall, new concrete pads at grade, additional underground power service.Associated scope of work shall include new bituminous pavement driveway, temporary crushed stone construction access road installation of new equipment trailers and electrical power wiring for equipment units under test (ĎUUTísí); all per the accompanying plans c1.0 and c1.1

 

Mr. Hennessey commented that since the last meeting the Board had received a revised application from the Raytheon Company, among which was a new paper relating to the five variance criteria. He confirmed with Mr. Paul DeCarolis that he had received the revised information.Mr. DeCarolis, a member of the public speaking in opposition during the last hearing, had offered testimony and did a thorough job talking about some of the issues.Mr. DeCarolis was present for the meeting and told the Board he had received a copy of the new information.

Attorney Edmund Boutin ofBoutin, Altieri, P.L.L.C, came forward to discuss the Variance request.He told the Board of his experience with land use issues.He provided the Board with an indexed copy of the records of submissions from Raytheon up until the present.In preparation for the meeting Attorney Boutin examined aerial photographs of the area and some of the subdivisions around the area that appear to have arisen since 1968.He said he looked at the property, but had not walked it.In the past he was a Corporate Counsel for Sanders, therefore he was familiar with what Raytheon was doing on the parcel (radar ranges and testing facilities). He was also familiar with the experts that deal with these areas.

 

Attorney Boutin commented that the parcel contained approximately fifty acres, of which approximately 11% was presently in use.With the proposed improvements, the parcels use would increase to just shy of 15% of the total acreage.The remainder of the parcel will remain in a relatively natural state.†† Attorney Boutin said the on-site activity was testing of radar antennas.This involves intermittent testing sometimes lasting hours, sometimes less.There are two hills on the property both of which have facilities for testing.Usually the equipment is brought onto the property and requires cooling and power.Most of the operating environment/noise that might be generated is from that cooling and powering.Raytheon has tried over the years to be considerate of its neighbors.A big part of the proposal is to mitigate noise through having additional enclosures.Attorney Boutin stated there were no weapons or missiles on the property; there was a markup of such used to judge the mass and balance the antennae.

 

The property has received four variances in the past; three of the four were under the law that existed at the time the variance was granted, which was much more severe than the laws that exist now.Attorney Boutin noted that the Supreme Court and now the Legislature had essentially said the old test (for variance) was too stringent; the test for no economical viable use of property was impossible to meet.Beginning with the Simplex case a standard was adopted that redefined the hardship requirement.The variance test still had five points, but the hardship has essentially been redefined.The courts recognized that the other parts of the test circled each other.Attorney Boutin said the arguments used in the criteria for not being contrary to the public interest were also argued in the spirit of the ordinance being observed.He noted it wasnít the burden of the applicant to prove that something wasnít in the public interest, but rather the burden was to prove that it wasnít contrary to the public interest.He said the test for the spirit of the ordinance requires that there be an understanding of what the spirit of the ordinance was in the first place.He said in both of the tests itís crucial to know that the place (Raytheon site) began with a variance in 1968 and because of this, Raytheon has made a substantial investment in the community and continued to do so for over forty years.He commented that the variances that followed recognized that the two elements for variance were met.Attorney Boutin stated he examined the entire record before the Board and could find no evidence that the variance was not contrary to the public interest and found no evidence that the spirit of the ordinance was not observed.The term Ďevidenceí related to facts, not conjecture (speculation).He said with radar there is a lot of conjectural information.He noted the record for the present case, there was an expert in RF radiation who would discuss the facts and point out that there would be substantially less than applicable Federal Standards and no one at the property line would notice.†† With regard to noise, a recognized expert presented evidence that there would be no noise at the boundary of the property that would create a noticeable/substantial difference.Attorney Boutin believed when one is considering whether something is contrary to the public interest, the ordinance talks to this being a low density area; the use of the site was at approximately 15%.He continued to discuss the general purpose of the ordinance.†† At to street congestion, he hadnít heard that the Raytheon facility had caused any street congestion, however a residential subdivision on 50-acres would considerably cause congestion.With most of the property remaining in its natural state, it fell in line with the purpose for providing light and air.

 

Mr. Hennessey explained to the public at the last meeting the Board offered to put the hearing off because they only had four members present (the applicant decided to proceed).He said he didnít extend that offer at the present meeting because it was implied from the last meeting that if the Board didnít have more than four members they would continue.He reiterated three members must vote in the affirmative (for the variance to be granted).

 

Attorney Boutin continued to review the ordinanceís general purposes.The proposed use avoided population concentration.To the point of conserving property values, he said the evidence was that since the facility had been there, there were several subdivisions abutting it.There was no evidence (offered for the record now, or during prior proceedings) that property values in those subdivisions have been altered or damaged.To the point of substantial justice being done, he said any loss of the applicant that was not outweighed by a gain to the general public was an injustice.He commented if Raytheon, after its forty-year investment into the community and property was deprived of the future expansion of the property as proposed, it would be an injustice to Raytheon.The remaining question was if there would be a gain to the general public.He offered that there had been no testimony there was a gain to the general public by denial of the variance.He said if the area were to become a subdivision it wouldnít be much of one given the topography and ledge.He didnít know of a town that had the desire for more single family residences given the costs and demand for services. He said Raytheon provided a substantial benefit to the Town in terms of jobs, economic activity and property taxes.The proposed new facilities will cost in excess of $350,000.Attorney Boutin reiterated that there was no evidence that the values of surrounding properties would be diminished.He said there was evidence in terms of the development of surrounding property.The distance of the nearest property from the new (proposed) area was approximately 700ft.A Google aerial map was provided to the Board which showed the location of the nearest properties.

 

Attorney Boutin commented that they had complied with the conditions by the Planning Board and received a letter from the Planning Boardís consultant indicating those conditions had been met.He reiterated that the issue of diminution of value wasnít there or on record.He didnít feel the Townís Assessor would tell the Board that the property values would be higher if Raytheon wasnít in their location.He then addressed the Simplex standard for hardship.†† He said the central issue in the modern law of hardship questioned if the ordinance interfered with a reasonable use of the property.He didnít feel there was a question as to the reasonable use of the property, given that Raytheon had been in Town for approximately forty years, and nothing was changing about the use of the property.In considering the uniqueness of the property and its environment, part of its uniqueness was the forty year history.The other part was the topography and slopes.Modern zoning ordinances continually restrict the ability to develop sloped land, particularly property in excess of 20% of slope; there are also restrictions because of drainage and terrain alteration and local blasting regulations.The properties around the applicantí parcel appear to be forested and have milder topography, although had some difficulty during development.Attorney Boutin told the Board that the two hills on the applicantís property were unique in that they afford unobstructed air space for testing the radars that donít allow for downward sloping impacts.Without those hills, the facility might not have been there.He addressed the second portion of the Simplex test and noted the proposed was not inconsistent with the general purpose of the ordinance.He said the Town picked up the use of the parcel as being residential, however, once it was developed for this (Raytheonís) use, clearly it became something else.If compared to the general purpose of the ordinance, it complies and does not do any injustice.Attorney Boutin believed hardship had been demonstrated given the uniqueness of the property and given that the existing and proposed use are reasonable.They have demonstrated with evidence that there should be no impacts at the property line.Raytheon is adhering to standards far in excess toFederal Standards(both the EPA and FCC) and under those circumstances there is no evidence that anyone can point to that the property is not eligible for the variance.He said comparison of the site to White Sands was brought forward.He commented that White Sands was an active missile range.

 

Mr. Hennessey polled the Board members to determine if they felt the (revised) variance criteria needed to be read into the records.The Board members didnít feel it necessary.Mr. Hennessey asked if there were any members of the public that would like a copy of the documents submitted since they would not be read into the record.No one came forward.It was noted that the documents would become part of the record.

 

Mr. McNamara asked if there were any precautions taken by the employees when testing occurs.

 

Mr. Michael Phillips, President, GMA Architects & Engineers, P.C replied when the units were radiating, there is an off-limits zone in front of the units; there are warning beacons and horns that sound.Everyone is restricted from certain areas that could come close to the radiation zone.Mr. McNamara questioned how far down field (the zone0 extended.†† Mr. Phillips showed a photograph slide that indicated the location of a proposed 8ft. in height fence.That location was deemed an area that was sufficiently far enough away from the radiation points of the units.Property boundaries and residents were located farther away from the highlighted area.Attorney Boutin noted that the units were directional and wouldnít be rotating or sending beams in other locations.

 

Mr. Molloy wanted to know why new fencing was being proposed.†† Mr. Phillips explained that part of the new system going onto the property was had a centerline access of radiation orientated in a path 235degrees from due north with a spread beam up in the air.The location of the fence was a distance far enough away to create a security zone.Should anyone wander into the property, the intent was to keep them from going beyond that limitation.Attorney Boutin said from Raytheonís point of view the fence limitation was so people didnít steal technology.

 

Mr. Hennessey opened the discussion to the public.

 

PUBLIC INPUT

 

Mr. Richard Anderson, 110 Bush Hill Road came forward and told the Board he had three concerns about expansion: 1) noise, 2) water, and 3) emissions.He said currently he could hear some noise at different times, possibly from a generator.He said they have noise from helicopter traffic and suspected it was a result of the testing.He explained that he was an Air Force Officer for twenty three years and air craft maintenance experience.With regard to water, he was concerned with solid matter, water and chemicals being disposed of by Raytheon.Drainage would run downhill into a marsh, and that marsh ultimately ran onto his property where a big portion of the marsh was located.He didnít want to see anything happen that would destroy the wildlife or create problems with nearby wells.Mr. Anderson said there were light emissions, mostly in the winter when the leaves were off the trees.He understood the proposal would clear cut an additional area to the West, which would bring the development closer to his home and possibly add more light coming in.Mr. Anderson was concerned with radiation exposure.He said there may be radio and television waves.At times the picture on his television screen would vibrate, although he didnít know if that was associated with Raytheon. ††He ended by telling the Board he considered Raytheon a decent neighbor in their current configuration, but was worried about an expansion.He said to his knowledge Raytheon had never invited people in the surrounding area to visit their plant and show them the facilities and explain what they did.He realized it was a classified area, but recalled when he was in the Air Force, they would neutralize areas so people could access them without gathering any information.He said when people donít know whatís going on they become more concerned about what might happen.

 

Mr. Hennessey asked if the noise level would increase beyond what Raytheon was doing now.Attorney Boutin understood that there would be no increase.Mr. Hennessey questioned if there would be an increase in helicopter traffic.Attorney Boutinstated there were no helicopters associated with the facility or its use; Raytheon doesnít have helicopter traffic, or contract for helicopter traffic, or use helicopters associated with the facility.Mr. Hennessey was aware of a Black Hawk helicopter that went around Pelham.Attorney Boutin reiterated there was no helicopter associated with the facility.Mr. Hennessey asked if the waste water was treated.Attorney Boutin said the facility was served by porta-potties.Mr. Phillips said there was a septic discharge (subsurface sanitary leaching field) located to the east of the site set up for in-house toilets.It was set up in accordance with the regulations.Since the inception of the Hawk Hill site (area being discussed) there has been no running water or permanent waste facilities.Drinking water and water used for hand washing is contained in coolers.Portable toilets have been and continue to be used in that location.These are self-contained units that are evacuated by an exterior contractor.

 

Mr. McNamara asked if there were any by-products or waste products of the testing that are stored or contained on site.Mr. Phillips answered no.

 

Mr. Phillips addressed the question regarding drainage. He said they had thoroughly reviewed the proposal with Steve Keach of Keach Nordstrom (Planning Boardís engineering review firm).He said the existing topography was quite steep, sometimes in excess of 20%.They were located at the peak (elevation 428).At 1ft-1.5ft below the existing grade (varying at spots) there is a solid continuous body of ledge and bedrock situation that virtually renders the site into an impervious site.†† Mr. Phillips said they had a deep grounding well (water source) they put in to provide ground for equipment that went down approximately 350ft.There was no ground water they were affecting.Attorney Boutin questioned if Mr. Phillips or Mr. Keach identified any off-site drainage issues.Mr. Phillips answered no.He said they reviewed the property and with the method of the proposed gradation and materials would allow for a non-increase rate of runoff on the site, to its perimeter, marshes or abutting properties.

 

Mr. Hennessey said the Board had on record a statement regarding the radiation and safety zone.He questioned if testing would affect television reception or the neighbors by creating power fluctuations.Mr. Phil VanSteensburg, Raytheon lead for the Pelham test site and Pelham resident came forward to address the power usage off the grid.He said they looked into the power usage off of the grid and the power company has given them no indication that thereís a problem with power.Mr. Hennessey said a comment was made regarding light emissions. If the variance is granted thatís an issue that the Planning Board would address.

 

Ms. Denise Oujaimi, 54 Bush Hill Road, located directly next door to the site, told the Board there was evidence of noise because she heard it.She was concerned about additional building because that noise would become more of a problem and issue.She said bright lights infringed on their property.She was concerned with the future property values and believed continuing to build in the residential neighborhood would affect their ability to sell in the future.Ms. Oujaimi understood the comment that the radiation was less than the amount emitted from a cell phone, but questioned the effects from use over a prolonged period of time.She told the Board she had been an oncology social worker, working with the Cancer Society of America, and tracked the areas showing the influxes and types of cancer.They kept track of the surges and companies in those areas.She was concerned about there being an influx of cancer in the area because of radiation poisoning from the continued use of the radar.She told the Board of her concern for digging underground and putting electrical cables due to the unknowns to well water and the environment.She said there was mention about tree cutting which she pointed out would decrease the buffer and contribute to additional noise and light emissions.Ms. Oujaimi expressed her concerns for children accessing the site and becoming exposed to radiation.She was uncomfortable having radar tested in her back yard.She hoped the Board considered her concerns in their vote and they wouldnít grant the variance.She said if they continued, the area would be not so much residential, but would be a commercial area.

 

Ms. Paliy asked Ms. Oujaimi if her trees were healthy.Ms. Oujaimi said some were, some were not.Ms. Paliy asked if the vegetation around the facility was healthy.Ms. Oujaimi didnít know;she didnít walk toward Raytheonís facility because she was afraid to. She said there were trees in her own back yard that had signs indicating she couldnít cut them down and found it interesting that Raytheon could cut their trees.Mr. Hennessey asked if she had wetlands.Ms. Oujaimi answered yes; there were wetlands behind her property.Mr. Hennessey explained in Pelham if property had wetlands the signs for the buffer were required as the subdivision went in.

 

Mr. McNamara asked the applicant if they had any issues with trespassing in the past.Mr. Joseph Croteau, Engineer and Project Manager for Raytheon Company told the Board said to his knowledge there had been no issues.Mr. McNamara questioned if there was some kind of security force that patrolled the area.Mr. Croteau answered yes; there was guard coverage 24hrs/7 days per week.The site is patrolled.The property is fenced in with barbed wire and has security cameras.†† Mr. VanSteensburg commented that he had been the site lead for over eleven years and involved with the activities on the site.There had been no intruders (or children) coming over the fence.They had some issues with hunters and guns being discharged by the property.Mr. McNamara understood the testimony regarding the uniqueness of the property was because of the height providing a clear view.He asked if Raytheon could build on other areas of the property (specifically lower down the hill) to do what was presently being proposed.Mr. Phillips and Mr. Croteau both answered no.Mr. McNamara asked if it was feasible to do any kind of radar testing in the large uninhabited area.Mr. Croteau answered no and explained they needed the look angle into space.Mr. Phillips commented that they were located at the farthest point away from abutters, if they were to come down the property it would move them closer to the abutters.

 

Attorney Boutin called the Boardís attention to the RF report.He read a portion aloud which indicated the type of RF radiation emitted by Raytheon radar was non-ionizing radiation.Primary health risks associated with non-ionizing radiation at levels much greater than the exposure limit was tissue heating.Non-ionizing radiation is not accumulative or carcinogenic.Long exposure to very low levels is not associated with health risks.

 

Ms. Oujaimi pointed out the location of her property on a map that was displayed.She told the Board she didnít think children were jumping over the fence, but were going up to the property.She questioned if the children were safe coming up close to the property if the workers on the property were wearing protective gear.She said the children that had gone up to the property and shared with her what they saw.

 

Ms. Chantal Oujaimi, 54 Bush Hill Road told the Board that two of her friends that were from out of Town and not familiar with the area went up to the fence.She asked what tests were done to determine the amount of radiation and noise.Mr. Hennessey said the Board was provided with a radiation report for the record that was done by an engineer.Mr. Croteau explained they had RF meters and the ability to measure radio frequencies.He said the levels (of radiation) were undetectable (below the 1/10,000 of the power) at the perimeter of the property. Ms. Oujaimi told the Board she and her brother noticed a decrease in the turtle and frog population in recent years.Mr. Hennessey said the anecdotal evidence was problematic for the Board (see below for further discussion of this point)

 

Ms. Martha Anderson, 110 Bush Hill Road added to her husbandís comments.She wanted to know how many structures would be built.Her concern was additional water runoff into the wetland land as a result of the tree cutting that would lead to her property.She said a rise in water levels had a direct bearing and effect on her septic system and causing a major problem.Ms. Anderson asked if radiation directly affected water.With regard to the noise issue, she said they already heard noise and at times itís a pulsating hum (frequencies rising and falling).She reiterated that her major concern was water runoff.

 

Mr. Hennessey asked the applicant to summarize the information discussed at the previous meeting (joint hearing with the Planning Board, February 4, 2013) so members of the public who werenít at that hearing could understand the proposal.Mr. Phillips displayed photographic slide of the site outlining the proposed location of the 20ft clearing where a fence would be erected.There will be a 50ft. strip of trees cleared along the existing tree line (toward the inner portion of the site closest to the Units Under Test (ďUUTí).The reason for this clearing was the tops of the trees would potentially interfere with the sensitivity of the radar look angle.Mr. Phillips discussed the structures and concrete pads to be added to the facility and their purpose, which would be located at the north property line.He showed the area that a temporary crushed stone access way would be added; there was no material that would exit the site and go over the Townís roadways.

 

Mr. Hennessey went back to Ms. Oujaimiís question regarding frogs and turtles and asked the applicant if they were aware of any decrease in those species or others or aware of anything that would cause a decline.Mr. Croteau said the weather (dry conditions) would cause a decrease.

 

Mr. McNamara asked if Raytheon would be using the existing facilities at the same time they would use the proposed new facilities.Mr. Croteau answered yes.Mr. McNamara asked if they would be testing two different products, or just the proposed product.Mr. Croteau said it would be two different products.Mr. McNamara questioned if the report from Air & Noise Compliance took into account that two products would be tested.Mr. Croteau answered yes.

 

Mr. Molloy wanted to know if the proposed new structures would be able to be viewed from Bush Hill Road.Mr. Phillips answered no; in plan they would be approximately 20ft.x30ft and 12ft in height off grade.Mr. Molloy asked if Sky View would see the structures.Mr. Phillips answered no; there was approximately 700ft. forested area between the site and Sky View.

 

Mr. Hennessey asked if there was anything being done on site that would cause an increase of radiation in the water supply/area ground water.Mr. Phillips answered no.Mr. Hennessey commented he was aware of some rather high radon and uranium levels in some of the water in Town that had nothing to do with Raytheon.He told the public that water should be tested for radon and uranium in the Town.He also noted that lighting (light bleed) was more appropriate for the Planning Board.He said if the variance was granted the applicant would go in front of the Planning Board who would talk about the site.

 

Mr. Paul DeCarolis, 148 Bush Hill Road stated he was opposed to the application and asked the Board to vote against the variance.He said he wouldnít repeat the arguments made at the previous meeting (February 4, 2013), but wanted to respond to the revised application submitted.

 

Mr. Hennessey explained for those who didnít see the previous meeting that Mr. DeCarolis went through a lengthy exploration of the deficiencies of the application.He said in fairness, because the Board basically had a new application, he would be lenient with Mr. DeCarolis and allow him to take whatever time he needed to go through the revision.

 

Mr. DeCarolis said the applicant addressed the criteria that the proposal not be contrary to the public interest.He found it interesting that that the Farrar v. City of Keene case was cited.He said at the last hearing he mentioned there were some commercial uses that were not completely incompatible with residential uses, such as office space.He explained that the Farrar case involved an old historical building and office space was being proposed to be put in it.He said the court said that there could be office space that didnít violate the spirit and intent of the ordinance and wasnít necessarily against public interest because it could be compatible.That was not the case with the proposal.Mr. DeCarolis said the applicant indicated the proposed wouldnít alter the central character of the locality.†† He said theyíre trying to say that the central character of the locality was an industrial use because the Town allowed it to be an industrial use through variance.Further a variance wouldnít significantly change the industrial use permitted by variance, which he didnít feel was the proper criteria.He felt the criteria was if the proposed would alter the central character of the locality, meaning the residential zone.He said it was apparent from the application and testimony that there was no other commercial or industrial use anywhere near the property other than the applicantís piece.He said the character of the locality was residential, exactly what it was zoned.

 

Mr. DeCarolis said no one was asking that Raytheon be shut down.They have enjoyed the use of the property for the past forty years and were granted variances in 1968, 1980, 2001 and 2007.All of the previous approvals would remain.Denial wouldnít change the character, it would keep the status quo.However, each time an expansion is allowed by variance, it changes the character of the locality.The proposal was to remove a 70ft. strip of buffer (20ft along the fence and 50ft. near the site) all facing the westerly side of the property and in the area where he, Ms. Oujaimi and the Andersonís had complained about the noise.He said even if no additional noise is generated from the site it would be impossible for there to be a reduction, or it wouldnít be increased because that 70ft. of buffer of natural trees is being removed.He said the applicant had been allowed to change the locality through the last four variances and at some point the Town has to say enough is enough regarding expansion.Mr. DeCarolis said in regard to the variance threatening public health, safety and welfare; it was obvious that the radio frequencies were a fear, but the Town wasnít able to really verify it.He said the radio frequencies of the type of equipment approved with past variances probably didnít contemplate the new equipment.He said health, safety and welfare was more than just radio frequency concerns.The other issues affecting this are noise, light emissions, truck traffic, alarms etc.

 

Mr. Hennessey didnít recall testimony regarding alarms going off.†† Mr. DeCarolis said he had heard some sort of alarms but didnít know what it was until the present meeting.He said through the applicantís testimony he found outwhen the units are radiating thereís an alarm that goes off.

 

Mr. DeCarolis discussed the spirit of the ordinance and reviewed the language pertaining to the residential district.He didnít feel any of the purposes listed were fostered by the granting of the requested variance and allowing industrial use was completely inconsistent with the ordinance.Mr. DeCarolis read the applicantís statement that the use would be consistent with the prior use was not the standard.He said being consistent with a previous variance was not the standard; ††the proposed expansion would need to be compared to the residential zone that they were in.He said the applicant gave as evidence that the spirit of the ordinance was being observed was there would be no significant clearing on site would occur.He felt the total of a 70ft. wide strip was a significant clearing.

 

In regard to the fourth criteria, the value of surrounding properties shall not be diminished, Mr. DeCarolis said the applicant didnít offer any expert opinion.He didnít think they were required to and agreed with the applicant that the Board could draw upon their own experience.He believed the applicantís testimony underscored it was obvious that the continuation of the expansion (granting of the variance) would affect surrounding property values.He said if any abutter were to sell their property they would need to sign a disclosure; it was inconceivable property values wouldnít be affected when a buyer is told not to worry because Raytheon has a fence with barbed wire and thereís a safety zone no one is allowed to enter because they are radiating radar .He said he wasnít qualified to say to what amount, but the standard was to any amount.††

 

Mr. DeCarolis told the Board that the arguments he made was post-Simplex, the current standard with hardship requirements.One of those hardships pertained to the uniqueness of the property. ††He reviewed plans he posted for display.The first being the subdivision that had Ms. Oujaimiís property andthree other homes that had wetland issues and significant ledge.He pointed out two other properties that were very difficult to develop.He believed the Board could draw on their own experience as to the lay of the land, topography, and ledge on Bush Hill Road.He said every property in that area had the same problem with ledge.He said by driving by, one could see that the applicantís property had a gentle terrain compared to the opposite side of the street.Mr. DeCarolis said at the previous meeting he introduced the plan from Blue Jay Way.In reviewing the Planning Board minutes from that development he learned that some of the slopes were upwards of 10%.He noted at the end of Blue Jay Way where the land abuts the Raytheon site,the land levels off and is a flat site.He commented if Blue Jay Way could be developed, the Raytheon site is a lot flatter and suitable for development.He ended by showing the plan of the Tibbettís property in which the topography went from 120ft.on one side of the property to 150ft + at the top and back down on the other side of the property to 140ft.He said this was similar to the Raytheon property and further commented that his own property was similar to Raytheon as far as the steep slopes.He noted Sky View had some tough lots as well.In summary all the surrounding property had the same problems that Raytheon had and suggested that Raytheon was more suited for development than the surrounding.

 

Mr. DeCarolis stated the law regarding uniqueness was spelled out by the Supreme Court in the (2006) case of Garrison v. Town of Henniker during which the court talked about uniqueness and Simplex factors for hardship.The court went on to say that Simplex requires a determination of whether the unnecessary hardship is a result of a unique setting of a property.After reviewing the record the court (in the Garrison case) concluded that GME had failed to conclude the property was unique for zoning purposes; specifically there was no evidence in the record that the property had issues different from other properties zoned rural/residential.Based on the order they were not persuaded that the court failed to apply the correct standard for unnecessary hardship.†† Mr. DeCarolis stated there was nothing unique about the Raytheon site.It was unique for Raytheon and perfectly suited for their radar, but that is not the standard. He said itís not unique that serves their purpose; itís got to be unique to prevent a reasonable use.He said theyíve had a reasonable use and would continue to have a reasonable use.They will continue the ability to test their radar.†† He said the request was that Raytheon not be allowed to expand it.Mr. DeCarolis continued to review the Garrison case.It reads that unnecessary hardship requires a determination of whether the zoning restriction, as applied, interferes with a land ownerís reasonable use of a property.This factor includes a landownerís ability to receive a reasonable return of their investment.There must be actual proof offered in the form of dollars and cents.Mr. DeCarolis stated there was no proof that Raytheon could not continue to use their property in a reasonable manner, continue to test military equipment, and continue to make money or a profit.This point was never discussed and no argument was made that they couldnít continue to use the property in a reasonable manner and get a reasonable return.Raytheon was requesting an expansion to make the operation bigger, larger and test more equipment.He said that wasnít the legal standard.

 

Mr. DeCarolis noted the last two times Raytheon had come to the Boardand stated it wouldnít be visible to surrounding properties and neighbors; however, the big green quonset huts are clearly visible from the road.He said with the proposed removal of trees it was unconceivable that their facility wouldnít be more visible, have more light, more noise and more intrusion in the residential area.††

 

Ms. Paliy asked Mr. DeCarolis how long he had been on his property.Mr. DeCarolis answered twenty years.Ms. Paliy commented when he bought the property Raytheon was already there.Ms. Paliy said Raytheon had 70 acres of industrial property and questioned if the nature of the neighborhood could really be described as residential and not industrial.Mr. DeCarolis replied when he moved there in 1993 Raytheon was there, but there had been a lot of expansion since then.Ms. Paliy questioned if the character of the neighborhood had already been changed to industrial (and was not residential) given that Raytheonhad 70 acres.Mr. DeCarolis believed the character of the area to be residential.He said the Raytheon site was the only industrial use in the area.He believed the criteria questioned if it was inconsistent with the rural area of the neighborhood.To this point he said all of the surrounding properties were strictly residential and some agricultural (on the Hirsch property).

 

Attorney Boutin said the word inconceivable was used in testimony, which is another word for speculation and not evidence.The evidence is the facts in front of the Board.He said there are other properties on slopes in the area.†† He said Raytheonís presentation shows that approximately half the property had over 20% slopes.Attorney Boutin said a circuitous argument was made; a denial would not change the character of the locality.All the other variances would stay in place, therefor e the effect on the locality would be the same.He stated that the discussion of the variance standard (specifically hardship) was an important concept.He believed they had laid it out for the Board with laws that are defensible and tied to cases that were germane to the present hearing.He said they didnít have the burden of proving that a test range was the only use they could put to the property, but rather, they have the burden of proving that a test range is a reasonable use of the property.He believed this point had been well established.He said its evidence if someone had lived in the neighborhood for twenty years and not once raised a compliant until the current application. It was also evidence if other people living in the area had not raised complaints.It was also evidence if the Assessor had not spoken to the Board about diminished property values.He stated the Board had to base their decision on evidence deriving from facts stated with credibility or evidence inferred from facts established.Attorney Boutin told the Board he was present to talk from the facts and didnít believe any of them are disputed.He said with the facts not being disputed, he argued from them and allowed the Board to draw inferences based on the law.

 

Mr. Phillips said he erred relative to when radar testing occurs.He said when testing goes on there are beacons that go on to alert people; there are no alarm horns or bells.In discussing the uniqueness of the property and comparing it to other residential pieces that have been developed on the periphery, there is a significant difference to Raytheonís property that contains slopes in excess of 20%.He noted the Planning Board currently requires lot sizes to be significantly increased if any portion thereof is in excess of 20%.He said comment was made regarding the development of properties along Bush Hill Road.He said that may be appropriate because the slopes are significantly less than 20%; this has no bearing on what Raytheon has testified they could utilize the property for.He didnít feel it was a fair comparison to look at the low lying areas that were relatively flat as opposed to the area Raytheon was developing at the top of the hill for testing purposes.Mr. Phillips addressed the concern regarding possible effects on ground water.He said he responded that there was no effect from radiation.To the concern regarding noise levels, he didnít believe that Raytheon throughout the entire process had ever in the current testimony or during the prior variancesindicated there would not be sound emanating from their property.He noted they had stated that the sound levels currently emanating from the property and those tested for the proposed equipment, would be equal to what has been experienced to date.He further noted that the level was less than the EPA Standards that have been established and adopted across the country.

 

Mr. Hennessey said one of the arguments being made by Mr. DeCarolis was that over the years, incrementally as variances have been granted, the onerous nature of damage to the site has increased slightly each time and the Board should stop allowing the changes.He asked if the testimony given by Raytheon was that sound has not increased over the past as variances have been granted, and will not increase if the proposed variance is granted.Mr. Phillips replied they were making specific attempts and design decisions in the equipment (proposed to come on site) to limit any sound source levels at or below the existing levels on the site.The experience at the property boundary by abutters would not be increased from what it currently was.He noted there was a statement in the summary of the community sound impact conclusions (report dated January 30, 2013 and submitted with application).That statement read the overall goal for the facility was to minimize the risk of community sound annoyance and neighborhood complaints.These goals are reception based and not dependent upon established criteria levels that are generally considered fair.Based upon the previous work that Air & Noise Compliance has done at the facility (over a period of 5 years and several programs) their current predictions, the recent sound source measurements and Raytheonís commitment to further reduce the new equipment sound source levels, they expect that the proposed Hawk Hill test site activities will not create a community sound impact.There will be nothing discernible beyond what there currently was.

 

Mr. Hennessey said the Town didnít have a sound ordinance.He heard that the goal was to reduce the sound emitted on the site.Mr. Hennessey asked if there was any objective criteria that the Board or abutters could point to in the future as to whether sound had been reduced, stayed the same or increased.Mr. Phillips answered that the objective criteria could be obtained by the same methodology that they had done over the successive period of different systems.The national established EPA Standard is 55 decibels during daytime and 45 decibels at night.He said they measured during their daytime operationthat the observed sound at the property line is in fact lower than the night time accepted value of 45 decibels.He noted there were portions of the system they werenít considering bringing up to the site to test because of their noise factor.He said they were producing cooling capacity via the chiller on the (concrete) pad and water pumping facilities inside the mechanical building.These have far less noise impact to the environment than the deployed tacticalequipment wouldhave.He reiterated they were making every effort to minimize noise, which has been a criteria from day one.

 

Mr. Anderson asked if Raytheon had retention ponds on their property.Mr. Phillips answered no.Mr. Anderson understood Raytheon was proposing gravel roads to slow water flow.He told the Board during some of the heavy rains, there were three times the water level rose as high as Bush Hill Road and ran over the top of the road.He had previous experience as a Conservation Commission member in Londonderry and understood gravel might slow water flow down; however, with the proposed tree cutting water would be allowed to flow into the marsh areas and wetlands at a faster rate than the current.Mr. Anderson felt there had to be some sort of retention pond to hold the water from flowing (downhill) so quickly.He asked if there was any possibility of cutting fewer trees than as proposed.

 

In the event the variance was granted, Mr. Hennessey asked Raytheon if they were prepared to present the Planning Board evidence that the work on the site would not increase any runoff beyond what there currently was.Mr. Phillips answered yes.He believed he provided testimony that indicated through his discussion with Keach Nordstrom and were in agreement that there were no permits local or State permits required under the proposal.He explained that the issue with the site was after the first foot the surface was basically impermeable until the point where the ledge disappears and there is a wetland.Mr. Phillips addressed the tree cutting, which they believed to be a minimal amount of trees which would allow the radar to effectively operate.He explained the area of the 20ft. swath would be roughly laid out; if there is a larger tree they would try to go around it.The 50ft cutting on the inner portion of the parcel measured approximately 400ft. long, but they may not have to cut that amount, it was purely safety and allowing the radar units to function properly.Mr. Phillips then discussed drainage.He said on a site with 20% slopes, it would be extremely difficult to create a retention/detention pond.Given the amount of additional impervious surface being added,he initially felt it was minimalistic and below any major criteria that would require such a retention/detention area as suggested by Mr. Anderson.He posed that question to Keach Nordstrom who reviewed the information and came back with a similar position (as Mr. Phillips).

 

Mr. Hennessey saidthe Board wanted to examine all the ramifications of approving a variance; however water runoff and light issues came under the purview of the Planning Board.

 

Mr. DeCarolis appreciated the fact that the applicant had areas of steep slope.He said every property in that area had some unique characteristic making it tough to develop. He didnít feel the applicant was meeting the criteria.He explained the criteria requires that because of that unique feature they are not allowed reasonable use of the property.He said in this case itís the opposite.Because of this unique feature of the site, it makes it reasonable for Raytheon to use the site the way they have been for the last forty years.That unique feature does not prohibit the use of the property they currently enjoy.The steep slope feature doesnít prohibit them from using it as residential, and in fact Pelham has made it even easier for them to use it for residential because a conservation subdivision could be developed.Mr. DeCarolis said just because a property has steep slopes and ledge that everyone suffered from in that area, didnít mean an applicant is entitled to a variance for industrial use.A unique feature doesnít mean someone could go from a residential neighborhood , violate the spirit of the ordinance, and jump all the way to industrial.He didnít see how the unique features interfered with the use of the property.He felt it would be more appropriate for the applicant to ask for the area to be rezoned.He didnítí feel coming before the Board for five different variances was just.In questioning fairness, Mr. DeCarolis asked at what point the Town wasnít fair to Raytheon in granting the past four variances.He said if anything they should be petitioning the Town to rezone the property.He stated they didnít meet the legal criteria for variance.He said they hadnít suggested that the unique features were the cause of their hardship.

 

Ms. Paliy said during the Boardís review, they had to look at the surrounding.She said with the variance it (the lot) had been rezoned and was industrial.Mr. DeCarolis replied it had not been rezoned.Ms. Paliy said the Board had to take a literal look around not just what was on paper.She wanted to understand why Mr. DeCarolis was saying it was not industrial because she believed there was clear evidence since 1968 that the area had been industrial.Mr. Hennessey responded that the zoning had not changed.He said it was zoned residential, but there was a variance granted for its current use.†† Mr. DeCarolis added that the applicant agreed they needed to meet all five criteria for a variance.

 

Mr. Hennessey asked if anyone else would like to come forward and speak.No one stepped forward.He explained the procedures of the Board.

 

Mr. McNamara asked if the Board could receive testimony from Mr. Frank Kuhn of Air & Noise Compliance, who drafted a study for the applicant.Mr. Hennessey answered yes.Mr. McNamara asked if comment could be provided regarding the concern that tree clearing would affect the noise heard by neighbors.Mr. Kuhn explained trees provide a visual screening and with enough foliage (typically in the order of hundreds of feet).In regard to noise reduction, trees, barriers etc. typically canít provide more than 20 decibels; once the maximum is reached nothing more could be attained.He said removing the proposed small portion wouldnít necessarily change anything.He briefly explained the physics of sound and told the Board when conducting their sound evaluation they put everything in as if all equipment was operating at once to determine a maximum level.He said their work was to keep it at the same level, which hadnít generated any noise complaints.He further noted that their predictions were conservative thereby they were over predicting and verifying through measurements.

 

Ms. Paliy described her understanding of the work performed at the Raytheon site.She asked if any projectiles were being put into the air.Mr. Croteau provided a brief explanation by stating the radar beam imaged an object.Typically they would like to image a satellite and track it through space.They look at the reflected signal from that object.Ms. Paliy questioned ionizing radiation and wanted to know if the trees were being removed because they would be burned if in the path of the radar.Mr. Croteau answered no.He said the trees would cause reflection; they donít want reflection at the ground level.

 

The Board reviewed the criteria.

 

Pertaining to public interest, Mr. Hennessey said the Board heard good arguments from Mr. DeCarolis.He was unsure if the Farrar v. City of Keene was applicable.They spoke about the Chester Rod& Gun case, which had discussion on the applicantís side and from Mr. DeCarolis about the variance altering the locality.Mr. DeCarolis argued the variance would alter the locality and the applicant arguing that the locality had been established by what was in place.Mr. McNamara commented that Raytheon had been at the location for forty years and received variances to evolve.He said their proposal was to do what they had been doing, which was a technology evolution.They were only using 14.5%of the site.Mr. McNamara noted a subdivision of the land (if it were possible with the slopes) would increase the use of the land and would be a more intrusive from what was currently there.In regard to public health, safety and welfare, Mr. McNamara said theonly documented evidence was the radio frequency report which basically states there was more exposure using a cell phone.Similarly the Board received the report from Air & Noise Compliance.Mr. McNamara said from the testimony of abutters he didnít hear that the noise and light was an intrusive nature that disrupted daily activities.In comparison he believed any other use would produce at least as much, if not more noise.

 

Based on the testimony,Mr. Molloy didnít see anything that had altered the central character of the neighborhood.He said the proposed buildings wouldnít be seen from the road.There was no testimony that there would be more noise.He didnít feel a variance would be contrary to public interest.

 

Ms. Paliy said the company had been in the location since 1968.Itís been industrial and predated a lot of the housing (in the area).When developments were built there was knowledge of the facility.She said the Board wasnít making a decision to allow the facility; it was already in existence.She commented that the Board was looking at an expansion and didnít feel the facility could remain the same for forty five years.She saw nothing presented that was against being a normal expansion or something that went against what had always been there.Ms. Paliy commented if the area was turned all residential it would become considerably more invasive.She felt the property should be rezoned.

 

In terms of being not contrary to public interest, Mr. Hennessey said in weighing variances in the past the Board had looked at the alternative in many cases and had come down on the part of less intrusion.Mr. McNamara said that standard was a tough one.It wasnít simply that there wasnít a benefit, it was if it would be contrary to the public interest.In Mr. Hennesseyís opinion in many ways a full-blown subdivision (or conservation subdivision) would alter the locality more than its current use.He said the tougher argument was the idea of the incremental increase in usage.He said with variance layered on variance, he didnít want to find one day that Andover Raytheon had moved to Pelham.Mr. McNamara felt the nature of the site would preclude that type of development.Mr. Hennessey said by the fact that only 14% of the site would be used made it far from being industrial character, even though the use was industrial.

 

Ms. Paliy felt the adjustments and upgrades requested over the forty five years Raytheon had been in Town was far less than a commercial property would have requested.Mr. Hennessey believed the statement given to the Board that the low density industrial use would affect the locality much less if a residential development were allowed there.

 

The Board discussed the public health, safety and public welfare.Mr. Hennessey said it was pointed out that the Board members werenít experts and they had to rely on experts from time to time.He felt the discussion/arguments were understandable and didnít see a threat to the publicís health, safety or wellness.He noted that the Planning Board would also address the site.

 

Mr. Hennessey said the spirit of the ordinance gets mingled under the first criteria.He felt the purpose of zoning was to maintain character and didnít see how the request affected it.Mr. McNamara agreed.

 

With regard to substantial justice, Mr. Hennessey wasnít sure it was disputed.He felt the Malachy Glen case was correctly cited in the application.In essence, there was no gain to the general public by denying the variance; there wasnít negative impact to the general public or individual by approving the variance.The Board agreed.

 

Mr. Hennessey then addressed the values of surrounding properties.Mr. McNamara said the Board didnít have expert evidence either pro or con, so they were left to their own knowledge of the area and testimony.Mr. Molloy pointed out that Raytheon was already at the location.He didnít feel the value of properties would be changed by Raytheon adding the proposed work.There was nothing in the variance that would change the values.Mr. McNamara understood that the Board recognized in past variances it was understood any further expansion would require the applicant to come back in front of the Board, which they were doing now.Mr. Hennessey felt the criteria needed to be changed.He said it was very hard to prove that surrounding values would not change.He said almost anything could diminish values because it was all in the perception of potential buyers.He commented he had sold real estate for approximately forty years and had been all over the State and Massachusetts and done a lot of real estate work.He said trying to convince someone that moving next to (fill in the blank) was not harmful would be near impossible if they felt it was harmful.He said in this case, and in acknowledging Mr. DeCarolisí argument about incremental increases in use, he didnít see the request as affecting values.However, he acknowledged if enough people believed values would be affected, they would be.Mr. Hennessey said he didnít know if the proposal rationally/reasonably would change what had already affected value.He believed the current and proposed would have less effect on values than perching a subdivision in that location.

 

The Board discussed hardship.Mr. Hennessey felt the applicant was correct in rewriting the criteria; the hardship wasnít to Raytheon.Mr. McNamara said the question was if new testing was reasonable, knowing that there has been an evolution of radar testing and technology.Ms. Paliy said there had to be an evolution; it was an industry that constantly evolved.They couldnít test the same things as they did forty five years ago.In using that argument, Mr. Molloy questioned when it would stop.Ms. Paliy said it doesnít stop.Similar to every commercial and industrial property that comes in front of the boards every couple years because they were changing, she felt the applicantís request was no different.Mr. Hennessey reviewed the criteria and discussed how he read Simplex.He said the Board is told not just to consider the lines on a map, but also to consider the environment at which a property finds itselfHe said the environment of applicantís property was basically industrial because it was granted a variance. ††Mr. McNamara said it also takes into account the topology of the site.He said according to testimony, the two higher perches of the site could not be built lower down on their property because it wouldnít provide a clear field of vision.Mr. Hennessey said that argument reminded him specifically of the variance the Board granted for the cell tower, not too far from the applicantís site.He said in that case the location was a unique spot, a distance off the road, and the Board found no effect on the abutters.He said basically that was one of the few places in Town that the cell tower needed to be located.He found the applicantís argument to be similar to the cell tower case.Mr. McNamara agreed.

 

Mr. Hennessey questioned the argument that the area was supposed to be residential.Mr. McNamara felt it was a good argument; everything else around it was residential, wooded and quiet.Ms. Paliy felt the bigger question was to view what was already there; it was industrial not residential.She said another way to view the request was some of the zoning done in the 1960ís was not good for the Town.She said it had to be corrected.Mr. Hennessey said it wasnít the Boardís job to substitute their judgment on the zoning for that of the voters.Ms. Paliy said the bad zoning was directly causing the issues.Mr. Hennessey said the proper venue for Ms. Paliyís points was in front of the Planning Board.Ms. Paliy said based on the legal level the Board had to look at what was at the location.She said the Townís classification for the request is industrial.Mr. McNamara said the points being made were good, but not for the present forum.He said the opportunity for a variance will always be there because of the relief it offers from the ordinance.He said if zoning changes are going to be introduced they should be heard, but not at the present meeting.Ms. Paliy commented that the property had been industrial since 1968 even with the paper indicating it was residential.Mr. McNamara replied it is a residential zone and the applicant has variances to conduct business on the site.Ms. Paliy said that made it (the property) industrial.Mr. Hennessey felt the argument was good, but not on the criteria being discussed.He felt Ms. Paliyís argument could be brought in under prong B Ė no fair and substantial relationship exists between the general purpose of the Zoning Ordinance and the specific restriction on the property.Ms. Paliy said because the property had been industrial and to suddenly say that it was residential presented a hardship because it was already industrial and the applicant already had a variance for it to be industrial and they were already basically increasing the same use.She said they were changing the use with time the same way every other property does when coming in front of the Board.She felt it created a hardship to now come in and say a paper indicates a residential zone.

 

The Board then voted on the variance request as follows:

 

BALLOT VOTE:

 

Mr. Hennessey Ė Yes to all criteria

Ms. Paliy Ė Yes to all criteria

Mr. McNamara Ė Yes to all criteria

Mr. Molloy Ė Yes to all criteria

VOTE:

 

(4-0-0) The motion carried.

 

 

VARIANCE GRANTED

 

 

 

MINUTES REVIEW

December 15, 2012 Ė deferred.

January 14, 2013 Ė deferred.

 

 

ADJOURNMENT

 

MOTION:

(Molloy/McNamara) To adjourn the meeting.

 

VOTE:

 

(4-0-0) The motion carried.

 

The meeting was adjourned at approximately 9:35 pm.

Respectfully submitted,

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Charity A. Landry††††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Recording Secretary