Planning & Zoning Board Notices & Minutes

Feb 24, 2015

Approved Zoning Board Minutes Feb 24, 2015

6:00 PM

Present: Chairman Eddy Moore, Vice Chair Sean Sweeney, Art Tighe, Jessica Daine, Heidi Hurley, Jerry LeSage, and Joanna Ray (recording secretary)

Excused: Guy Harriman

Others: Attorney Bernie Waugh (ZBA), Attorney Carol Holahan (Verizon), Attorney John Springer (SBA & NEWN), Dan Edgar, Sharon Edgar, Darin Wipperman (The Courier), Attorney Robert Miller (Sheehan, Phinney, Bass & Green, P.A.), Connie McDade

Chairman Moore called the meeting to order at 6:00 PM. Jerry LeSage will stay on as a voting member for the deliberation of the cases. Vice Chair Sweeney will not be a voting member, but will participate in the discussion. Chairman Moore reminded everyone that the rehearing scheduled for January 27, 2015 was continued until February 10, 2015 due to the weather. In February, the Board heard the presented information and then closed the public input so the board could deliberate. There will be no public input tonight. There were no conflicts of interest noted.

Timothy & Tina Reed, Owners / SBA Towers V, LLC, Applicants – ZBA14-08 – Special Exception request relating to Article VI, Section 6.10.03 of the Littleton Zoning Ordinance to allow a Personal Wireless Communication Facility at 1815 Manns Hill Rd, tax map 24-7, in the Rural zone.

Timothy & Tina Reed, Owners / SBA Towers V, LLC, Applicants – ZBA14-09 – Variance request relating to Article VI, Section 6.10.04 and 6.10.10 of the Littleton Zoning Ordinance to allow a Personal Wireless Communication Facility closer to the property line than 125% of its height and to allow a PWCF within one mile of another PWCF at 1815 Manns Hill Rd, tax map 24-7, in the Rural zone.

Art Tighe distributed copies of the draft decision letter and read it into the record:


Littleton Zoning Board of Adjustment
Cases No. ZBA 14-08 and ZBA 14-09 – Rehearing

Members sitting: ______________________________________________
Discussion draft prepared by Tighe, with assistance of legal counsel.

1. Timothy & Tina Reed of 72 E. Main St., Middleboro, MA, owners, and SBA Towers V, LLC of 5900 Broken Sound Hwy NW, Boca Raton, FL as their agent (‘Applicants’) are seeking to erect a 194-foot monopole personal wireless telecommunications facility tower within a 60’ x 60’ compound on a 100’ x 100’ site which is part of a 51-acre lot at 1815 Manns Hill Road in Littleton (Tax Map 24, Parcel 7). In case #14-08 they seek a special exception for this use under Article VI, Section 6.10.03 of the Zoning Ordinance. In Case #14-09 they seek two variances:

  • First from the Section 6.10.04 of the Ordinance, which requires that such towers must be set back from abutting property lines a distance of 125% of the tower height. In this case the proposed tower site is only 100% of the tower height from the northerly abutting property line (48.5 feet short of what would be a 248-foot requirement).
  • And secondly from the requirement in Section 6.10.10 that no such tower may be located within a one-mile radius of any other such tower without a variance. In this case the tower is proposed to be located approximately 2/10 of a mile from an existing tower owned by New Hampshire Public Broadcasting (‘NHPB’), upon which PWCFs are sited.

2. The applications were combined for hearing purposes. Public hearings were held on August 26, September 30, and October 28, 2014. The materials submitted by the parties to those hearings are in the case file and are incorporated by reference, without being reiterated in this decision. The Applicant claims to have commitments from two providers – Verizon Wireless and Northeast Wireless – to locate their equipment on its proposed tower, which is large enough to fit five providers.

3. At the end of the October 28 hearing, the Board voted by 3-2 to grant the special exceptions and the two variances. The Board later received two motions for rehearing pursuant to RSA 677:2, one from abutter Sharon B. Edgar, and one from NHPB. At a meeting on December 9, 2014, the ZBA addressed those motions. The NHBP motion – for reasons not relevant to the decision herein – was denied. The motion from Ms. Edgar was granted “to address the error in notification per RSA 12-K:7, to address Sharon Edgar’s letter of appeal, and to accept any new evidence not previously presented” (as quoted from the minutes). One assertion made in Ms. Edgar’s motion was a claim that the ZBA had failed in “consideration of the clearly generous offer by NH Broadcasting Company to replace the current lit tower with a new one which would and could accommodate all the requested commercial interests.”

4. After one cancellation due to weather, the rehearing was held on February 10, 2015. Attorney Christopher Cole, representing the Edgars, presented a package of materials attached to an affidavit of Peter Frid, President of NHPB, tending to show that NHPB had a contract – executed on January 26, 2015 – to replace its existing tower, that the new tower would be operational by October 30, 2015, and that it would accommodate the facilities of both Verizon and Northeast, one additional provider, and potentially more, if certain adjustments were made.

Proposed Reasoning of the Board.
5. As a preliminary issue, at the rehearing Attorney Jonathan Springer, representing the Applicants, claimed that they had been “blindsided” because the materials presented by Atty. Cole went beyond the scope of Ms. Edgar’s motion for rehearing. The Board finds that the language from her motion quoted at the end of Paragraph 3 above was sufficient to raise the issue of whether the proposed Verizon and Northeast facilities could be located on a replacement NHPB tower. In any event, it is established law that, when a rehearing has been granted, a zoning board may raise and decide anew any issue involved in the case, regardless of whether it was raised the relevant rehearing motion, see Fisher v. Town of Boscawen, 121 N.H. 438 (1981).

6. The burden of proof is on the Applicants to demonstrate that their proposal meets all of the standards for a special exception, as well as all of the five variance standards with respect to the two requested variances. The burden of proof is not altered upon rehearing, but remains with the Applicants.

7. Since variance standards are generally more difficult to meet, we will focus first on those, beginning with the requested variance from the 1-mile provision under Section 6.10.10. And since the “unnecessary hardship” requirement is often the pivot point, we will start there. Normally, in order to show unnecessary hardship, an applicant must show that “owing to special conditions of the property that distinguish it from other properties in the area: (i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and (ii) The proposed use is a reasonable one.” (RSA 674:33, I(b)(5)). Alternatively, the N.H. Supreme Court stated in Daniels v. Town of Londonderry, 157 N.H. 519 (2008), that in the case of telecommunications facilities governed by the Federal Telecommunications Act of 1996 – and given that the federal Act preempts municipalities from effectively prohibiting service, thus requiring municipalities to grant local permits if an applicant demonstrates that its plan is “the only feasible alternative” (Daniels at p. 527, quoting from Second Generation Props. v. Town of Pelham, 313 F.3d 620 (1st Cir. 2002)) – the “unnecessary hardship” test in such a case can be met by a showing that the proposed facility is required to fill a significant gap in coverage, and that there are no feasible alternatives for filling that gap other than by implementing the proposed plan.

8. Here the Applicants argue (in Atty. Springer’s “Project Narrative” at pages 8-10) that they meet both types of hardship. Hence we address first the unmodified statutory standard. The “special conditions” of the property are presumably its altitude and the fact that a tower sited there will provide coverage to more of the surrounding territory than will other locations (Oct. 28 testimony of Keith Vellante of C2 Systems). However, the fact that a parcel is uniquely suitable for an applicant’s proposal does not necessarily demonstrate uniqueness for zoning purposes (Garrison v. Town of Henniker, 154 N.H. 26 (2006)). Moreover, even assuming, for argument’s sake, that the altitude constitutes a “special condition” the request nevertheless fails the “fair and substantial relationship” prong. The “general public purpose” of the 1-mile requirement is, in essence, to prevent telecommunication tower clutter. That purpose recognizes and incorporates the assumption that the best sites for towers will likely be at high elevations. Hence the elevation of this proposed site does not result in an application of the requirement which lacks a fair and substantial relationship to that requirement’s general purposes.

9. In their argument under the “reasonable use” prong, the Applicants cite, in addition, the fact that the lot is a large one, and in a generally undeveloped area. The Board does not believe these characteristics constitute “special circumstances” for hardship purposes, because many locations in the same zoning district share those conditions. Moreover, while the Applicants argue that their proposal is “a reasonable one,” they have failed to show that the alleged reasonableness arises from, and is “owing to” the asserted special conditions, which is the statutory standard which must be met.

10. We thus turn to the closer issue of whether the Applicants meet the alternative “hardship” test set forth in the Daniels case. At the outset, the Board is in doubt about whether the Applicants have demonstrated a coverage gap. Northeast Wireless does not currently provide any service to Littleton, and presented no evidence of having explored alternative antenna placements. It thus has failed to meet its burden under the Daniels standard. Verizon, by contrast, does currently serve the Town via antennas located on the NHPB tower. Testimony established that its need to be placed on the proposed SBA tower relates to its desire to institute an enhanced quality of service (G4) for its customers, and that the current NHPB tower cannot accommodate the heavier equipment required for that enhanced service. The Board is unsure, as a matter of law, whether a desire to provide enhanced service equates to a “coverage gap” for purposes of the Daniels standard.

11. Assuming, solely for argument’s sake, that a coverage gap exists, the question becomes whether the proposed tower constitutes the only feasible alternative for filling that gap, or rather whether there are other feasible alternatives. The Applicants’ technical testimony does appear to demonstrate that the proposed site is the only feasible alternative – at least for a single-tower solution – if one excludes the NHPB tower as an alternative. No party has suggested any multiple-antenna alternatives, and the data which were presented do not suggest any obvious such alternative. Instead the main issue raised by the opponents to the application is whether the NHPB tower replacement (as evidenced by the Peter Frid Affidavit submitted at the rehearing) should be considered a feasible alternative.

12. With respect to that question, parties at the hearings focused on the whether the NHPB replacement tower constitutes an “existing PWCF tower” for purposes of Section 6.10.03 of the Zoning Ordinance. The Board finds that emphasis to be misplaced – at least with respect to the variance requests. The “existing tower” language is part of the special exception provision of the Zoning Ordinance. However for variance purposes, we do not see anything in the case law which requires a “feasible alternative” – for purposes of the Daniels standard – to be an alternative which already exists. On the contrary, in many cases the discussion of “feasible alternatives” analyzes alternative sites for an applicant’s own facilities to be constructed, hence clearly implying that an alternative may be “feasible” even though it does not presently exist.

13. Case law appears to require the Board, in analyzing alternatives, to delve at least to some degree into business relationships, even among potential competitors. Compare, for example, the federal case cited in the Daniels decision – Second Generation Props., LP v. Town of Pelham, 313 F.3d 620 (1st Cir. 2002), where the Court found that the applicant had not met its burden of showing that its plan was the only feasible alternative – with the later case of Omnipoint Holdings, Inc. v. City of Cranston, RI, 586 F.3d 38 (1st Cir. 2009), where it was held that the applicant did meet that burden, based on evidence that it had not only negotiated in good faith with the owner of an alternative site, but had even unsuccessfully “offered an extraordinary bonus in an effort to reach a contract” with that owner.

14. With respect to Applicant SBA and Northeast Wireless, there was little evidence that they have negotiated with NHPB at all – and certainly nowhere near the degree indicated by cases such as Omnipoint. With respect to Verizon, there appears to be no dispute that its proposed enhanced service (4G) equipment of Verizon cannot be located on the currently-existing NHPB tower. At the original hearings the Applicants provided detailed evidence that Verizon had negotiated extensively with NHPB for a replacement tower financed, in part, by Verizon itself (see letter of Atty. Thomas Hildreth dated Sept. 16, 2014). It now appears, however, based on the Frid affidavit presented at the rehearing, that NHPB has proceeded to contract for a replacement tower without any financing from Verizon, and has definite plans to make that replacement operational by the end of October 2015, with the potential for leasing space which would accommodate both Verizon and Northeast. The Applicants have not presented evidence that this new alternative is infeasible.

15. The question arises whether there is any reason why the ZBA would be precluded from utilizing the new information about the NHPB tower in its decision. We do not believe there is. The Board’s October 28 decision never became final, nor did any vested rights attach to it. The presentation of new or altered evidence is a quite commonly-cited reason for board reconsideration. The ZBA must decide each case in light of the complete evidence before it at the time a particular decision is made. We have not found or been directed to any statute or case law which holds that a zoning board must wear blinders to feasible alternatives which become available during – or even as a result of – an application process.

16. At the rehearing the Board received (from the Edgars’ attorney) a copy of an e-mail from Lisa Thorne, Director of Governmental Relations for Verizon, to Peter Frid of NHPB stating, in part: “The plan is to await the outcome of action at the Littleton zoning board at the end of January and then commence further discussions.” The implications of that e-mail have not been confirmed by the parties to it. However, even without that e-mail, the new information provided by the Peter Frid affidavit represents an altered opportunity (replacement tower without Verizon financing) which there is no evidence Verizon has discussed to any degree with NHPB. Thus the fact remains that as of the date of the rehearing, there is evidence before the ZBA that the replacement NHPB tower represents a “feasible alternative” to the SBA site (under the standard of the Daniels decision), and – as least as of now – no evidence that it does not. We therefore find that the Applicants have not met their burden under the Daniels alternative standard for unnecessary hardship. However, since no one can predict the future, we will make our decision without prejudice, in case the Applicants as some point can plausibly argue, based on new information, that the NHPB replacement tower has failed to materialize as a “feasible alternative.”

17. One further issue arose at the rehearing with respect to the NHPB replacement tower. According to NHPB, the manner of replacing the existing tower will be to construct the new tower approximately 18 ft. from the old one, and not to remove the old one until the new one is operational, in order to minimize any interruptions in service. Atty. Springer argued at the hearing that, in light of these facts, the NHPB tower would lose its status as a nonconforming use, and that the replacement would not be permitted without conforming in full to the current Ordinance (it being acknowledged that the present NHPB tower is nonconforming). Atty. Springer claimed that the law of nonconforming uses does not apply to structures. Again, however, the Applicants have the burden of proving the unavailability of a feasible alternative. At this point, the building permit for the NHPB replacement has been issued, and no party has appealed that issuance. Moreover the Board has been advised by its legal counsel that the 3-part test for changes or expansions of nonconforming uses – as set forth by the NH Supreme Court in cases such as Hurley v. Town of Hollis, 143 N.H. 567 (1999) and New London Land Use Assn. v. New London ZBA, 130 N.H. 510 (1988) appears to have been applied in cases involving nonconforming structures in the same manner as when it is the use which is nonconforming, see, e.g. Colby v. Town of Rye, 122 N.H. 991 (1982); Granite State Minerals, Inc. v. City of Portsmouth, 134 N.H. 408 (1991).

18. Since all five variance standards must be met in order for a variance to be granted, and since the Board finds the hardship standard has not been met, the Board cannot grant approval at this time. However we go on to address the remaining standards, in case some portion of this decision were to be overturned, or a later similar application were to be made. Continuing with the requested variance from the one-mile provision, the Board finds that the Applicants meet the requirement that surrounding property values will not be diminished. No hard evidence was presented on property values. However the Board believes that, particularly in light of the existing NHPB tower, the impact of the proposed second tower on property values would be negligible.

19. The NH Supreme Court has held that “spirit of the ordinance” test can encompass, not merely the impact of a single application, but the potential cumulative impact of many similar applications, see Bacon v. Town of Enfield, 150 N.H. 468 (2003). Again, the purpose of the one-mile provision is to prevent tower clutter. Permitting a second tower on Manns Hill would be contrary to the spirit of the Ordinance because it would open the door to such clutter, making it much more difficult to deny similar applications in the future. The Board would need to reconsider this standard, however, if the NHPB tower turned out not to be a feasible alternative for purposes of the Daniels test.

20. With respect to the “public interest” and “substantial justice” tests, the Board finds that the issue of whether these criteria are met hinges upon whether the NHPB tower constitutes a feasible alternative (as discussed above). If it were to turn out that the SBA tower were in fact the “only feasible alternative” for providing coverage, then the denial of the variance would constitute an injustice in light of the purpose of the Federal Telecommunications Act of 1996, which would not be outweighed by any gain to the public. Similarly the Federal Act declares that personal wireless service is in the public interest. However in light of the Board’s finding that the Applicants have failed to prove that there are no feasible alternatives, the granting of the variance would be contrary to the public interest as embodied in the zoning restriction. While the proposed location is remote and in a forested area, it is nonetheless visible from many locations, such that the public interest embodied in the restriction is furthered by applying that restriction to this case.

21. We now turn to the requested variance from the 125% setback requirement. Much of the “hardship” analysis in Paragraphs 17-15 above also applies to this variance. In addition, however – even assuming for argument’s sake that the SBA tower had been shown to be the “only feasible alternative,” the Applicants have failed to show that it cannot be sited in conformity with the 125% setback requirement. They argue that their proposed site is preferable due to slopes, but they made no showing that an alternative siting conforming to the requirement could not be built on, or would be cost-prohibitive. Atty. Springer’s written narrative states:

“Moving the Compound south means that the ground elevation also drops. Thus, the tower would have to be increased in height in order to achieve the same RF propagation. The additional 48.5 feet to the northerly property line will make no difference for any reason…”

This is far from evidence that the restriction cannot reasonably be met. In fact, the majority of the Applicants’ argument on the setback variance consists of claims that the 125% setback require is generically unreasonable and unnecessary. However this Board has no authority to set aside the ordinance itself, and such generic arguments do not satisfy the unnecessary hardship criterion – either by demonstrating “special conditions” or by satisfying the “no fair and substantial relationship” or “reasonable use” prongs.

22. We decide the remaining variance criteria for the setback variance in a manner similar to the variance from the one-mile provision. The Board does not believe that any reduction in property value would result from the setback variance. However in the absence of a showing that the SBA tower cannot feasibly be located in conformity with the setback provision, we find that this variance does not meet the public interest, substantial justice, or spirit of the ordinance tests, because no interest has been proven on the other side of the scales to offset the adverse impacts upon the spirit of the ordinance, public interest, and justice interests represented by the 125% requirement in the Ordinance.

23. Finally we turn to the special exception criterion in Case No. ZBA 14-08. The application must meet the criteria in Section 14.01. The Board finds that, in the abstract (and ignoring variance issues for the moment) the site is an appropriate one for the proposed use, a monopole PWCF. The site is located in a rural zone in a heavily wooded lot with a tree canopy of approximately 80 feet in height, and allowing for maximum signal distribution without gaps in coverage. The proposed site is at the high point on the 51-acre lot, and would be accessed via an existing driveway from Manns Hill Rd, with a 12’ gravel driveway sited within a 15’ access easement. The PWCF would be unmanned. Needed utilities will serve the site via the 15’ easement. The structure creates minimal traffic, and no building occupants. The visual impact of the building itself will be largely obscured by the tree canopy and the structure will be well secured by a security fence. Only the section of the monopole between 110’ and 194’ will be visible from surrounding areas which command a view. The 51-acre lot already has a home dwelling, and the PCWF would thus not affect the buildability of the property.

24. As with the two variance cases (above) the Board finds that property values will not be reduced by the proposed use. The distance and buffering between the proposed tower and adjacent homes is such that its existence would be unlikely to be noticed on a daily basis, particularly in light of the fact that a much larger tower has existed in the area since 1967.

25. No nuisance or unreasonable hazard would result. The PWCF will have no light emissions, no fumes, and little enough noise to be absorbed by the heavily wooded lot. Traffic would be on a monthly basis for inspection/maintenance or for outages or upgrades. There will be no combustibles stored on site or any other large fire-producing components. (Note that this criterion is being evaluated independent of the request for the variance from the 125% setback requirement.)

26. Adequate and appropriate facilities for such a use have been provided for the proper operation and maintenance of the proposed use. The 15’ access easement will allow for telephone and electric utilities from Manns Hill Road, and that road is more than adequate to serve for the construction of the facility and access road, and the secured nature of the PWCF compound.

27. The Board also finds that the special exception application does not violate any of the provisions of Section 6.10.03. The Applicants have demonstrated that they cannot place their antennas on an “existing” PWCF tower. While the word “existing” is not defined in the Ordinance, the common, ordinary meaning of the word “existing” does not include the proposed replacement NHPB tower. Therefore Section 6.10.03 is simply not as stringent as the alternative “hardship” criterion under Daniels, discussed above under the variance analysis.

28. In summary, the Board finds that a special exception could be granted, but for the fact that the specific proposal before us is in violation of two restrictions in the Ordinance, and the Applicants have failed to meet their burden of satisfying the variance criteria. Plainly the Board cannot issue a special exception for a proposal which violates the Ordinance, in the absence of such variances.

Proposed Action.
It was moved by Tighe, seconded by Daine, to DENY the requested variances and special exception for the reasons set forth above. This decision is made without prejudice to the Applicants to reapply in the event that the replacement NHPB tower fails to materialize or otherwise proves not to be a feasible alternative, and if the Applicants revise their application so as to address the other issues raised by the Board in this decision.

In light of the fact that this decision alters the result reached by the Board on October 28, 2014, it is the Board’s understanding that any appeal of this decision must be preceded by a new motion for rehearing under RSA 677:2, see Dziama v. City of Portsmouth, 140 N.H. 542 (1995).

Chairman Moore requested clarification on item number four. The board did not cancel the January rehearing. It was continued. All present agreed.

Chairman Moore stated he agreed with the last sentence of item number sixteen. Vice Chair Sweeney noted that it was also stated in the motion.

Attorney Waugh stated that he helped create the letter based on the decision letter drafted by Art Tighe. They also had telephone conversations based on raised concerns. Waugh informed the board they are to vote on the decision letter only if they understand and agree with what it states.

Art Tighe stated that he was directed to write decision letters for a denial and an approval. The evidence was matched up and the statements helped create the final draft.

Vice Chair Sweeney stated the letter shows a solid argument and hinges upon the hardship provision and the special conditions of the lot rendering it unique. Developments have occurred during the case and it goes against the applicant saying there is no other feasible alternative.

Jerry LeSage asked Attorney Waugh what the legal ramifications would be if the board changed from their original vote. Waugh replied that the motion on the table would reverse the previous vote. Anyone wishing to challenge the vote would file a motion to rehear and then it could be appealed to the State court. The applicant could also appeal to the Federal court. Prohibition of service could be claimed. The new decision is the one that is appealable. The old one is no longer relevant if this motion passes.

Chairman Moore stated he liked that additional providers would be able to be on the NHPB replacement tower as stated in item number four.

Heidi Hurley stated that Art Tighe did a great job with the letter.

Jessica Daine stated the letter was clearly laid out. Item number fifteen had been her biggest concern. The letter clearly stated that the board could utilize new information.

Jerry LeSage also agreed that the letter was good with stating the pros and cons. Jerry stated that NHPB presented a good case as to why the board should change their vote by presenting plans of building the replacement tower so that a second tower would not have to be built.

Art Tighe stated the letter writing process was educational and made him look at the case in many ways in order to cement the testimony and to have a clear and definitive answer without a shadow of a doubt.

Attorney Waugh recommended some typos that needed correcting. Item three will remove the s from “exceptions” and “NHBP” will be corrected to “NHPB”. Item four will change “cancellation” to “continued”. Item ten will correct “G4” to “4G”. Item twenty-one will correct “Paragraphs 17-15” to “Paragraphs 7-15”. The last section of item twenty–one will correct “setback require” to “setback requirement”.

Art Tighe moved to amend his motion to include corrections. There was no further discussion. The motion passed 5-0.

Art Tighe made a motion to approve the draft minutes from February 10, 2015. Jerry LeSage seconded the motion. The motion passed 5-0.

At 7:00 PM, Art Tighe made a motion to adjourn. Jerry LeSage seconded the motion. The motion passed 5-0.

Submitted by,
Joanna Ray