Planning & Zoning Board Notices & Minutes

Feb 10, 2015

Approved Zoning Board Minutes Feb 10, 2015

6:00 PM

Present: Chairman Eddy Moore, Art Tighe, Jessica Daine, Heidi Hurley, Jerry LeSage, Guy Harriman, and Joanna Ray (recording secretary)

Excused: Vice Chair Sean Sweeney

Others: Attorney Bernie Waugh (ZBA), Attorney Carol Holahan (Verizon), Attorney Christopher Cole (representing S. Edgar), Attorney John Springer (SBA & NEWN), Erin Hennessey, Peter Frid (NHPTV), Jeff Gilbert (NHPTV Board Chair), Paul Hunter (NHPTV), Dan Edgar, Sharon Edgar, Darin Wipperman, and Chris Hodge (Littleton Zoning Officer)

Chairman Moore called the meeting to order. Jerry LeSage was designated as a voting member for tonight. Chairman Moore introduced the rehearing cases that were continued from January 27, 2015. The rehearing was noticed in the newspaper, abutters were notified as well as the towns within a 20 mile radius, regional impact notification was done, and the hearing fees were paid.

Chairman Moore reviewed the last paragraph in the appeal letter submitted by Sharon Edgar, abutter to the proposed cell tower site. NHPB also submitted an appeal, but the Board found it to be untimely submitted. This decision is now pending in Superior Court. Chairman Moore stated he will entertain talk regarding the content of that letter, but not on the issue of its timeliness.

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.

Attorney Cole spoke on behalf of the Edgars. Cole stated his firm also represents NHPB, but is not here to represent them for this rehearing. Cole disagreed with Chairman Moore’s suggestion to discuss the merits in the NHPB appeal letter. Cole stated the Edgars oppose the approvals issued by the Board. They feel the Board deviated from the Zoning Ordinance.

Attorney John Springer informed the Chairman that Attorney Cole needs to speak of the four issues raised in the Edgar’s letter and none of them have been mentioned during Cole’s presentation. Springer requested that he be on record as objecting to Cole’s argument because the Edgar’s did not discuss the issue that Cole presented.

Attorney Cole read a portion of the last paragraph in the Edgar’s letter. Cole said his comments were in reference to this portion.

Attorney Cole presented a press release from NHPB, issued last week, which discusses the agreement that was reached to build a new tower. A copy of the affidavit was presented to the Board. The affidavit describes the process in which NHPB came to develop the specifications to build the new tower, put it out to bid, awarded the bid, and finalized the contract. Cole further described the design-build contract in section five. The construction will start May 15 and be substantially completed by September 15, 2015. The tower will have three spots for telecommunication carriers and space for all other lease holders on the current tower. There is a performance bond and certificate of insurance. Cole stated that there have been doubts in the past of the replacement tower being built, but this information should answer those questions. Cole ended his presentation by stating this is what the Edgar’s are talking about in regards to a tower already existing. This tower exists and it will be technically, feasibly, and legally able to carry all of the providers.

Chairman Moore asked about the three bays, but there could possibly be four or more interested in the space. Attorney Cole was unaware of more interested parties at this time. Right now there are two providers that have a gap in coverage. Chairman Moore asked if the tower will meet the needs of others. Cole replied that this is a good location and they will be providing for others if necessary. Cole also stated that there is already a tower in this location that is consistent with the Zoning Ordinance capable to carry out what is needed. The new tower will be the same height.

The meaning of substantial completion was discussed. Attorney Cole stated that total completion is planned for October 30, 2015. September 15 is the date for being substantially complete and transmitting. Jerry LeSage asked where the replacement tower will be built. Cole replied that it will be built 18 feet from the existing. The existing will be taken down when the new one is up and transmitting. Cole also stated that three cell phone carriers as well as the existing carriers and emergency responders will be on the replacement tower.

Chris Hodge stated that NHPB has entered into a contract to construct a tower within one mile of another tower that the ZBA issued approval for. He then asked if that would not be considered the same situation as right now. Attorney Cole disagreed and called it nonsense. Cole confirmed there is a contract in place. Under the Federal Telecommunications Act of 1996, this allows cell carriers to override or preempt local ordinances if they proved two things, a substantial gap in coverage for a cell phone carrier and they have to show that there is no feasible alternative site available. In this case, there is one and it will be up and ready September 15, 2015. This is the Edgar’s basic issue.

Art Tighe confirmed that at one point there will be two towers within feet of each other. Attorney Cole stated that the second tower will be there for a day and a half.

Attorney Cole presented an email from Lisa Thorne, Verizon Director Government Relations, regarding Verizon waiting for the outcome of the ZBA before further discussions with NHPB. This email was addressed to Peter Frid and dated January 19, 2015.

Attorney Cole requested the Board to reverse their previous decisions based on the replacement tower contract.

Chairman Moore asked Attorney Cole to clarify that the total completion date is October 30, 2015. Cole confirmed this. Jessica Daine asked if September 15 was the date for being on the new tower. Cole said yes.

Art Tighe asked the Edgars if they had an issue with the fall zone. They had previously stated they did not. Sharon Edgar stated that she still did not have any issue with the fall zone. The tower is not near her house. Attorney Cole said it is only near the property line. Dan Edgar said he is not concerned with it falling onto his property, but he is concerned with it being a violation of the Zoning Ordinance.

Jerry LeSage asked if the replacement tower would be lit like the current one. Attorney Cole confirmed this.

Dennis Wagner, abutter to the NHPB tower, said his house is in the fall zone. He has a house that is closest to the tower. Dennis was aware of the tower location when the house was built. If the tower fell in the right direction, it would hit his house. Dennis asked about the location of the replacement tower. Dennis was informed that this was not the issue presented before the board at this hearing. Art Tighe appreciated Dennis’ concern. The Board is here to address the Edgar’s concern regarding the rehearing. Dennis would like it part of the record that he brought up his concern regarding the possibility of the tower falling and hitting his house.

Attorney Springer reminded the board of his previous comments about NHPB not being able to replace their current tower. Springer feels that the tower must comply with the current Zoning Ordinance. The new tower will be in a different location with different equipment and that is a new non-conforming structure.

Attorney Springer referred to the submitted affidavit and that it did not include any concerns raised by the Edgar’s. Springer reviewed the concerns in the letter. The first was erratic and inconsistent attendance of the board members. The second concern was the flight path. The third was in regards to the board’s decision being politically motivated. Fourth was in regards to the quorum requirements. The Edgar’s did not raise the issues presented by Attorney Cole. Springer stated that Chris Hodge was correct about the placement of the NHPB tower.

Attorney Springer recapped the time line of NHPB and how they came to be replacing the tower this year. Springer stated that contracts have the risk of being breached. It happens all the time. Springer stated that the issue of bias and quorum were not raised at the time of the hearing by the Edgars and should not be considered now. The flight pattern is dictated by the FCC.

Attorney Springer noted Zoning Ordinance section 6.10.03 in regards to where antennas should be placed. It is undisputed that the current tower, as it exists, cannot handle the upgrades. Springer claimed there were five or six additional carriers that would like to be on the tower. Springer said there is not an existing tower. Existing does not mean somewhere down the road or by a specific date. The Board voted as of the date of the application. Springer stated that there was no new information presented and therefore the Board should deny the Edgar’s position and keep the approval in place.

Attorney Holahan informed the Board that Verizon still stands behind SBA and their request for the tower. Holahan was unaware of the email sent to Peter Frid and would like the Board to stand by their original decision.

Attorney Cole replied to Attorney Springer by stating he feels he presented new information by submitting the executed agreement. A breach of contract is very unlikely.

Sharon Edgar informed the Board about her concern with clutter and putting the towers close together would create clutter. The reason for the ordinance was to prevent this. Sharon addressed her concern about bias. She missed the hearing when the Board voted and felt that if she had attended, the vote might have gone the other way.

Attorney Waugh asked Springer and Cole if they thought the new NHPB tower will have the same non-conforming use rights as the old tower. Attorney Cole said a non-conforming use can be expanded or use new technologies. It will still be a 395 foot tall tower, it will have newer equipment, but the reliance interests are exactly the same. A challenge to NHPB on the scope of changing the non-conforming use would be destined to fail. Attorney Springer stated that this is a non-conforming structure. There is a difference between non-conforming use and non-conforming structure. The NH law says you cannot expand a non-conforming structure. You can only make it less non-conforming. Waugh mentioned there is a three part test for expanding non-conforming uses. Springer replied that he did not feel the test would apply because he is talking about a structure and not a use. Cole stated the structure will be spatially the same. The non-conformity will also be the same. Springer stated moving the tower 18 feet away from one property means it is closer to another property so it would become less non-conforming.

Chairman Moore closed the public input portion of the rehearing. There will be no decision tonight. The Board will be working with Attorney Waugh and deliberations will continue on February 24, 2015 at 6:00 PM in the Community House Heald Room.

The Board took a brief recess to meet with Attorney Waugh.

Dennis Wagner, co-owner – ZBA15-01 – Special Exception request relating to Article IV, Section 4.02.05 of the Littleton Zoning Ordinance to allow an Auto Sales Agency at 240 Main St, tax map 78-27, in the Commercial-1 zone.

Chairman Moore introduced the case and accepted it as complete. The abutters were notified, fees were paid, and the notice was in the newspaper. Jerry LeSage will be a voting member for this case.

Dennis Wagner presented his request for an auto sales agency. Dennis brought in five cars prior to being informed of the required Special Exception. Dennis has spoken to Jim McMahon, NHDOT, regarding the driveway entrance. Jim’s response, via email, is in the file. Jim recommended a maximum of nine cars, including display and customers. Dennis explained that the lot is basically surrounded by retaining walls and the sale of cars will not interfere with any abutters. The intent is to have at least 8 cars lined along the back and this will not be a junk yard.

Guy Harriman asked about the use of the building. Dennis Wagner replied that it might be used for detailing. There was discussion about the building being used as a gas station many years ago. Dennis stated he would only be servicing the cars that are for sale and not soliciting services to the public.

No abutters were present. There was no further input. The Board reviewed the findings of the facts. The Board agreed that this location was appropriate due to the fact that there was an auto glass company doing business there previously and that there are auto locations nearby. This is a use people are accustomed to seeing. The property values will not be decreased because the properties surrounding it were all there when it was an auto repair facility. No nuisance or unreasonable hazard will result because there will not be any lighting and running equipment. Adequate and appropriate facilities will be provided. The building and site accommodates the sale of autos.

The Board discussed limiting the number of cars for sale at one time. The application requests 12, but NHDOT recommends 9. Comments were made regarding NHDOT stepping in if there are so many cars that it creates a safety issue along the street.

Art Tighe made a motion to approve Dennis Wagner, co-owner – ZBA15-01 – Special Exception request relating to Article IV, Section 4.02.05 of the Littleton Zoning Ordinance to allow an Auto Sales Agency at 240 Main St, tax map 78-27, in the Commercial-1 zone with the condition that the applicant complies with all Federal, State, and Local regulations. Jerry LeSage seconded the motion. The motion passed unanimously.

January 14, 2014 minutes – approval postponed. November 25, 2014 minutes – Art Tighe made a motion to approve as written. Jerry LeSage second the motion. The motion passed 5-0. December 9, 2014 minutes – Art Tighe made a motion to approve as written. Jerry LeSage seconded the motion. The motion passed 5-0. January 27, 2015 – Art Tighe made a motion to approve as written. Heidi Hurley seconded the motion. The motion passed 5-0.

At 7:50, Art Tighe made a motion to adjourn. Jerry LeSage seconded the motion. The motion passed 5-0.

Submitted by,
Joanna Ray