Town of Sutton

TOWN OF SUTTON

Pillsbury Memorial Hall

93 Main Street

Sutton Mills, NH 03221

Zoning Board of Adjustment

Minutes of the Regular Meeting

Wednesday February 27, 2019

 

The meeting was called to order at 7:03 p.m.  Present at the meeting were Derek Lick, Chair; Betsy Forsham, Vice-Chair; Samantha Gordon and Marc Beauchemin, Members; and Kathryn Schneider, Alternate; Francis Parisi, Vertex Tower Assets, LLC; Jesse Moreno, PE, Site Engineer, Proterra Design Group, LLC; Martin Lavin, RF Engineer, C Squared for AT&T; Greg Costello, SAI/ATT&T; interested residents, Karen Fischer-Anderson and John Jones; and Elly Phillips, Acting Recording Secretary.

 

Chairman Lick designated Alternate Board Member Kathryn Schneider to sit for the vacant member seat.  Mr. Lick advised the applicants that he had just learned that Ms. Schneider and Mr. Beauchemin are engaged to be married, and asked Mr. Parisi if he had any procedural objections regarding the engagement.  Mr. Parisi did not.

 

Mr. Lick called the continued public hearing to order:

Public Hearing:  Case # Z-18-04.  Vertex Tower Assets, LLC and New Cingular Wireless PCS LLC d/b/a AT&T Mobility propose to construct a personal wireless facility consisting of a 190’ tall self-support/lattice style tower on which New Cingular Wireless PCS LLC d/b/a AT&T Mobility will attach telecommunications antennas and electronic equipment at a height of 182’ (centerline), inside a 60’ x 60’ fenced in compound which will also contain ground-based telecommunications equipment at the property located at the end of Wrights Hill Road, owned by Norman Karl Brooks, Sutton Tax Map/Lot 02-865-520 in the Rural Agricultural Zone.

 

The applicants are requesting one (1) special exception and three (3) variances.

  • A Special Exception pursuant to Article XII and Section XII.D.3 for a new Ground-Mounted Personal Wireless Facility;
  • A Variance from Section XII.F.1.b to permit the construction of a 190’ tall facility which will be more than 20 feet above the top height of the main canopy of trees within 200’ of the proposed tower location;
  • A Variance from Section XII.g.8 to permit the construction of a self-support/lattice style structure;
  • A Variance from Section XII.g.9 which requires that all ground mounts shall be of a mast type mount.
  • A variance from the dimensional requirements of Section V.C.3 to permit the construction of the Facility in the Rural Agricultural Zoning District on a lot having frontage of less than 200 feet on a public or private right-of-way. (Note:  ZBA determined this is not applicable – see “Conditions”, final page)

Chairman Lick opened the Public Hearing and summarized the process to be followed during the Public Hearing:

Applicants’ Agent summarizes the project;

Board members provide comments and ask questions of the Applicants’ Agent;

Members of the Public direct comments and questions to the Chair of the Board;

Written comments received;

Applicants’ Agent provides responses and final comments;

The Public Hearing is closed;

Board Members deliberate and then vote, needing three (3) votes in favor for each of the Variance Criteria for the Application to be approved; and

There is a 30-day appeal period to reconsider the decision.

 

Mr. Parisi introduced the people in attendance who represented the application and gave a recap of what he had presented at the December hearing, stating the reasons Vertex/AT&T were seeking variances and a special exception for the proposed cell tower.

 

Mr. Parisi stated that the Town’s Zoning Ordinance limits tower height to 20’ above the tree-line, noting that this was a rather unusual height restriction.   In general, NH towns and cities limit towers to a specific height.  Mr. Parisi added that the mast antenna required by the town is an obsolete technology.  The final variance would be to determine whether the 200 feet of frontage requirement is necessary for this project.  Mr. Parisi informed the Board that the project had undergone site plan review before the Sutton Planning Board and had received approval for the project as presented, subject to Zoning Board of Adjustment approval.

 

Mr. Parisi noted that the Town has hired an independent RFE consultant, Ivan Pagacik, who agrees that there was a gap in coverage and that the Wright’s Hill site fills the gap satisfactorily.  The proposed location would provide service on Routes 103/114 in South Sutton, Newbury and Bradford.  In response to questions from the Zoning Board, Mr. Pagacik advised that at a height of 110’ there is a degradation of coverage.

 

Mr. Parisi observed that the Town of Sutton’s Zoning Ordinances encourages co-location on cell towers (PWSF).  Mr. Parisi felt that a 190’ tower would allow for co-location as well as enhance the ability for  public safety services through First Net.

 

Mr. Parisi acknowledged that the tower height could be reduced.  However, he cautioned that reducing the height of the tower could be a short-sighted approach.  Mr. Parisi showed photo simulations of the balloon tests in three locations, simulated at a height of 150’ and compared them to the actual 190’ photos.  He opined that the visual difference was limited but recognized that the visual difference was subjective.

 

Mr. Parisi discussed the various tower types advising that the monopole type structure is very highly engineered and difficult to maintain and that the mast style is no longer technically feasible.  Mr. Parisi presented slides showing monopole and lattice towers, opining that at ½ mile away, you cannot discern the structure type.

 

Mr. Parisi concluded that the proposed cell tower meets the special exception requirements as the site is appropriate for the use and structure and the use is not detrimental, injurious, noxious or offensive to the neighborhood.  Mr. Parisi observed that people are getting used to cell towers, and the tower would fill a gap in coverage for the area.  There is no nuisance or hazard to vehicular or pedestrian traffic.   The site is remote, and the area is fenced.  Adequate and appropriate facilities are provided to ensure the proper operation of the proposed use or structure (site plan).  The proposed use is consistent with the spirit of this ordinance as towers are allowed in all districts by special exception.

 

Mr. Parisi addressed variance criteria stating that there is no diminished value as real estate studies/sales show.  The variance is not contrary to the public interest as it provides coverage and enhances public safety.   The special topographic conditions justify the use for the site (there are no tall buildings).  Mr. Parisi advised that the federal government has enacted legislation regarding cell tower variances which prevail over local variance criteria.  The Federal regulations ask if there is a gap in coverage and if there are alternative locations.   Mr. Parisi concluded by respectfully requesting that the Zoning Board approve the cell tower as proposed.

 

Chairman Lick asked for comments and questions from the Board and recognized Samantha Gordon.

 

Ms. Gordon recollected that the tree height analysis was an average of 60’ with tallest trees 70-75 feet.  Under the local ordinance that gets the permitted cell tower height to 95’.

 

Ms. Schneider observed that based on the external evaluation by Mr. Pagacik, there is minimal difference in coverage between 190’ to 130’, and that at 110’ was where it starts to show a greater impact in coverage.  Ms. Schneider wondered whether a tower height of 130’ might be adequate to serve the needs of the community as well as the partners.

 

Mr. Parisi stated that the tower height could not be reduced to anything less than 150’.  However, their FTE studies  showed a 10.6% population loss and an 8.1% area loss from 190’ (182’ Vertex) to 150’ (142’) and an 8.7% population loss/6.6% area loss from 190’ (182’ Vertex)  to 150’ (142’ Vertex).  Mr. Parisi emphasized that reducing the height of the tower will leave coverage gaps and/or increase the need for future towers and will reduce co-location opportunities.  Mr. Parisi advised that First Net will not go forward at a height that is less than 150’.   In addition, Vertex would require co-location in order to make the project economically feasible.

 

Ms. Schneider asked about the differences between lattice-type towers and monopole towers specifically as it pertained to co-location.

 

Mr. Moreno gave a detailed description of the different types of towers.  The lattice tower has legs with braces and is triangular shape.   The monopole towers have the electronics contained inside the pole which poses maintenance difficulties.  This is true for flush mount and non-flush mount installations.  Also, monopole structures are heavier and would require extensive infrastructure (roads) to be built as well as the use of cranes and other heavy equipment to construct the tower.  This would not only create more expense, it would also have a greater impact on the environment.  Constructing a lattice type tower, which is triangular in shape, is similar to building with giant erector sets in that the components can be brought up in pieces.   The lattice tower weighs less and is easier and less expensive to install in remote locations for reasons cited above.

 

Mr. Moreno also discussed the antenna  types used with the lattice style towers.  The proposed antennas are 12’ across and can’t be crammed into a structure.  Mr. Moreno advised that antennas are getting smarter.  There are less electronics on the bottom, and more on the top.  This facilitates maintenance.

 

Mr. Beauchemin felt there was a visual difference between the 190’ tower vs. the 150’ tower and that the slides didn’t show the views close up.  Mr. Beauchemin wondered about those visuals.  He was advised that it was difficult to see a tower from close up.

 

Mr. Lick asked about the non-flush vs. the flush mount installations and specifically whether a flush mount is practical.  The response was that either type had similar challenges.  The flush mount had an internal module which was shrouded all the way from top to bottom.  Whether flush or non-flush, the electronics were internal.  On the flush mount install, the antennas needed to be spaced further apart.

 

Mr. Lavin was asked about the RF effect at each 10’ drop of antenna location.  Mr. Pagacik’s analysis did not address 10’ increments.  Mr. Lavin provided a detailed explanation of RF coverage and types of coverage noting that the towers were addressing wireless needs inside buildings, vehicles, and outdoors.  Between 182-142 feet (height is the antenna locations), there was a 10% difference in population and 8% in area (vehicles, outdoor etc.).  At 130’ it was 15% population and 12% area.  Mr. Lick asked, with respect to the different pole types, how are add-ons affected.  Mr. Lavin advised that mono-poles are more difficult to add on to in the future and have height limitations.   Add-ons are easier on lattice type towers and they are also easier to increase height.

 

Ms. Gordon noted that since the technology is continually evolving, the lattice seems to allow for more flexibility and adaptability.

 

There was a discussion regarding visibility of the various tower types.  Mr. Parisi stated that it was difficult to discern at a distance and is also dependent on the antenna type.  Mr. Parisi advised that because you can see through the lattice tower some people find them to be less visible.  Generally, different tower/antenna types are apparent at the base of the tower or from 100’ away, but for the most part, the public wouldn’t be able to distinguish differences.

 

PUBLIC COMMENT:

Mr. Lick opened the hearing for public comment.

 

Karen Fischer-Anderson asked if there was a difference in the wind noise factor between a lattice tower and the monopole tower.  The response was that when ambient noise is measured, they did not know of any testing for tower type.  The generator sets are quiet and sound much like a car idling.  Ms. Anderson asked about whether there was a huge difference in cost between the monopole vs. lattice.  Ms. Fischer-Anderson was advised that there was a significant cost difference in the construction process.  Lattice towers require more labor, but monopoles are more expensive because of steel tariffs and construction costs.

 

John Jones, Wadleigh Hill, recollected hiking up Mt. Kearsarge and about halfway to the summit it sounded like a jet engine at Logan airport.  Mr. Jones stated his concern regarding the fate of the zoning ordinance.  He emphasized the scenic qualities of Sutton and said that the ordinance allows for towers no more than 20’ above the tree line for a reason.  He stated that now you’re going up 120’ further and that is quite a bit to ask.  The spirit of the ordinance is important.  People like it the way it is.  Mr. Jones felt that there was no compelling reason why the wireless people need to put this up.  Mr. Jones thanked the ZBA members for their time and consideration.

 

Mr. Lick reported that the Board received two letters which he entered into the record:

Gerry Buckley, an abutter, would like to see the camouflage requirement (tree-type).

Leslie Enroth objected to the variance.  Ms. Enroth helped to draft the town’s PWSF ordinance and felt it was enacted for good reason, replacing an ordinance that allowed for taller towers.  Ms. Enroth felt that if the application were to be approved it would be ignoring the wishes of the town.  The proper way to do it would be to re-write the ordinance.

 

Mr. Parisi was asked if any NH towns were using First Net.  Mr. Parisi responded that the partnership began two-years ago, and States had until 2017 to opt in.  All 50 states have opted into the program.  Deployment in NH began in 2018 and will take some time to implement.    Mr. Parisi underscored the coverage gap in Sutton.  Were it not for First Net, it would not be economically viable for Vertex to develop towers in the area.  The population is not sufficient to attract carriers.  Mr. Parisi expressed confidence that if AT&T comes on, Verizon, T-Mobile and Sprint will follow due to the competitive nature of the industry.

 

DELIBERATIVE SESSION

Mr. Lick closed the public hearing and opened deliberations.  He felt the Board should first consider whether a variance from the dimensional requirements of Section V.C.3 to permit the construction of the Facility in the Rural Agricultural Zoning District on a lot having frontage of less than 200 feet on a public or private right-of-way was required for this use.  Mr. Lick cited the ordinance.  Mr. Lick observed that this section pertains to Dwellings.

 

Betsy Forsham made a motion that the Zoning Board of Adjustment does not need to consider this request because the proposed tower is not a “dwelling.”  Samantha Gordon seconded the motion.  The motion passed by a unanimous affirmative vote.

 

The Board considered requests for variances related to the type of tower:

  • A Variance from Section XII.g.8 to permit the placement of antennae arrays with diameters greater than the allowed 4 feet, to 12 feet;
  • A Variance from Section XII.g.9 which requires all ground mounts to be of a mast type mount, to allow construction of a self-support/lattice style structure.

Ms. Gordon noted that the technology specified under Section XII.g.9 was obsolete.  It cannot be a mast type.  The tower needs to be either monopole or lattice.  Ms. Gordon pointed out the difficulty with imposing conditions and upholding an ordinance that was not technically feasible.

 

Ms. Forsham didn’t have a particular preference between monopole or lattice-type towers.

 

Ms. Gordon stated that the lattice-type seemed reasonable for the location and for a longer lasting solution.  Ms. Schneider agreed.  Mr. Beauchemin pointed out that construction of a lattice tower would have less environmental impact.

 

Mr. Lick noted that there was a 1-2’ difference in the antenna array location.  It was noted that Section XII.g.8 requires that “Any antenna array placed upon an existing or proposed mount, utility pole, or transmission line mount shall have a diameter of no more than 4 feet, exclusive of the diameter of the mount.”  The proposed array is 12’ in width.  Ms. Forsham observed that the ordinance is out-of-step with the technology.  Mr. Beauchemin indicated that for the purpose of the Board’s deliberations conditions for 8 and 9 were consistent with each other.

 

The Board reviewed the five variance tests:

(1) The variance will not be contrary to the public interest.

The tower will enhance wireless communications.  The Board agreed this was in the public interest.

 

(2) The spirit of the ordinance is observed.

As demonstrated by specific testimony and models, the visual impact of the proposed width of the poles and difference in arrays width at the heights are minimal.  Gaps in coverage will be met.  The lattice is less obtrusive as you can see through it.

 

(3) Substantial justice is done.

There are already other similar towers located in the Town of Sutton and the proposed tower fills a gap in coverage which provides a public benefit.  The Board agreed this test had been met.

 

(4) The values of surrounding properties are not diminished.  Studies and market analysis have shown that an existing or proposed communications tower has no measurable impact on nearby property values. The Board agreed there was no diminished value.

 

(5) Literal enforcement of the provisions of the ordinance would result in an unnecessary

hardship. The Board agreed that hardship was demonstrated due to technological infeasibility.

 

Samantha Gordon made a motion to grant a variance from Section XII.g.9 to permit the construction of a self-support/lattice style structure.  Betsy Forsham seconded the motion.  The Board discussed the motion.  Mr. Beauchemin wondered if a precedence was set for future towers by granting this motion.  Betsy Forsham felt that every situation before the Zoning Board was unique and should not be influenced by a past ruling.  Chairman Lick called for a vote.  The variance was granted by a unanimous affirmative vote.

 

The Board considered a variance from Section XII.g.8 to permit the placement on a mount of antenna arrays with diameters of 12 feet rather than 4 feet.

 

The Board reviewed the five variance tests.

(1) The variance will not be contrary to the public interest.

The Board agreed for the same reasons previously stated.

 

(2) The spirit of the ordinance is observed.

The board discussed the 12 foot antenna array vs. the 4 foot requirement noting that the 4 foot requirement is not feasible for current technology.  The Board agreed the test had been met.

 

(3) Substantial justice is done.

There are already other similar towers located in the Town of Sutton and the proposed tower fills a gap in coverage which provides a public benefit.  The Board agreed this test had been met.

 

4) The values of surrounding properties are not diminished.  Studies and market analysis have shown that an existing or proposed communications tower has no measurable impact on nearby property values. The Board agreed there was no diminished value.

 

(5) Literal enforcement of the provisions of the ordinance would result in an unnecessary

hardship. The Board agreed that hardship was demonstrated due to technological infeasibility.

 

Samantha Gordon made a motion to grant a variance from Section XII.g.8 which states that the diameter of an antenna array placed on a mount can be no more than 4 feet, exclusive of the diameter of the mount, to allow the diameter to be 12 feet.  Marc Beauchemin seconded the motion.  The motion passed by a unanimous affirmative vote.

 

The Board considered the Variance request from Section XII.F.1.b to permit the construction of a 190’ tall facility which will be more than 20 feet above the top height of the main canopy of trees within 200’ of the proposed tower location.

 

A lengthy discussion ensued.  Mr. Lick referred to the RFE reports which confirm that there is a coverage gap.  The height of 120’ is required to have one antenna array.    The ordinance encourages co-location.  First Net requires 150’.  You can have four antenna arrays at 150’.  The ordinance requirement of 20 feet above the tree-line was revisited.  Ms. Schneider was not convinced that a height of 120’ was necessary.

 

Ms. Gordon felt that a tower height of 150’-160’ was reasonable.  Ms. Gordon emphasized the statistics relating to coverage and the benefits established by adequate coverage when responding to emergencies and natural disasters.

 

The photo simulations were discussed.  The consensus of the members was that there was a substantial difference in visibility at a 190’ vs. 150’.  At 150’ the visibility was not intrusive.  Opinions were expressed that in keeping with the spirit of the ordinance, the lower height was better.   Although 130 feet might be ideal, it would not be economically feasible for the developer.  The Board agreed to not approve the tower at 190’ noting that based on federal requirements, 120’ would provide acceptable coverage.

 

Ms. Gordon made a motion to approve the variance at a maximum height of 150’.  Ms. Forsham seconded the motion.

 

The Board reviewed the five variance tests.

 

(1) The variance will not be contrary to the public interest.

Ms. Gordon felt that people will be thrilled  to have the coverage in that area.  She discussed the fact that land lines are no longer in common use and that there is a public safety benefit.  When you think about the differences at 120’ and at 150’, the benefit of providing additional coverage and the minimal difference in visibility, it is not contrary to the public interest.  The Board agreed.

 

(2) The spirit of the ordinance is observed.

Given the photo simulations, aesthetics are honored.  The tower is well hidden and will be functional for First Net and viable for Vertex.   The Board agreed the test had been met.

 

(3) Substantial justice is done.

For reason previously articulated, the Board agreed this test had been met.

 

4) The values of surrounding properties are not diminished.  In addition to reasons previously articulated, the photo simulations were helpful.  At 120’—150’, the tower was barely noticeable. The Board agreed there was no diminished value.

 

(5) Literal enforcement of the provisions of the ordinance would result in an unnecessary

hardship. The Board agreed that 150’ was necessary in order to have a tower due to First Net’s requirements.

 

Mr. Beauchemin asked that a condition be placed that if the cell tower sited is not used for a period of two years the applicants will remove the tower at the applicant’s expense.

 

Mr. Lick called for a vote on the variance.  The variance was granted by a unanimous affirmative vote.

 

The Board considered the applicants request for a Special Exception pursuant to Article XII and Section XII.D.3 for a new Ground-Mounted Personal Wireless Facility;

 

(1) The site is an appropriate location for the use or structure.

The Board agreed the location is appropriate and meets the coverage gap.

 

(2) The use will not be detrimental, injurious, noxious or offensive to the neighborhood.

The Board discussed the matter of noise but noted that the noise was from generators which came on from time to time.  New technology has quieter generators, and no one is around to hear the sound.

 

(3) There will be no undue nuisance or serious hazard to vehicular or pedestrian traffic.

The area is remote and will not affect vehicular or pedestrian traffic.

 

(4) Adequate and appropriate facilities will be provided to ensure the proper operation of the

proposed use or structure.

The area is fenced, and the planning board has approved the site plan.

 

(5) The proposed use or structure is consistent with the spirit of the ordinance.

The proposed Facility has been designed to fulfill a coverage gap.  120 feet is required for coverage.  At anything less than 150’ the town risks losing the tower due to First Net’s requirement and the need for co-location to make development viable.

 

Derek Lick made a motion to approve the Special Exception for a new Ground-Mounted Personal Wireless Facility.  Kathryn Schneider seconded the motion.  The motion passed by a unanimous affirmative vote.

 

In conclusion, the following has been GRANTED , WITH CONDITIONS, concerning Case No:  Z-18-04 on the appeal of Vertex Tower Assets, LLC and New Cingular, Wireless PCS LLC d/b/a AT & T Mobility (Applicants);  Norman Karl Brooks (Owner) Tax Map/Lot # 02-865-52, Wright’s Hill Road in the  Rural Agricultural Zone regarding Zoning Ordinance Variances and a Special Exception:

  • A Special Exception pursuant to Article X11 and Section X11.D.3 for a new Ground- Mounted  Personal Wireless Facility;
  • A Variance from Section X11.F.1.b to permit the construction of a 150’ tall facility;
  • Variances from Section X11.G.8 & 9 to permit construction of a self-supporting lattice style                  structure, with antennae array exceeding the stated permissible dimensions;
  • A Variance from the dimensional requirements regarding road frontage of Section V.C.3, (delete this as it was determined that it was not necessary, so we did not grant a variance for it, or say “see below”)

 

With the following conditions:                   

  1. The Board determined that a variance from Section V.C.3 was NOT required as no dwelling is involved.
  2. The self-supporting lattice style cell tower may be no higher than 150 feet;
  3. If the cell tower is erected but not used for a period of two years, the applicants will remove the tower at the applicant’s expense.

 

Mr. Lick reiterated that there is a 30-day appeal period to reconsider the decision.  Anticipating that the Board might require the tower to be 150 feet, Mr. Parisi submitted plans for the compound for a self-supporting lattice style cell tower at a height of 150 feet, for the ZBA’s records.

 

Minutes:  The minutes of February 20, 2019 were unanimously approved as written.

 

Old Business:  Copies of the amended Rules of Procedure, approved on February 20, 2019, were distributed to members.

 

There being no further business, the meeting was adjourned at 10:00 p.m.

 

Respectfully submitted,

 

Elly Phillips

Acting Recording Secretary