BOA 20081110

APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

November 10, 2008

The Chairman Svetlana Pal= iy called the meeting to order at approximately 7:00 pm.

The acting Secretary David Hennessey called roll:

PRESENT:

ABSENT:

Svetla= na Paliy, Robert Molloy, Peter McNamara, David Hennessey, Kevin O’Sull= ivan (arrived at approximately 7:07pm), Alternate Bill Kearney, Alternate Chris LaFrance, Alternate Lance Ouellette, Planning Director/Zoning Administrat= or Jeff Gowan

None.<= /p>

Ms. Paliy appointed Mr. K= earney to vote in Mr. O’Sullivan’s absence.

REQUEST FOR REHEARING

7:00pm

Case #2413 HYNES, Jeffrey – 75 South Shore Drive - Map 31 Lot 11-265 – Seeking an “Area” Variance to Article III, Section 307-12 to permit a single family structure on a lot ha= ving 0.13 acres of land, 50ft. of frontage and a side setback of 3ft. where a lot size of 43,560 SF, 200ft. frontage and a side setback of 15ft. is required = at 75 South Shore Drive in the Residential District. NOTE: This request duplicates a request granted in 1988. Seeking re-approval without a restriction on seasonal use – by Donald Crossley. This will be a hearing only to dec= ide to grant or deny the request. No testimony will be taken.

Mr. Gowan stated at the l= ast meeting the Board re-voted on a 1988 variance decision removing the stipula= tion that the property remain seasonal with the condition that a certified/licen= sed septic designer/installer certify that the system in place was in good work= ing condition. He had the documen= t from a licensed individual (designer/installer) that confirmed that the system w= as in good working order. Mr. Go= wan informed the Board that an application for an appeal was received for a mot= ion to re-hear the case. He reque= sted legal opinion and received an e-mail from Attorney John Ratigan dated November 7, 2008.

The opinion was read into= the record as follows:

“I've read the 10/16/08 ZBA meeting minutes and the Board's notice of decision of that same date, a= long with Mr. Crossley submittal, which was received 11/5/08.

The ZBA had before it the issu= e of whether to, in effect, lift the board's earlier condition of variance appro= val that limited the use of the residence to seasonal use. On October 16, 2008, it did so by voting that the variance criteria for an area variance had been met, = and it conditioned this approval upon a certification from "a certified he= alth inspector or certified septic engineer that the septic system was sufficien= t to handle the waste from a property of the lot's size."=

The filing by Mr. Crossley rai= ses the question of whether the Board of Adjustment has the authority to overri= de a Pelham health ordinance (Article K), which he contends requires that any ye= ar round residence must have a state approved septic system.=

A threshold issue for the Boar= d to consider is whether Mr. Crossley has standing to bring this rehearing request. = In Goldstein v. Bedford, 154 N.H. 393 (2006), the court held that per RSA 677:2 and RSA 677:4, an individual seeking rehearing relief before the ZBA or bef= ore the court must show that he or she is an "aggrieved person", which requires a showing that he or she has some direct, definite interest in the outcome of the zoning decision itself. Whether a party has a sufficie= nt interest in the outcome is a factual determination to be made in each case. Factors to be considered would include: proximity of the person requesting rehearing to the site for which approval has been granted, the type of change proposed, the immediacy of the injury claimed, and wheth= er the person requesting rehearing participated in the administrative hearings= .

If the Board concludes that Mr. Crossley has standing, then it can turn to whether Mr. Crossley's request f= or rehearing has merit, which it will either grant or deny.<= /i>

In the event the Board conclud= es that Mr. Crossley does not have standing, in addition to articulating how he does not meet the person aggrieved test discussed above, if the Board is otherwi= se inclined to deny his rehearing request, I encourage the Board to discuss Mr. Crossley's failure to advance reasons sufficient to grant a rehearing on the record and make a motion to provide that as a separate ground for denial.

Mr. Crossley's "appeal&qu= ot; doesn't raise an issue relating to the criteria for the granting a variance. Instead, it advances an argument that can be most generously characterized as stating that the variance should not have been granted bec= ause it violates Article K. I read the Board's grant of a variance relief to the applicant as extending only to the condition that the property be only used for seasonal use, and subject to the condition specif= ied by the Board about the adequacy of the septic system. The Board didn't grant relief as to any non-zoning regulations that may effect the property. It only granted relief with respect to it's prior condition. Article K appears to be an issue of jurisdiction for the Health Officer, if it is applicable at all.”

Mr. McNamara said there w= as further language contained within the decision referenced by Attorney Ratig= an. He said a person had to have a dir= ect, definite interest in the zoning decision itself; the fact that an individual lives or pays taxes to a town does not by itself give that individual a dir= ect definite interest in town zoning decision.= He said he didn’t see the request for rehearing and asked if M= r. Crossley was present. Mr. Cro= ssley was not present. Mr. McNamara didn’t know if Mr. Crossley was an abutter. Mr. Gowan said Mr. Crossley lived = on the same road, but was not a legal abutter within 200ft. as the Town typically considered. He said Mr. Cross= ley articulated to him (not in writing) that because he lived on the pond he co= uld be negatively impacted by a septic system that was leaching into the pond, = in terms of water quality. Mr. McNamara said the Board’s decision didn’t take any authority aw= ay from the Board of Health. Mr. Hennessey stated on the contrary, the Board tried to go back to the Health Officer and were told that he may decline to give an opinion, which was the reason the Board added extra language about going to a certified septic installer.

Mr. Gowan said separate f= rom the request in front of the Board, Mr. Crossley went to the Board of Selectmen = and intended to bring a complaint to the Selectmen which the Health Officer will weigh in, giving his opinion as the Chair of the Board of Health.

Mr. McNamara stated that = the Board ruled on a variance request where Mr. Crossley had the opportunity to= come and be heard. He said perhaps= an argument could/could not be made that Mr. Crossley had standing as someone living on the same street. Ho= wever, based on the merits of the case, he said there didn’t appear to anyth= ing new. He didn’t see wher= e the Board made an error of law. H= e said the Board of Health and Health Officer still had standing to determine whet= her the septic system was adequate. He believed the only thing the Board did was take off the ‘seasonal use&= #8217; restriction and placed appropriate conditions.

Mr. Molloy believed the B= oard raised the bar higher by placing the conditions on the variance.

Mr. O’Sullivan arri= ved. Mr. McNamara made a motion to deny= the request for rehearing. Mr. Mo= lloy seconded the motion. Ms. Paliy informed that Mr. Kearney would vote on the case.

MOTION:

(McNamara/Molloy) To de= ny the request for rehearing on two basis: 1) not sufficient information in fron= t of the Board to determine whether Mr. Crossley is an affected party and therefore has standing; and 2) on the facts of the case itself, there is = no new evidence or sufficient evidence of a mistake to justify a rehearing.<= span style=3D'mso-spacerun:yes'>

VOTE (by hand):

(5-0-= 0) The motion carried.

The Board voted in the affirmative to deny the request for rehearing.

HEARINGS

7:09pm

Case #2414 – PETROSKI, Steven - 54 Tenney Road – Map 21 Lo= t 3-94 seeking an “Area” Variance to Article III, Section 307-12 Table= I to permit a carport to remain less than 30ft. from the front property line.=

Mr. O’Sullivan read= the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification.

The applicant, Mr. Steven Petroski came forward to discuss his area variance request. He explained the reason for the va= riance request was because he was in violation of the code that requires a 30ft. setback. He would like to be allowed to build a carport to be built on the site that was prepared and it= had started to be built.

Mr. Gowan said the Code Enforcement Officer noticed a structure being built close to the road and f= ound there was no building permit. The property owner was notified and came into the office right away. Mr. Gowan said Mr. Petroski expres= sed to him that he didn’t realize that he was in violation of the setback nor did he realize that a building permit was needed for a carport. He said the setback was 6ft. where= 30ft. was required. He said the Hig= hway Safety Committee unanimously agreed that the location of the structure didn’t pose a risk to health and safety. Photographs were included with the application that showed the structure with relation to the road.

Mr. Petroski read aloud t= he variance criteria as submitted:

1. The variance will not be contrary = to the public interest because: It will en= hance the rural setting of the area and give added value to the property.

2. Special conditions exist such that= literal enforcement of the ordinance results in unnecessary hardship because:

“Area”

i. an ar= ea Variance is needed to enable the applicant’s proposed use of the prop= erty given special conditions of the property because: Seasonable weather conditions in adjacent property would not allow = the construction of this carport.

ii. The = benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance because: = The proximity of the carport to my home could not be achieved if not built where requested.

3. The Variance is consis= tent with the spirit of the ordinance because: With this one variance if approved all other codes will be met. <= /p>

4. Substantial justice is= done because: It will allow me to utiliz= e my property for greater value without decreasing surrounding lots. =

5. The value of the surro= unding properties will not be diminished because: I believe it will give added value to the surrounding lots as well as added v= alue to my own.

Mr. Gowan discussed the applicant’s property, where wetlands and drainage easement were locat= ed and told the Board that the applicant had been parking his car in the location = of the carport for a number of years. Mr. Petroski said they had parked their cars in that location for th= irty years. He then discussed how = the structure would be constructed. He asked that the Board consider that the materials purchased, in hopes of building the carport, totaled approximately $1200.

There was no public input= .

Mr. Hennessey asked that = Mr. Petroski read his Letter of Intent into the record.

Mr. Petroski read aloud h= is Letter of Intent – received by the Planning Department October 23, 2008 –

“The proposed carport does not meet the town code of 30 feet minimum set-back from my front property line. No suitable land exists in proximi= ty to my home other than this site. In the past three years, I have had two total left knee replacements and still remain with a permanent walking disability. “

Mr. Petroski told the Boa= rd that his property adjacent to his home sloped and it would be impossible for him= to move the carport back.

Mr. Hennessey asked Mr. P= etroski if he had handicapped plates on his vehicle. Mr. Petroski said he had a placard= . Mr. Hennessey believed that would = be the strongest argument because the rules and regulations call for the Town to m= ake reasonable accommodations for folks who have disabilities. He believed that was a reason for = the Board to grant the variance. = Mr. Petroski said he received a permanent placard after his first knee surgery.

Mr. O’Sullivan conf= irmed with Mr. Gowan that the Building Inspector would review the structure for c= ode if the variance was granted. = Mr. Gowan said when a permit was pulled it came with inspections.

BALLOT VOTE:

Ms. Paliy – Yes t= o all criteria

Mr. Molloy – Yes = to all criteria

Mr. McNamara – Ye= s to all criteria

Mr. Hennessey – Y= es to all criteria

VOTE:

Mr. O’Sullivan – Yes to all criteria=

(5= -0-0) The motion carried.

AREA VARIANCE GRANTED

7:29pm

NEW CINGULAR WIRELESS PCS, LLC (AT&T) c/o Stephen D. Anderson / Owner – DETELLIS, Geoffrey= & Nora - 9 Rocky Hill Road - Map 7 Lot 4-185-2 – Seekin= g a “Use” Variance to Articles III, IV, V, X, XII Sections 307-7, 307-16(A), 307-18, 307-58(B)(3), 307-58(C)(2), 307-58(C)(3), and 30788A to permit a Personal Wireless Facility and Tower use on property situated in t= he Residential Zone, not in the Telecommunications Overlay Zone, and with Side Setbacks of less than 175ft. and a Fall Zone of less than 100% of the heigh= t of the Tower including any antennas or other appurtenances.

Mr. O’Sullivan read= the list of abutters aloud. There were no persons present who did not have their name read, or who had a problem with notification.

Attorney Stephen Anderson= of Anderson & Kreiger, LLP, presented the variance request to the Board. He stated they were requesting a u= se variance to site the tower facility in the residential district and setback variances from the West and Easterly lot lines; the law requires a 175ft. s= ide setback and a fall zone setback from the westerly lot line of 150ft. It was his understanding that the westerly abutter (who was present) supported the application. Attorney Anderson said the application contained= a nineteen page letter that outlined the reasons why they felt the facility w= as appropriate. He noted that the packet of information contained a letter of authorization from the land own= er and a letter of authorization from the westerly abutter land owner. He stated that there was a paper easement on the property for a driveway, but the actual driveway was constructed in a different location that the paper easement. The proposed tower facility was wi= thin the location of the paper easement so the parties have consented to the tow= er being in that location and they would amend the easement (per the consent letter in the packet) to allow the facility to be in that location. Attorney Anderson said a radio frequency report = had been done and showed why the tower facility in the area was necessary. The report contains a number of co= verage maps. They had evaluated the = towers in Pelham and the surrounding areas (within five miles) to determine if any= of them could serve as an alternative.

Attorney Anderson continued to summarize the information that had been provided to the Board. Contained therein was a copy of the decision by the New Hampshire Supreme Court for the Daniels v. Londonderry (953 A.2d= 406 – N.H. 2008) case. = The case involved a 170 foot monopole in a residential district that required u= se and dimensional variances. At= torney Anderson stated that the Supreme Court adapted the traditional variance test. He knew the Board was aware of the Telecommunications Act because there was an important First Circuit case th= at came out of Pelham. He said t= he Daniels case (August 2008) came after the Pelham case and spelled out how <= st1:place w:st=3D"on">New Hampshire bo= ards should interpret area and use variance laws under the Telecommunications Act. Also provided were a num= ber of appraisal reports that were in the record from the Daniels’ case which evaluate tower facilities in = New Hampshire and whether or not they have adverse af= fect on property values. Attorney = Anderson said the appraisal reports indicate that this type of facility doesn’t adverse= ly affect property values in their vicinity.&= nbsp; He noted that they had engaged an appraiser to look at the proposed tower/location; the report was not yet completed because they wanted to rev= iew the crane test that had been done earlier in the day. A crane was put up in the driveway= , as close as they could get it to the facility’s proposed location; a red balloon was flown indicating the facilities height and a number of photogra= phs of the site and surrounding areas were taken of the crane and balloon. The final item in the packet of information was a co-location commitment from AT&T; they will encourage co-location on the tower to minimize the number of new facilities in Town.<= span style=3D'mso-spacerun:yes'>

Attorney Anderson approached the Board and provi= ded them with photographs and additional exhibits. The photographs were taken earlier= in the day of the crane test. Th= ey will be providing a view analysis using photo simulations of the proposed t= ower from a variety of vantage points to show what it would look like from diffe= rent locations. He explained that = the site was heavily wooded and on a hill.&nbs= p; The tower would be below the crest of the hill and screened from vie= w by vegetation. Attorney Anderson discussed= the notification they had provided regarding the meeting and the crane test so people could have an idea of what the tower would look like.

Attorney Anderson then reviewed the proposed site design. He explained that the= y were proposing a 150ft. tall monopole; this height is 49ft. lower than the Town’s Ordinance allows for this type of tower facility. There will be a 50ft.x50ft. fenced equipment compound within which AT&T will have a 12ft.x20ft. equipment shelter. Cables will be withi= n the tower. There will be twelve antennas arranged within three sectors of four antennas. There will be a diesel generator o= n the site on a 4ft.x11ft. platform which will provide backup power. The site will be ordinarily be ser= ved by telephone and electric facilities which will be brought in underground thro= ugh the existing service on the property.   The facility would be nestle= d in the trees, retaining as many of the trees as possible. The existing paved driveway would = be used up to the point where they leave the driveway to access the compound u= sing a gravel driveway.

Attorney Anderson directed the Board to review p= age 8 of the application which addressed the use variance criteria. He summarized the information cont= ained therein. He then asked the Bo= ard to review the area variance criteria contained on page 16. Attorney Anderson understood that there were mem= bers of the public that may have comments. He said if they had questions, there were extra copies of the application that could be provided to them.

Mr. Kevin Brewer, AT&T employee reviewed the tower coverage maps.= He said they reviewed alternative towers, however they wouldn’t provide coverage in the targeted Mammoth Road area.&nb= sp;

Mr. Hennessey understood = under the Telecommunications Act and under the Town’s zoning, they weren’t concerned with AT&T’s problem, they were concerned = with the coverage of Mammoth Ro= ad. He said he was looking for evidenc= e of that whole for all carriers; the coverage in general. Attorney Anderson said the applicant was AT&= T and they had a significant coverage gap and that in itself justified the application. He said if anoth= er carrier did not have a significant gap and they did and they were somehow b= eing favored, that in itself would be a violation of the anti-discrimination provision of the Telecommunications Act.&n= bsp; He said they were focusing on the effective prohibition provision of= the act which essentially says if the ordinance is strict enough to prohibit or= has the effect of prohibiting wireless coverage that they can get a facility th= at would not otherwise be allowed under the ordinance. He said Pelham allowed these facili= ties in the industrial and business areas, which were spread out far from the ar= ea being discussed. He said if t= hey were to put a facility in one of those areas, they wouldn’t be able to service the area being discussed from that location; as a result they had to review alternatives in Pelham and within five miles from Pelham. He said they had done this in the = Radio Frequency report to see if they could use an existing structure to cover th= e (Mammoth Road) area; the answer was they could not. As a result of being no feasible alternative, that prong of the Telecommunicatio= ns Act was met and the Daniels case instructs them that they had to take that into account when evaluating hardship.

Mr. Hennessey said that w= as not what he was told. His understanding was that an applicant’s problem didn’t translate into the Town’s problem. He said if there was a hole in cov= erage, it was appropriate for a carrier to come forward and indicate they would ne= ed to go beyond what was allowed. He said it was not confined to AT&T; they needed to show the Board that th= ere was a problem in coverage, period. He suggested that the Board obtain legal opinion.

Mr. McNamara asked for an explanation of the different types of towers. Mr. Brewer discussed the differenc= es between a monopole, mast and lattice tower. Mr. McNamara asked if a monopole w= ould be thicker than a mast. Mr. B= rewer said the visible portion of the monopole would be thicker. Mr. McNamara asked where the co-lo= cation would be located within the 150ft. tower.&= nbsp; Mr. Brewer said it could exist within 10ft. increments. Mr. McNamara questioned what the difference was in effectiveness between the increments. Mr. Brewer said if the tower was b= uilt lower the co-location would be at the tree line. It would be difficult to have some= one want to be on the tower because of the height. Mr. McNamara noted that the Town&#= 8217;s regulations contained a one-time allowance for a 20ft. addition to a tower = to promote co-location. He discu= ssed his understanding of digital versus analog connections and asked for clarification. Mr. Brewer sai= d the connections did the same thing; however with a digital signal a phone could receive through a lower signal strength and the phone had the capability to reprocess the signal. He said= a signal was either received or not, it wasn’t like analog where it wou= ld fade in and out. Mr. McNamara= said he noticed in the balloon display earlier in the day the location of the cr= ane was not at the location of the tower. Mr. Brewer believed it was approximately 60ft. removed. Mr. McNamara asked what the differ= ence in height would be for the two locations.&= nbsp; Mr. Brewer said he didn’t have the information. Attorney Anderson said he could get the data fro= m the plan. He showed the location = of the proposed compound area and where the crane was located; the height would be= a difference of approximately 10ft. He said they were having the photo simulation done to show the difference of where the crane was located and what the actual tower would b= e; every effort would be made to simulate the exact height of the tower.

Ms. Paliy questioned if o= ther carriers could bounce a signal off the tower or place equipment on the tower. Mr. Brewer said the on= ly way to gain benefit from the tower was to be on it. He explained the types of technolo= gy used in wireless phones and noted there wasn’t much roaming anymore. =

Mr. O’Sullivan aske= d what percent of the tower would be used for AT&T and what percent would be u= sed for co-location. Mr. Brewer s= aid it would depend solely upon the engineering of the tower. He said they build their towers so= they could handle five carriers. M= r. O’Sullivan understood with towers someone was either a landlord or a renter. He said in this case AT&T would be the landlord if the tower was approved. He questioned if there were towers= in the surrounding area where AT&T could be the renter and provide the same coverage if they used multiple towers.&nbs= p; Mr. Brewer said they reviewed the sites around Mammoth Road to see if there was a = nearby tower. He said they didn̵= 7;t review using multiple towers to achieve the same goal. Mr. O’Sullivan asked if the = tower, being 150ft. would require lighting. Mr. Brewer said they would do an air space analysis, but didn’t see that it would be lighted.

Mr. Kearney confirmed tha= t the applicant’s contention was that AT&T didn’t have coverage in the area. Mr. Brewer said he wasn’t aware of the coverage of the other carriers. Mr. Kearney said Verizon had cover= age in the area. He asked if the pro= posed tower would achieve coverage for the entire length of Mammoth Road. Mr. Brewer answered no; half the l= ength of Mammoth Road would be covered. Mr. Kearney confirmed that there would still be a coverage gap for AT&T. Mr. Brewer said there would be a g= ap at the southern end. Mr. Kearney ask= ed if it would be addressed with renting other spaces. Mr. Brewer said they would be prop= osing another tower. Mr. McNamara s= aid the applicant indicated in their application a planned tower for Bush Hill Road.

Ms. Paliy informed that s= he lived in the Mammoth Road area and Verizon didn’t have coverage in the area. Mr. Brewer discussed the difference technological between AT&T and Verizon; Verizon has a license to transm= it farther than AT&T. Mr. Mo= lloy asked if it were possible for all of the Mammoth Road corridor to be covered= by another carrier. Mr. Brewer s= aid it was possible for it to be covered by Verizon through existing sites. Ms. Paliy asked if AT&T would = be locking T-Mobil out of the area. Mr. Brewer said essentially they wo= uld be.

Mr. McNamara asked if the= tower would interfere with the airport flight patterns at = Manchester. Mr. Brewer said they would have to= study the air space. Mr. McNamara t= hen asked if the tower would have any interference with Raytheon’s radar facility. Mr. Brewer said the= y were currently working with Raytheon. He said it was possible for some interference, but not from different frequency bands located on the same structure. Mr. McNamara reviewed the comments submitted under the ‘AT&= ;T limiting factors’ and questioned what the difference was between tower locations at Mill Street, Shooting Star and the planned Bush Hill Road not being able to cover AT&T’s ‘targeted’ coverage area, ‘primary target coverage objective’, ‘complete targeted coverage area’, respectively. Mr. Brewer showed the sites and explained the different types of coverage.=

Mr. O’Sullivan aske= d if co-location on the tower (being constructed) at Route 111 and Route 128 pro= vide the same effect as what was being presented. Attorney Anderson stated AT&T was currently = on the top of that tower. Mr. O’Sullivan questioned why AT&T didn’t have coverage on the northern half of Mammoth R= oad if they were on the tower at Route 111.&nb= sp; Mr. Jonathan McNeal of SAI Communications (sitting with Attorney Anderson) informed that the power came on last week and the site should be on-line within the next couple weeks. He said the Route 111 site was being taken into consideration (and should work in concert) with the proposed site. Mr. Molloy questioned if the Route= 111 tower coverage was reflected in the maps provided to the Board. Mr. Brewer said the coverage infor= mation was contained in the information provided.= The signal from Route 111 would cover up to approximately one mile.<= span style=3D'mso-spacerun:yes'>

Mr. McNamara asked if the applicant had reviewed the industrial park in the northwest corner of Town. Mr. Brewer said they re= viewed the site, but the coverage fell off around the site that they were proposing the tower.

Attorney Anderson said they would have additional information to gather and present, but at this time would like to hear from= the public.

PUBLIC INPUT

Mr. John Cares, acting as= agent for his Mother JoAnn Cares (JoAnn G. Hilbert Revocable Trust) Lot 543 who resided in Florida, requested that AT&T have a tethered balloon on the property for a few d= ays so the residents could view the height and location of the proposed tower.<= span style=3D'mso-spacerun:yes'> He said his mother was concerned f= or the affects on property value with the tower.&= nbsp; Attorney Anderson said they ran balloon tests and noted the difficulties of doing them in hea= vily wooded areas. He said they had taken a number of photographs in the area which would show the visibility study. He would be happy to s= hare the information.   He the= n said they would check with AT&T to see if a second balloon test could be done. Mr. Cares said communic= ation and notification with the abutters would go a long way. Mr. McNeal said letters were maile= d to the abutters Wed= nesday, November 5, 2008 and placed notices in the newspaper, Town Hall= and the Library.

Mr. Molloy said he would = be requesting a site walk and would like the crane to be up at that time.

Mr. Russell Hamel, 7 Rocky Hill Road, told the Board the actual elevation distance from where the crane was locat= ed versus where the tower would be erected is ten feet. He said he owned a business and had tried the numerous phone carriers and informed that he had coverage through Verizon, but it was not consistent coverage. He said there was a need for cover= age in the area and commended the applicant. He discussed the importance of having cell phone service for family, business and emergencies.

Ms. Deb DiRusso, 8 Rocky Hill Road said she and her husband Jeff attended the meeting to see what the tower would l= ook like from their home. They we= re not home earlier in the day when the crane was in place. They had concerns about property v= alue. Ms. DiRusso said she would like to review the photographs taken at the site.&= nbsp; Mr. McNamara provided a copy of the photographs submitted to the Boa= rd to Ms. DiRusso to review.

Mr. Gowan provided the Bo= ard members with information about cell towers and the problems with coverage within the Town. He pointed o= ut that the holes in coverage didn’t only affect citizens, but it also affected Fire and Police. He confirmed with Attorney Anderson that there would space available on the to= wer for a total of five carriers. He said if he was a Board member, he would want to know if there was a list of carriers that would be prohibited from the co-location. Attorney Anderson said no carrier was prohibited= from co-location; all were invited. He stated there were master co-location agreements with the carriers. He said Mr. Brewer had addressed r= oaming and whether or not someone could roam onto someone else’s signal. Mr. Gowan believed it would take t= he proposed tower and approximately two more to get the major carriers holes t= aken care of.

Mr. O’Sullivan sugg= ested that the Board walk the site. The Board was interested in having a balloon test at the same time as the site walk. There was further discu= ssion regarding when a balloon test/site walk could be done.

A site walk was scheduled= for December 6, 2008 at 10am on site. The applicant was requested to hav= e a crane/balloon test on site at the same time. It was also suggested to have the crane/balloon remain in place for a period of time (three/four hours) that = day to give residents the opportunity to view the balloon if they weren’t able to attend the site walk.

Attorney Anderson informed the Board that they w= ould submit the application for the Bush Hill Road site as soon as they had it all together. He said they may be= able to have the crane moved from one site to the other. Mr. Gowan suggested that the ballo= on tests should be done separately. He said the Planning Board would probably also want a crane test so he would provide them with an invitation to the site walk; the Planning Board would = have limited input.

Mr. O’Sullivan aske= d what the typical time frame was for construction once the ground was broken. Mr. McNeal said it construction wo= uld take approximately six to eight weeks.&nbs= p;

Mr. Ouellette suggested t= hat the applicant bring photographs of the actual tower (with the antennas) with th= em to the site walk for people to review.&nbs= p; Attorney Anderson said they would.

Mr. McNamara proposed tha= t the Board have an independent analysis done of the radio frequency test at the applicant’s expense. He= said in the event the plan went to the Planning Board, they would probably reque= st an analysis anyway. He believ= ed because the analysis was central to the applicant’s claim to meet the variance criteria, it was necessary information. Mr. Hennessey believed the applica= tion was taken care of under the Telecommunications Act. Mr. McNamara said that was not tru= e. He explained that the Telecommunic= ations Act was a balancing test between two conflicting aims: 1) the federal aim to allow the proliferation of telecommunications equipment and expand the service and, 2) desire to retain substantial local control over the placement of those facilities. He said the appli= cant had the burden to meet all the variance criteria. He clarified that his request was = to verify the extent of coverage.

Attorney Anderson said at the same time they req= uest the crane, they will ask for funding for a reasonable consultant technically qualified to validate the information.&nbs= p; There was further discussion regarding the requested study.

MOTION:

(O’Sullivan/Mollo= y) To continue the case to the next meeting, pending the site walk on December 6, 2008.

VOTE:

(5-0-= 0) The motion carried.

The case was date specifi= ed to the December 8, = 2008 meeting.

Mr. Gowan confirmed that = the balloon would be in place for a four hour period which included the time of= the site walk. Attorney Anderson said they= would have to rent the crane for a block of time. Ms. Paliy then confirmed that the Planning Board would be notified of the site walk. Mr. Gowan said he would contact th= em.

MINUTES

November= 10, 2008

MOTION:

(McNamara/O’Sulli= van) To approve the N= ovember 10, 2008 minutes as amended.

VOTE:

(5-0-= 0) The motion carried.

ADJOURNMENT

MOTION:

(Molloy/O’Sulliva= n) To adjourn the meeting.

VOTE:

(5-0-= 0) The motion carried.

The meeting was adjourned= at approximately 9:27 pm.

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Respectfully submitted,

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Charity A.L. Willis     &n= bsp;

           &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;            = ;            &n= bsp;         Recording Secretary