Notice Of Decision
Board of Adjustment
Greenfield, NH 03047
Case 09-1
In response to an application for a Tower, Telecommunications Facility and Personal Wireless Service Facility, submitted by New Cingular Wireless PCS, LLC (AT&T), for property located at 515 Sawmill Road, lot R1-009 the board find the following:
The Board of Adjustment has approved an appeal for a Special Exception as allowed under Section V.1.c; Permitted Areas.
Request for a variance from Section V2f9: Performance And Design Standards for the design of the antenna. The Board finds the applicant meets the requirement and that the variance is not required.
Request for a variance from SectionV.2.E.1.d: Dimensional Requirements:
Height, Ground-Mounted Facilities: Ground mounted personal wireless service facilities shall not project higher than twenty (20) feet above the average tree canopy height within a fifty (50) foot radius of the mount, security barrier, or designated clear area for access to equipment, whichever is greater, for a 100 foot Monopole.
In response to the criteria required for granting a variance, the Board finds the following:
I. The Value of surrounding properties will not be diminished.
Although the Board was not unanimous concerning this issue in its earlier decision regarding a special exception allowing the erection of this cell tower in a residential district; the Board does find that the additional height of this tower extending above the 20 feet “Average Tree Canopy Height” allowed within the ordinance could have an adverse effect on surrounding property values.
II. The variance will not be contrary to public interest.
While the Board consented that a potential exists for individual interest(s) to be served as a result of the approval of this variance pubic interest in general in the form of protection of visual features of Greenfield is well recorded and noted within the ordinance and must be considered in any decision. Since the ordinance allows for an intrusion or visual impact resulting from a structure extending above the canopy height not to exceed 20’ is acceptable, the Board finds that any additional intrusion of the visual impact would be contrary to public interest
III. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.
Bi. An area variance is needed to enable the applicants proposed use of the property given the special conditions of the property.
The Board finds that the applicant can utilize the property as proposed by erecting a tower in accordance with and staying within the allowable height restriction and not exceeding the 20’ limit above the average tree canopy height as defined in the ordinance.
Bii. The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.
The Board finds that the applicant can achieve the results sought utilizing methods in accordance specified within the ordinance. These methods would include but not be limited to additional and/or alternate sites proposed within the limits and confines of the Greenfield Zoning Ordinance.
IV. Substantial justice is done.
The Board finds that substantial justice would not be done by granting this variance. The loss to the applicant in this case does not outweigh the loss to the general public. The applicant in this case is allowed to erect a tower to a height not greater than 20’ above the average canopy height. The loss resulted by this height restriction to the applicant does not outweigh the gain to the general public by protecting the visual features as defined within the ordinance.
V. The variance is consistent with the spirit of the ordinance.
The Board finds that the spirit of the ordinance is well defined within its “purpose” Section V.1 “The purpose of this section is to establish regulations for telecommunications facilities so as to protect residential areas and lands minimizing adverse impacts of towers”. Although the ordinance allows for an impact of sorts by allowing for ground mounted personal wireless facilities to project not higher than 20’ above the average canopy height in this case the additional height goes beyond being compatible with visual features. In that light the Board finds any additional height would not be
within the spirit of the ordinance and would not meet the goals set out in the Town’s Master Plan.
Since the request for variance cannot be granted unless all criteria is met, the Board denies the request
Further, the Zoning Board of Adjustment sends this case back to the Planning Board with a denial of the relief sought by the applicant regarding dimensional requirement under V.2E.1.d. The Board finds that the applicant MUST if they choose to continue with the proposed project, construct a facility that does not project higher than 20’ above the average tree canopy height.
Additionally the Board finds that it would be remiss in its responsibilities if the subject of “camouflage” were not addressed in this decision as concerns were raised in the initial hearing. The Board recognizes that the Planning Board did at a hearing dated July 13th discuss the issue of camouflage. This Board would like to reiterate that camouflage is not an option or suggestion but a requirement; and that any approval of this project without due consideration to camouflage would be a direct violation of Greenfield’s Zoning Ordinance.
.John Gryval
Chairman
Board of Adjustment
Date: September 9, 2009
Note: Any person affected has a right to appeal this decision. If you wish to appeal, you MUST ACT WITHIN THIRTY DAYS (30) of the date of this notice. The necessary first step, before any appeal may be taken to the courts, is to apply to the Board of Adjustment for a rehearing. The MOTION FOR REHEARING must set forth all the grounds on which you will base your appeal.
See New Hampshire Statutes, RSA Chapter 677, for details.
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