Greenfield Zoning Board of Adjustment
Meeting Minutes
September 9, 2009
The Board meets at 8:00 pm with Kevin, John, Dan, Roger, Craig, and Loren present. John tells all present that this is the continuation of the deliberative portion of Case 09-1 from last Wednesday, and proceeds to explain the case up to this point.
John asks Dan Dineen if he also went to look at the views from the Mitchell’s Sawmill Estates and what he saw. Dan replies he walked the future road’s location, and that you could see Mount Monadnock, North Pack Monadnock, and the proposed tower site. John asks Kevin if he agrees with Dan’s summation, Kevin states he does. John asks the board for any comment, Roger states that since the purpose of the tower is to improve communications in general, if someone needed to use the tower in case of an emergency, it would be a negative if it wasn’t there.
Dan states he doesn’t disagree with Roger, but that we still have an ordinance to follow, and he still feels we should get someone to determine if it would be diminutive to the abutters.
John asks the board about the applicant request to allow new evidence.
Dan relies that we usually don’t, we didn’t in the Cooper case.
John asks the board if they think we should consider it.
The board replies that since they denied other evidence from an abutter after the meeting, if they allowed it they’d have to allow more than just the applicant’s evidence. The board decides by agreement not to allow it.
Craig states we already approved the special exception, but asks what the average tree height is, has the height has been established?
John explains the Planning board never established tree height, but that they are looking for a variance from it. If the Board denies the variance the plan will go back to the Planning board and they’ll have to determine tree height.
Craig states we’ve been using 60-65’ for an estimate. Craig also states that he agrees with Dan in that the board can’t establish diminished value.
Kevin talks of last week’s discussion of tree heights in the area, and the boards lack of knowledge as to the heights.
John discusses the issue of public interest, and what the public’s interest is.
The board reads and discusses the future land use plan section of the Master plan, how it specifically discusses the objective of least possible visual impact and camouflage, and how the zoning ordinance reflects that.
Loren asks if denying the variance would deny coverage, because he’d hate to see a situation where someone was hurt by that denial.
The board replies that the RF report the PB obtained states they (AT&T) would still have coverage, but it could compromise one or more co-locations.
Dan talks of establishing diminution of value and reads from page 12 of the ZBA handbook.
“Whether the project made possible by the grant of a variance will decrease the value of surrounding properties is one of those issues that will depend on the facts of each application. While objections to the variance by abutters may be taken as some indication that property values might be decreased, such objections do not require the zoning board of adjustment to find that values would decrease. Very often, their will be conflicting evidence and dueling experts on this point, and on many others in a controversial application. It is the job of the ZBA to sift through the conflicting testimony and other evidence and to make a finding as to whether a decrease in property value will occur. The ZBA members may also draw upon their
own knowledge of the area involved in reaching a decision on this and other issues. Because of this, the ZBA does not have to accept the conclusions of experts on the question of value, or on any other point, since one of the functions of the board is to decide how much weight, or credibility, to give testimony or opinions of witnesses, including expert witnesses. Keep in mind that the burden is on the applicant to convince the ZBA that it is more likely than not that the project will not decrease values."
John asks the board if they’re ready to go through the variance questions, and the board states they are.
John goes to page 21 of the ZBA handbook and reads the questions.
I. The value of surrounding properties will not be diminished. The board discusses diminished value, and the previous discussions on establishing diminished diminution of value, and votes unanimously that the additional height as proposed would diminish property values.
II. The variance will not be contrary to the public interest. The board discusses the Master plan and it’s goal to protect the towns character and view sheds, and allow telecommunications accessibility, and how that goal was implemented through the zoning ordinance by allowing but limiting cell towers. The board unanimously votes that a variance from the ordinance would be contrary to the public interest.
III. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.
John states that since they’re looking for a variance from the height restriction of the ordinance, it’s a (dimensional) variance, and the board will use the Boccia analysis for hardship.
- An area variance is needed to enable the applicant's proposed use of the property given the special conditions of the property. The board discusses the special exception granted that allows a smaller tower that the record shows will provide the coverage and unanimously feels the variance is not needed.
- 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 discusses the RF report the Planning board obtained, and the reports conclusion that AT&T could get coverage through this tower, but that co-location at this location would be partially compromised. The board is also aware the applicant is currently planning an additional site, and feels that site, or another additional site, may be able to provide the coverage desired. The board unanimously finds that goal desired by the applicant can be achieved while staying within restrictions of the zoning ordinance.
IV. Substantial justice is done. The board discusses and unanimously finds that the harm of granting a variance not needed to pursue the goals of the applicant would harm the town’s ability to protect its character and values.
V. The variance is consistent with the spirit of the ordinance. The board discusses and unanimously concludes that granting a variance would not be constant with the spirit of the ordinance as the Master plan’s stated intent is, while allowing telecommunications towers, to minimize their visual impact.
John states that the applicant has failed to meet the criteria required, and asks if anyone would like to make a motion.
Motion made by Dan to deny the variance, seconded by Craig.
John asks for further discussion on the motion. Hearing none calls the vote.
The board votes to deny the variance 5-0.
John informs the applicant of the decision, and states that they’ll be receiving a written copy.
The applicant thanks the board and departs.
The board then discusses the wording of the written decision.
John makes the following motion for notice of decision:
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 our Ordinance.
The board changes “our Ordinance” to “Greenfield’s Zoning Ordinance”
Motion made to accept Johns’ motion for notice of decision, motion seconded and passed.
Motion by Loren to accept minutes June 3rd and 17th as presented, seconded by Dan, motion carries.
Roger motion to close meeting at 10:30, motion seconded and motion carries.
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