Present: Frank Polito, Chairman; Bill Friel, Vice-Chairman; Sanford Carter, Kate Rochford; Hank Riehl

Alternates: Samuel Zannini; Maggie Osborn (note voting)

7. Notice of Decision re: 5/9/07 Partial approval for variance application of Saviano, 33 Boulder Cove Road, Map 20, Lot 12.

Patrick Mallon request for a Special Exception as specified in the Zoning Ordinance, Article VII, 700:1, 700:2 to allow Conversion of a Seasonal Property to Primary residence and Expansion of a Non-Conforming property. Also request for a Variance from Article IV, Section 410:8 to permit expansion of the dwelling 50’ from wetlands (50’ variance) as opposed to the required 100’ on property located at 8 Valcat Lane, Map 22, Lot 47, RR3 Zone.

Mrs. Osborn and Ms. Rochford recused themselves.

Abutters list was read with the following present: Elaine Vaillancourt, Patrick Mallon/Malborn RT

Mr. Mallon explained that he had hired Meisner Brem and presented the Board with a new set of drawings depicting a 2,587 square foot dwelling, not including the garage. Mr. Polito asked if this floor plan included a walk out basement. Mr. Mallon said part of it might be a walk out, but it would be to the rear of the property toward the lake and was not calculated in the square footage because it was not going to be finished. Mr. Mallon did not have a basement floor plan. Mr. Polito said that the size of the house impacts his main concern of non-permeable surfaces and lot coverage.

Robert Baldwin explained there is currently 1500 square feet of non-natural impermeable surfaces on the property now and after construction of the proposed dwelling this will increase to 3000 square feet. The lot is approximately 22,000 square feet or ½ acre. Mr. Polito asked if the assumption is that the sheds and boathouse will be removed. Mr. Mallon said he was proposing to remove the deck with roof on the boathouse and the three other sheds. Mr. Friel asked what the size of the boathouse was and questioned what it was being called. At the last hearing it was referred to a bunkhouse and he wanted to know what it was. Mr. Mallon said it was about 11’ x 25’ structure and that he had a letter from the previous owner who stated it was boathouse and in 1940 it was turned into a bunkhouse, but it had been there as long as he could remember. Mr. Polito asked if the driveway was gravel? Mr. Baldwin said it was currently now, but will be paved and that is part of the calculation of the non-permeable surface.

They have proposed underground infiltrator chambers for the runoff from the roof. With the use of these four infiltrator chambers or rechargers, as they are also called, there will be no additional runoff from pre to post development. These are shown on the proposed plan. Mr. Friel asked if the runoff from the boathouse is addressed. Mr. Baldwin said only the runoff from the main house is addressed. The driveway runoff is natural sheet flow that would go to a grassy area, which is away from the lake. Mr. Baldwin explained the chambers would be on each corner of the. Mr. Polito asked if there would be a gutter system leading to them. Mr. Baldwin said there would be.

Mr. Polito had a problem with the Boathouse/Bunkhouse and thought as a concession for this proposal, that trade offs had to be met. The goal of the plan should be to make the property more conforming. Mr. Friel agreed. Mr. Mallon stated they are removing three other sheds, replacing the septic system over 100’ from the lake, and removing junk on the property.

Mr. Mallon did not want to lose the boathouse and would like to restore it to a true boathouse from its current status as a bunk house. He believed it was a historical type of building and that it added character to the property. Mr. Polito asked how that conversion would be accomplished. If it is a bunkhouse now, is the floor over the water? Would you have to dredge up the shore to make room for a boat slip? Mr. Mallon said they could remove the floor and a wall to make it three sided. Mr. Polito was concerned that removing the floor would mean digging into the lake and disturbing it. Mr. Mallon was not sure if any type of heavy equipment would be needed or what else this might entail. Mr. Mallon said he would need an engineer to look at it to see if it were possible and asked if the approval could be subject to this. The Board did not agree and offered that Mr. Mallon could continue this and come back next month with an engineering plan for what he wanted to accomplish with the boathouse and that would be added. Mrs. Mallon said there was no way she wanted to come back again as this had been going on for months. They had spent much more money than they anticipated having to get this far. Mr. Mallon asked if he agreed to take the boathouse down and this was approved, then he was able to get an engineer to look at the property and it was feasible to restore, could he come back to the Board and ask that it remain. Mr. Polito said he did that at his own risk and thought the buildings needed to come down before construction was started. Mr. Jones said they could start construction, but the CO would not be issued until all of the conditions of the approval were met. Mr. Polito reiterated that if Mr. Mallon agreed to removal of the boathouse and later came back with an engineering plan and a proposal to restore the boathouse, there is no guarantee the Board would approve it.

Mr. Dziechowski said the Conservation Commission was originally opposed to this proposal, but after they walked the site and saw the state of the property and potential damage to the lake by the current conditions, they were swayed to support the proposal. Mr. Dziechowski said he would rather the house be closer to 2000 square feet and thought 2500 square feet was still a bit large. He would like to make sure that all runoff from the dwelling is contained. The Commission also had a problem with the access to the property.

Mr. Vaillancourt was concerned with the height of the proposed structure and whether it would block views of the lake. Mr. Polito asked if there were any abutters present that were affected. There were not. Mr. Mallon said there were no abutters in back of them.

The Board determined that although there may be an issue with the Valcat Lane Access, it is not a consideration for the Board. Any discrepancy would be a civil matter. Mr. Polito said that the driveway access to the property from the nearest class V road will be addressed by the Road Agent, Fire, and Police as would any house requiring a long driveway. Since this is a conversion to a large and year-round house, the need for access is equivalent to what is required in new constriction in a development today. This will be handled as part of the building permit and inspection process.

The Board reviewed the criteria for a Variance.

The Board reviewed the criteria for a Special Exception for the conversion of seasonal to year round use.

Michael Saviano request for Variance from Article 410, Section 410:8 of the Zoning Ordinance to allow construction of a 24’x31’ garage 51’ from wetlands (49’ variance) as opposed to the required 100’ on property located at 33 Boulder Cove Road, Map 20, Lot 12, RR3 Zone.

Abutters list was read with the following present: Michael Saviano

Mr. Polito reminded the Board that this application was bifurcated last month so that Mr. Saviano could complete the breezeway. Mr. Saviano presented the Board with plans drawn by Kevin Camm showing a drywell system that will contain the runoff from the proposed garage and living space and keep it from running into the lake. This addressed the Conservation Commission’s concerns as well as the ZBA’s. The only concern of the Board was that it did not appear this drywell was contained in a unit or solid structure to prevent the walls from collapsing in. The Board agreed this could be a condition and documented in a final inspection when installed.

The Board reviewed the criteria:

Lorraine C. Mullett Family Trust request for Variance from Article V, Section 530 of the Zoning Ordinance to permit two lot frontage reductions (from 200’ required) to allow a 2 Lot Subdivision on property located at 12 Willowvale, Map 14, Lot 3, TR2 Zone.

Abutters list was read with the following present: David Murphy; Jim Tierney, representing Loraine Mullet

Mr. Tierney presented the Board with new plans showing the subdivision resulting in two lots. Lot 1 contained the existing house and requires a variance of 50’ +/- to the frontage requirements, 1.4’ +/- to the front set back requirement and 1.8’ +/- to the sideline setback. The second lot requires a variance of 36.5’ +/- on the frontage requirement, but meets all other setbacks. The Board agreed if this were approved, lot 2 could not be further subdivided as a cluster subdivision because it did not meet the acreage requirement and consideration of that fact was considered positively in meeting the spirit and intent of the ordinance and no diminution of surrounding property values.

Mr. Dziechowski was concerned about a buffer between lot 2 and the large area of conservation land that the Conservation Commission spent a lot of money acquiring. He was concerned about the visibility of the proposed house and would like to seem some sort of buffer. Mr. Polito told him that that Town only required a 100 foot buffer between different uses and the Board did not have the grounds to require any buffer in this situation. Mr. Tierney said they were willing to work with the Conservation Commission, but did not want it as a requirement of the approval.

Mrs. Murphy asked where the house would be located and how close to the sidelines the house could be built. Mr. Polito explained that the sideline setback was 30’.

The Board reviewed the criteria:

Melanie & James Scharn represented by Mr. Alan Phair request to amend a previously approved (2/21/07) Special Exception as specified in the Zoning Ordinance, Article IV, Section 460:1 to allow the accessory living unit to be increased to the newly allowed 750 square feet at property located at 57 Main Street, Map 4, Lot 10-1, TR 2 Zone.

Abutters list was read with the following present: Alan Phair, representing the Scharns.

Mr. Phair explained that this was approved as an accessory living unit, but that based on the new zoning that was approved in March, they wanted to increase the square footage of the living space, from 408 square feet to 664 square feet, per the amended drawings. They will remove a wall to the proposed shed and replace doors with windows.

Rehearing: Mariner Tower, LLP (Mariner) for Special Exception to Modify Existing Telecommunications Facility on Hog Hill, Map 18, Lot 4 based on new case law contained in Malachy v. Chichester but limited to reconsideration of substantial justice and public interest only.

Mr. Carter recused himself. Mrs. Osborn voted. Abutters list was read with the following present: Sanford Cater; Brian and Karen Donnelly; Fuer Realty Trust; Mr. Ciolfi, representing Mariner Tower

Mr. Polito explained that the Board approved a limited rehearing on the issues of substantial justice and public interest based on the clarification in Malachy v. Chichester. The Board declined the request of Mariner Tower on the issue of diminution because that was not new information that was not available to them at the time of the hearing. Mr. Ciolfi presented a letter to the Board which Mr. Polito read. Mr. Polito said the Board had already made a decision regarding diminution of value that could not be revisited at this hearing because the decision of the Board was made a the previous public hearing to not re-hear that condition and the Board could not legally reconsider that decision. Mr. Polito thought the proper venue for appealing that decision was an appeal was the Courts. No matter what the Board does this evening, the application fails on diminution of value. There was a consensus of the Board that only the two issues granted in the rehearing request could be heard.

Mr. Ciolfi said this was not addressed at the last hearing was because he was not allowed to speak. He tried to make a clarification, but was not allowed to offer a statement. Mr. Ciolfi wanted to be on the record as trying to send in clarification, but believes his input was taken by the Board as an attempt to enter new information. Mr. Ciolfi said his argument is that the Board ignored his input on diminution at the public hearings while accepting that of the abutters. Mr. Polito said Mr. Ciolfi was taking the interpretation of what happened further than he should. Nowhere does the record state the Board did not accept his testimony. Mr. Polito said that the Board had listened to the testimony of both the applicant and the abutters but in the end, the burden of proof is on the applicant to provide convincing evidence that the criteria is met. Mr. Polito said the Board’s decision on diminution was based on whether the applicant provided sufficient evidence at the time of the hearing to clear that legal hurdle. Mr. Ciolfi said his impression was that the Board believed the abutters over his testimony as a professional in this field with over 15 years of experience building these facilities. Mr. Polito said the Board could not rehear this issue tonight. He thought it was a stretch to claim the Board believed the abutters and not him. Mr. Polito said Mr. Ciolfi did not meet the burden of proof. Mr. Ciolfi quoted the minutes as stating "based on substantial input from the abutters, the Board decided". Mr. Polito said this was for a judge to decide if they chose to go that route.

Mr. Polito said that the salient points of Malachy v. Chichester regarding public interest are that (reading from ruling) the variance must unduly, and in a marked degree conflict with the ordinance such that it violates the ordinance’s basic zoning objectives. One way to ascertain whether granting the variance would violate basic zoning objectives is to examine whether it would alter the essential character of the locality. Another approach as to whether granting the variance would violate basic zoning objectives is to examine whether granting the variance would threaten the public health, safety or welfare. Mr. Polito said that the Board should evaluate the proposed changes to the tower, not the tower as it exists legally per the Stipulation, against these points. Mr. Polito then read from Malachy v. Chichester regarding substantial justice. Perhaps the only guiding rule on substantial justice is that any loss to the individual that is not outweighed by a gain to the general public is an injustice. Mr. Polito said that the applicant wishes to make changes to the tower beyond what is allowed in the Stipulation. The Board must consider whether any loss to the applicant by not being allowed to make these changes is outweighed by a gain to the general public.

Mr. Polito recognized Mr. Ciolfi. Mr. Ciolfi said that he believed it is clear that by not allowing Mariner to install new technology, and add antennas on the tower, while taking off old antennas which are no longer in service is an economic loss and a harm to Mariner. He did not see, except for an emotional point of view how the general public would gain. Mr. Ciolfi said that in speaking to public interest, as discussed last time; this service provides emergency communications, convenience to the general public and is a benefit to the public to have a wider cell phone coverage. It is the only existing tall structure in this area.

Mr. Polito opened the hearing to abutters:

Mr. Carter stated that the situation at the tower has been well documented in previous proceedings and was well known to Mr. Ciolfi when he bought the tower. There are Stipulations that are in existence and there is history on this tower. There were whips removed frorm this tower in anticipation of expansion to cellular, which was a business decision that perhaps was not a good one. Any hardship was self-created. The abutters have major concerns over the safety issues. Mr. Carter stated if the Attorney who represented Mr. Ciolfi, had represented the abutters under the exact same circumstances, he could have had a diametrically opposed point of view. Although he does not impugn the firm of Adair in doing the structural analysis of the tower, one has to be aware of the fact that the consultant is an employee of Mr. Ciolfi and Mariner Tower. Mr. Carter found it very unrealistic that if that firm was to be employed by the Town or the abutters, the analysis would have found that cellular services are appropriate on class 1 towers. He would think the analysis would take into account that we live in one of the heaviest ice regions in the nation according to TIA 222G, the standard under which this should be analyzed. The letters that have been received by the consultant represent the opinions of the consultant. The evidence the abutters have presented regarding classification of the towers is unbiased and they represent documentation that was not solicited or paid for by anybody. TIA 222G States class 2 tower is the minimum class that should be used for cellular services. Any other towers, in which there is substantial risk to life safety, should be at least a class 2 tower if not a class 3. The abutters have a lot of concern with this tower. Mr. Carter claimed that the total of the removed equipment has an equivalent of a flat panel area of 33.17 square feet. The equipment to be added has the equivalent of 82.93 square feet of flat panel area, which is 250% greater than what is being removed. Nobody has to be a structural engineer to realize if you put a 2 ½ times larger sail on a ship, it just might tip over. It is indisputable that what is being proposed would decrease the safety of the tower. Mr. Carter said they have also heard that it could be classified as class 2, which may require structural reinforcement.

Mr. Fuer said there was a recent survey done by Signal Tower and he believes the boundary of the tower changed and the outer cable support is now on his boundary line. If this tower falls it will fall on his garage.

Mr. Ciolfi thanked Mr. Carter for the history and his diligence, but he stands behind Adair’s analysis of the tower. He is a very well respected structural engineer in the design and analysis of facilities. He has reviewed the structure again and again. Mr. Ciolfi said if there were a structural member that had to be repaired on the tower to conform to safety, he did not believe the Town would have a problem with it. Mr. Ciolfi said the guy anchor has not been replace for many years and if it ever needed to be, they would be happy to move it off the property line. Mr. Polito was concerned that at a previous meeting, Mr. Carter presented information that raised doubt in his mind about the classification used by Adair in their analysis. If it were classified as a class 2, it does not sound like it meets the requirements after the addition of what is proposed by the applicant. Putting these panels and cables up and calling it a cell tower seems to push it into the realm of a class 2 tower. Mr. Ciolfi said if it were to be considered a class 2 tower, there might have to be some structural upgrading to comply with the standards. Mr. Polito asked what criteria make a tower transition from one class to another. Mr. Ciolfi said the classification talks about the different uses on a tower and it can be considered a class 2 but this is subject to opinion. Adair looked at this as a class 1 and took into consideration all of documentation, including site plans for the site. Mr. Carter interjected and read the classifications from the Telecom Electro Industry News Trend Newsletter. Mr. Polito said the question and conflict for him is it sounds like this tower should have been classified as a class 2 tower, and wanted to know why the engineer classified it as class 1. The fall zone is not entirely on the property and the raises safety questions. Mr. Ciolfi knows it falls beyond the property but does not believe it falls on any structures. Being in the industry, he also knows that towers do not fall like a tree and therefore that is not typically a concern. Mr. Polito said by the definitions, it is clear that cellular and pcs service is a class 2. Mr. Ciolfi said the definitions state they "may" be classified as a class 2. Mr. Polito asked about ice loading which is analyzed on class 2 towers, but not a class 1. Mr. Ciolfi said if the application were approved, which he already has been told will be denied, they could make the structure comply. Mr. Polito said the whole purpose of the Special Exception was to look at what impact the change of use has. Mr. Polito claimed Mr. Ciolfi has been contending that nobody should notice a difference. Mr. Polito also pointed out that the existing tower does not even meet the current requirements of Atkinson’s zoning where a tower is allowed; the CI zone. This tower is in a residential zone where it is allowed only because of a Stipulation. He said that the changes the applicant proposes seem to further frustrate the purpose of the residential zoning and the protection it provides to the abutters. Mr. Ciolfi said that structural enhancement could be reguying and anchoring, with the same width and general characters. There may have to be a piece replaced, and it would not visually change the appearance. It is done all the time. Mr. Ciolfi believed it is on the recorded that they have talked about the guy wires, and rather than going through that expense now, they would wait for the approval and do whatever was necessary to comply with TIA 222G. They are in the business of having safe and compliant structures. Mr. Carter stated that the Tower that is on that site per the Stipulation is not supposed to be expanded. When Mr. Ciolfi bought it, he bought the baggage. Mr. Ciolfi believed the Stipulation also provided for changes.

Mr. Polito said there is evidence that this expansion may shift this tower from class 1 to class 2. If it went from class 1 to class 2, another set of structural requirements are brought to bear against the tower. Ice load had not been considered in class 1 and this could be a safety hazard. It could also mean that in order to meet class 2, it would have to be shored up. Shoring up the tower may or may not have a visual impact. Going from the current use as specified in the Stipulation to putting panels up, the addition of coaxial cable, cell phone service and pcs service could shift you into a different class. Mr. Polito said it was the responsibility of the applicant to reach the threshold and convince the Board that there will be no issues. Mr. Polito did not believe the applicant met the burden of proof. This is a finding of fact based on what is before the Board. Mr. Polito said the applicant had multiple opportunities to deal with this issue multiple times.

Minutes transcribed from tape. Respectfully submitted

Rebecca Russo

Approved______________________