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

Alternates: Samuel Zannini; Maggie Osborn (not voting)

Page 3, first paragraph, last sentence, change "on" to "one". Add sentence "This approval is for a single family dwelling unit."

Page 5, change "48.2 +/- " to "51.8 +/-".

The Board reviewed some newer case law with respect to the public interest criteria, in considering a variance.

The Board received a letter from the State with regard to Kinney Auto Inspection being sold to new owners. The Board does not believe there are any issues.

The Albena application has not clarified her "medical business" and has not come before the Board. The Board cannot take any action on this matter without clarification.

Attorney Bernard H. Campbell for Mary Ann Casey request for Special Exception Permit as specified in Zoning Ordinance Article VII, Section 700:2 to permit a change in use from Seasonal to Primary Use dwelling located at 36 Stickney Road, Map 23, Lot 32, RR3 Zone.

Abutters List was read with the following present: Mary Ann Casey; Attorney Bernard Campbell

(Maggie Osborn and Samuel Zannini stepped down)

Attorney Bernard Campbell stated that at the last hearing, the Board requested the applicant to try and establish how this dwelling got to five bedrooms. The applicant presented a package of tax cards to the Board, which showed that in 1972, the dwelling was classified as having 5 rooms and being approximately 988 square feet in size. Mrs. Casey said there were four bedrooms and another large open room that consisted of the kitchen/dining/living area. Another tax card in 1982 describes 6 rooms with a square footage of about 1152 and a tax card from 1989 describes 5 bedrooms with approximately 1700 square feet. Attorney Bernard Campbell explained that these were the only tax cards that gave an indication of the room count for this dwelling. Attorney Bernard Campbell explained that this was the only information that they could discover other than the testimony of Mrs. Casey, regarding the number of bedrooms and the time period in which they existed. The Board wanted to know how the square footage enlarged over the years. Mr. Casey said there was a porch that they enclosed and finished and that this was used as the fifth bedroom. It has since been removed so that this would be a four bedroom dwelling. Mr. Polito reviewed the file and there were building permits on file for that expansion. Mr. Polito explained that the reason the Board had questioned the number of bedrooms was because there was an approval by the State for a four bedroom septic system. Mr. Polito believed the ZBA has jurisdiction over how many bedrooms that could be allowed. Attorney Bernard Campbell contended they have submitted evidence on all of the criteria in the ordinance and that the Town’s health officer and the State all signed off on the plan. Attorney Bernard Campbell read the language for the Special exception and said the applicant did what the Board wanted them to do in trying to establish historically, the number of bedrooms in the structure. Mr. Polito said he did not believe the Board had conclusive evidence of that. Attorney Bernard Campbell asked that Mrs. Casey be allowed to provide verbal testimony. Mrs. Casey told the Board she has been at this house for approximately 46 years. The property has been used by her parents, herself, her children, grandchildren and now her great grandchildren. Mrs. Casey said she would open the house April 1^st and be there until Thanksgiving. She has been using it for 9 to 10 months per year. The house had four bedrooms and then she took part of the porch and made that into the fifth bedroom. (This has since been removed after a request by this Board in going forward with the application). The Casey’s said there were never any other changes to the house except for the completion of the porch. Mr. Casey said they were under the impression that this was used for a year round residence and never responded to the request by the Town back in 1996 for year round conversion.

Ms. Rochford had a concern with this being classified as a year-round four bedroom home, regardless of whether the State approved a four bedroom septic for this property. She believed this was too many bedrooms for such a small piece of property so close to the lake. She also said she spoke with DES and was told there could be no further expansion of this property. Attorney Bernard Campbell agreed that there were restrictions regarding any renovations going forward.

A representative from Big Island Pond Association read a letter addressing concerns that the Association had with the deterioration of the lake, caused by enlargement of existing homes and the conversion of seasonal to year round homes. He hoped the Board would take steps to make sure some preventative steps were taken to protect the water, such as a vegetative buffer. The Casey’s said there is a wall already there and lawn goes up to the wall. Mr. Riehl believed this should be a request for a four bedroom because that is what it is and the State has approved the four-bedroom plan. Mr. Carter agreed.

The Board reviewed the criterion:

Robert Gibbs, III request for Variance from Article IV, Section 410:8 to permit construction of a 24’x37’ addition 39’ from wetlands (61’ variance) as opposed to the required 100’ on property located at 3 Brookside Terrace, Map 17, Lot 34, RR3 Zone.

The Board agreed that based on the site walk, the information submitted by the Applicant is sufficient. The Board also agreed that based on the site walk, the pond appears to be man-made with closed edges. There is no other reasonable place to construct the addition because of the current floor plan of the existing home and the placement of the existing well and septic system.

The Board reviewed the criterion:

Mariner Tower, LP request for Special Exception as specified in the Zoning Ordinance, Article VII & VIII, Section 700:1e and 800:3a,d&e to collocate Omnipoint Communications, Inc (T-Mobile) onto existing Wireless Communications Facility on Hog Hill, Map 18, Lot 4, RR2 Zone.

Mr. Carter stepped down from the Board as an abutter. Ms. Osborn was voting.

Abutters List was read with the following present:

Brian and Karen Donnelly; Patricia Cogswell; Feuer Realty Trust; Sanford Carter; Chris Ciolfi, representing Mariner Tower; Peter Cook for T-Mobile

Mr. Polito gave a history of the property, which operated in the 50’s as some sort of radio tower. In the early 80’s the owner constructed what was referred to as the "Eiffel Tower", without permits. This resulted in an action by the Town, which resulted in a "Stipulation" between the then current owners, the Hoyts and the Town, which laid out specific requirements to be followed. They were allowed to replace the antenna with a needle tower, not exceeding 175’, which had a concrete base. There were other requirements to be satisfied per the original stipulation. There was an addendum to the Stipulation in 2005, which was the result of an action taken by the Town against Signal Tower, which expanded on the tower without permission and not fulfilling the requirements of the original stipulation. It was Mr. Polito’s understanding that the tower has been used exclusively for private two-way communications that were ancillary to a commercial business like the trucking company dispatch, and not for essential telecommunication services such as cellular.

Having given a brief history of the property, Mr. Polito said he would like to begin the public hearing with a discussion of whether a special exception under 700:1 is the proper venue for this application. He also invited the applicant and the public to make any comments or corrections to the brief review of the property’s history regarding this use. He began by saying that the record did not appear to indicate that use has ever been established as a pre-existing non conforming use. He believes this is why there was a settlement documented in a Stipulation sometime in the early 80’s. Mr. Polito believes the Stipulation makes this a non-conforming use but it does not grant it pre-existing status, rather, it simply states that all parties believe this is a non-conforming use. As such, for the use to be expanded, it has to come before the ZBA and meet the criteria of a Special Exception; under section 700:1. Mr. Polito opened the topic up for discussion.

Mr. Ciolfi explained that they believe the Stipulation, under section 7 required that any changes or alteration needed to be approved by the Selectmen and they were not sure if they had to come before the ZBA. Mr. Polito said it was his understanding that the Stipulation and Addendum, give this facility status as a non-conforming use. As such, like any non conforming use, the zoning ordinance does provide a venue for consideration of alterations/expansion to the use. In addition, because this was a settlement that resulted in a Stipulation, it also needs to go back to the Selectmen for approval. It is a two-step process. Mr. Polito said that there may be Federal and State requirements that the applicant must meet, but the Board does not know what they might be and that determination is the responsibility of the applicant.

Mr. Carter believed the Stipulation was between the property owners & the Town and stands alone. It does not infer any additional rights that would not be granted to any other citizen. It is very clear to him that all of the laws that pertain to zoning and the State & Federal laws still apply in this case. The Stipulation stands alone and must be enforced and can only be modified by the approval of the Court. Paragraph 9 of the stipulation addresses the issue of zoning jurisdiction. He asserts that nowhere in either of the Stipulations is the word "non-conforming" use. He does not believe it gives any further standing to this issue than the previous owner who was before the ZBA and that the relief would be the variance process. Mr. Polito believed that at a previous hearing on this property, the Attorney who represented that applicant did not want to use the Stipulation, thereby forcing the Board into requiring the applicant to show that they were a pre-existing non conforming use. Mr. Carter’s position is that the action before the Board for a Special Exception, without proof that the use was legally established, prior to the change in zoning, would be in error. Mr. Carter believed this should be heard as a Variance. Mrs. Donnelly said they all stood behind what Mr. Carter said. They believe the Stipulation was put in place to control the growth of the Tower. Mr. Ciolfi was concerned that Mr. Carter is a member of the Board and has a history of the property that Omnipoint does not, therefore he is uncomfortable with his testimony. Mr. Polito responded that Mr. Carter has stepped off the Board and everything he is bringing up is a matter of public record or is his opinion on the interpretation of that record.

With no further input, Mr. Polito asked for a consensus vote of the Board that a hearing under 700:1 was the proper venue for the applicant’s request. Mr. Polito said that Mr. Carter had some good points, but wanted the record to be clear that the Board gave this issue careful consideration. Mr. Polito read a letter from Attorney Kalman, which stated that his opinion was that a special exception was needed by the ZBA as a precondition before the applicant went back the Selectmen. The Selectmen had looked at the application a few months ago and determined it needed to go before the ZBA before they acted on it.

Mr. Polito said the applicant is asking for something other than what is allowed in the Stipulation, and it is the consensus of the Board that the implied intention of the Selectmen was to send this request to the ZBA for a special exception. Having done that it would then have to go before the Selectmen for further approval and would have to meet all of the Federal and State requirements. The Board has given this proper consideration and there was a consensus vote among the members to affirm that the proper venue for this application is a Special Exception.

Before formal consideration of the criteria for a special exception under 700:1, Mr. Polito asked the applicant to present an overview of what they are proposing. Mr. Ciolfi explained that they wanted to install 3 panel antennas for T-Mobile’s use on the needle tower. They had originally asked to put T-Mobiles equipment in a new shelter on a concrete slab, adjacent to the tower. They have reconfigured the existing shelter and are now requesting to put the equipment inside of it. The only net change will be the 3 antennas. Three old antennas and the dish were removed in May-June of 2006 as described under Tab 3, in a letter to the BOS. The dish now sits on the equipment shelter. This was done without permission and the applicant would like to make this legal.

Mr. Ciolfi presented the Board with a package of photographs depicting what previously existed, what was already removed, and what is proposed. Mr. Polito asked what the panels looked like and if the applicant had one to show the Board. The applicant said they are depicted on the photograph. The panels would be flush mounted to three sides of the tower, roughly 120 degrees apart, and they would protrude approximately 1 foot from the tower structure. Mr. Polito noted that in addition to the panels, they are adding nine 7/8’ coaxial cables that run up the length of the tower and would likely be a visible addition to the tower. Mr. Ciolfi said that impact could be minimized by running the cables up through the middle of the tower or on the supporting legs of the tower. Mr. Polito reminded the applicant that one key aspect of the stipulation was to control and minimize visual impact and the proposed changes need to be considered in light of that.

Mr. Carter raised concerns about the structural analysis done on the tower and listed many of his concerns regarding, guy wires, ice loads, cable clamps, limitations, stress levels, etc. He was very concerned that the tables indicate the calculations were done not taking into consideration ice loads and based on the tower, guy wires, and hardware being in "new condition", which it is not. Mr. Ciolfi read a letter from All-Point Technology, signed by a professional engineer, (under Tab 7), which addressed the concerns Mr. Carter brought up. Mr. Choulty said this letter was in response to these issues, which Mr. Carter brought up at the BOS meeting. Mrs. Osborn asked if there were things that the applicant could do for the abutters to alleviate concerns and make it more pleasing to them, based on the modern technology available. Mr. Ciolfi said these panels were state of the art in technology and as small an installation as imaginable and suggested that the impact on this tower is negligible. Mr. Riehl did not believe he needed further clarification if an engineer had already indicated the structure met TIA-222-G. Mr. Polito suggested that the applicant may want to have their engineer provide more clarity as to what their summary letter implies. Mr. Ciolfi suggested a site walk would also help clarify some of the other issues.

Mr. Polito read parts of new case law with respect to "public interest". He said that while this refers to "public interest" with respect to a variance, he believes that because 700:1 uses this exact criteria, it is reasonable to conclude that it allies there as well. Mr. Ciolfi claimed this may apply if they were building a brand new structure, but they are asking for three antennas. Mr. Polito said it was incumbent upon the applicants to prove that this proposed change in use is in the "public interest" keeping in mind the NH Supreme Court’s revised definition of public interest.

All of the butters were concerned with the fall zone and thought the tower would hit the Donnelly’s addition if it were to fall. The Board looked at the site plan and determined that while the fall zone of the tower does include the abutters property, it does not appear that it includes the houses. Mrs. Donnelly said that since the dish was removed without approval and placed on the equipment shelter that is the only thing she can see out of every window in her house. The abutters were concerned with the possibility of generators having to be used in case of power outages. The Board raised concerns about loss of local control when having to comply with existing or future FCC regulations. Mr. Polito asked "what happens if the FCC, as part of E-911 services that are carried on cellular, requires an on-site generator and as such the Town loses the ability to regulate the noise and visual impact?" Mr. Ciolfi indicated at present they were not requesting to have generators at the site, but if they were required, they would use residential mufflers on the generators and they would be inside the equipment building. The abutters had concerns about how the generators would get to the location. The Board asked Mr. Ciolfi how many site visits would have to be conducted per month to maintain the facility. Mr. Ciolfi explained that there were usually only 1 to 2 visits per month and that since the equipment was monitored remotely, there may not be a need to go to the site unless something needed to be repaired. The issue of loss of local jurisdiction was raised again. There were concerns expressed that the FCC, State of NH, or Federal government may have or may enact regulations unique to cellular communications that usurp the Town’s ability to regulate this property in keeping with the Stipulations, Amendment, and any other restrictions that may be placed on this use as a part of a special exception under 700:1.

The Board agreed that a site walk needed to be conducted. The Board agreed on a site walk for Wednesday, January 17, 2007. The Board also agreed that they want the applicant to come back before the Board with:

3. It would be helpful if the applicant brought one of the proposed antenna panels and mounting hardware so the Board and the abutters could see what it would look like. In addition, a one or two-foot section of bundled coaxial cables should be brought so the Board could determine what visual impact that my have.

Minutes transcribed from tape. Respectfully submitted

Rebecca Russo