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

Alternates: Samuel Zannini; Maggie Osborn

Page 4, last paragraph, third sentence, change "ant" to "additional"

Incoming

Outgoing

PUBLIC HEARING: Continued from January 13, 2007 – 8:22 P.M.

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 recused himself as an abutter. Mrs. Osborn will vote as an alternate.

Mr. Polito explained that the Board would not be able to consider the memorandum and letter submitted by the applicant in any decision made by the Board at this hearing because Mr. Polito received it just that afternoon and the other board members had not seen it until the hearing began. Also, the abutters have not seen the memorandum and letter. Mr. Ciolfi said he was willing to read the letter and submit it along with the memorandum for the Board to read at its leisure. Mr. Polito explained that if he wanted the memorandum to be a part of the official record, and considered as input in a decision, the meeting would have to be continued to provide the board and abutters with the opportunity to read the material. Mrs. Osborn asked how this information pertains to the case. Mr. Polito said that a memorandum of law is usually stating some pretty important information that the applicant would like the Board to consider. Mr. Polito asked what the Board would like to do, the consensus of the Board was that they could not read and digest this information in enough time consider it for this hearing. Mr. Ciolfi asked that the Board go through the two page cover letter. Mr. Polito agreed to that stating that some of the contents of the letter document the site walk.

Mr. Ciolfi read the letter of February 19, 2007. Mr. Ciolfi said there was one change to the partial plot plan that was submitted. Number 2, under the Site Specific Notes was being changed from the "concrete pad" to the "equipment shelter". Mr. Polito said there was one correction in the letter and that was that the panel that was brought to the site walk was actually a 55" panel and not the 72" panel that would be used. Mr. Polito wanted to know who the existing tenants of the tower were and what type of wireless traffic they carried. Mr. Ciolfi explained that there was Metro Call, which was a paging company that used a mix of satellite and two way communications. Laidlaw Transit was a waste disposal company with private two way communications. MacLellan Concrete uses private two way communications and Centra Alarm, which does backup of home security systems, also uses private two way communications. Mr. Riehl said the letter did not contain anything pertaining to what the Board had asked about federal or state laws that would support T-Mobile and take control out of the Towns hands. Mr. Riehl said the board had asked about stipulations and federal regulations that govern cell tower sites which may conflict with or over-ride zonning. Mr. Ciolfi said that the regulations don’t necessarily pull the authority away from the municipalities. It did not take the sighting of facilities away from the municipalities and that is where the zoning laws are looked to. Mr. Ciolfi said he is not aware of any laws that would take powers away from town. Mr. Polito said that after briefly trying to read the memorandum that came in late from the applicant, it would appear that the telecommunication act does supersede the towns zoning. Mr. Cook said a town could still deny a site if there was an alternative site available. Mr. Ciolfi said this is where the law says the town has to make reasonable provisions. Mr. Polito said the Board’s decision should be blind to the Telecommunication Act, as none of the members are attorneys. The Board would be making a mistake to grant or deny the application based on their understanding of the Telecommunications Act’s position on the siting of a cell tower. That is Federal Law and has nothing to do with the Board. The Board agreed. This is distinctly different than what Mr. Riehl asked about as an expansion of a non conforming use in terms of how the TCA, or other federal or state laws may take away the town’s ability to regulate the site should an expansion to cellular service, as proposed by the applicant, be allowed. Mr. Polito said that what is out there on the site now appears to be two-way private business communications, which is not subject to federal laws outside of licensing. They are private businesses. The question becomes, once you expand to a cellular facility, carrying public traffic and essential services such as E911, does it then step things up and get you into a category where the Federal Government has regulations that would trump anything the Town would want to do to regulate the site. Mr. Polito asked if this type of business was a change in the use. The two-way communications located at the site now are ancillary to the main business, with the exception of the paging business. Attorney Robert Piece, for T-Mobile said the Telecommunications Act applies to the Zoning Board in general. You cannot effectively prohibit the provision of service by a telecommunications provider. A denial has to be substantially supported in writing. Attorney Peirce believes the requirements for the special exception have been satisfied. Mr. Polito said if there is a substantial change of use then this would be a problem on that site. Mr. Ciolfi said that in their opinion, this is not a change of use. Mr. Polito said the Board is here to do a finding of facts. Mr. Polito said the Board still does not have an answer to the question of if you allowed T-Mobile to become the fifth tenant on that site, what now could kick in, in terms of new federal, or state requirements on the site. Attorney Peirce said that the Telecommunication Acts applies to any telecommunications provider that comes before the Board, whether it was this tower or another. Mr. Polito explained that there are currently no telecommunications providers at the site now. Attorney Peirce said that he would have to look and see if any of the other tenants qualify under the Telecommunications Act. Mr. Polito wanted the record to be clear that the applicant owes the Board an understanding on what is the use out on the site today and how does it compare to what it would be if T-Mobile were allowed on the site. It is something for the Board to consider if the current tenants do not fall under the Telecommunications Act and T-Mobile would. Mr. Polito wants the applicant to tell the Board what that would mean to the site. Does it mean there are lights on the tower and generators on the site because placement of cellular service causes new regulations to kick in. Mr. Riehl asked about the tests on the guy wires. The letter indicates the tests would be done after the approval. Mr. Ciolfi said the tower structure itself will accommodate what is proposed. Mr. Ciolfi said they do not want to spend $5,000.00 - $7,000.00 on an engineering test only to be denied. They will conduct the testing before anything is put onto the tower, if they get approval. Mr. Polito agreed and said it is the Board’s job to evaluate the difference between what is currently at the site and whether the proposed use is a change in the use and to what extent.

There was a consensus of the Board that the letter of February 19, 2007, submitted by Mr. Ciolfi was an accurate documentation of the site visit conducted on January 24, 2007 with the corrections that are reflected in these minutes.

Mr. Ciolfi asked about the dish on the equipment shed, as opposed to the tower and the telephone cabinet. Mr. Polito suggested they place it where it has the least visual impact to the abutters. Mr. Ciolfi asked to which abutter? Mr. Polito said the Board could cover that at the end of the approval process. Mr. Friel asked about grey cable as opposed to black and was told that the coating breaks down in the sun and that is why they have gone back to the black. Mr. Ciolfi would look into it further. Mr. Zannini asked about generators. Mr. Cook believed that if they wanted to use generators in the future they would still have to come before the Board. Mr. Polito said the point is if this business is allowed and falls under additional state or federal laws, then there could be requirements that supersede their authority. Mr. Polito thought the Board was getting off track and wanted to get back the issue of accepting the memorandum of law for consideration. Mr. Ciolfi said the intent of the memorandum was to address the notion of Federal Law superseding the Board’s authority. They are trying to lay out their view of the special exception, whether they have met the criteria and how Federal Law would relate to the sighting of the facility. Mr. Ciolfi said they want the memorandum in the record and if it cannot be included tonight, then they would want to continue. Mr. Polito said it would be important to know what falls under the Telecommunications Act and what body of law does the existing tenants fall under.

Mr. Polito asked for abutter input. Mr. Carter stated that he had already asked twice for clarification regarding the structural analysis. There is a letter stating the facility is sound. Mr. Carter wants to know if the analysis provides a D rating factor for this less than new condition in the field analysis. If it did not, how does the applicant rate the comfort level of the abutters? The second issue was that in appendix c, calculations under the tower load, 13 entities assumed there was no ice calculation. Mr. Carter states that the Northeast is the highest ice zone in the United States. Mr. Carter wants assurance that the study took into account the ice. He knows that there is a letter provided by an engineer but would like the specific question answered definitively. Mr. Ciolfi stated that Mr. Carter is not a structural engineer that designs and analyses these types of towers. The certified engineer reassured by way of the letter that the facility meets all of the most recent standards. Mr. Carter said there are jurisdictions allowed and required, at the applicant’s expense, to have an independent evaluation and analysis. Mr. Carter believed this was a simple request and should be answered specifically. Mr. Polito’s opinion was that the Board was looking at whether adding these panels made it not structurally sound? If it is not structurally sound now, then that is an issue for the Board of Selectmen, for enforcement of the Stipulation. Mr. Ciolfi said the engineer has his official stamp on the letter and all he does is design and analysis theses structures. There was a consensus of the Board that they would not require an independent analysis done.

Robert & Delores Seaward request for Special Exception Permit as specified in the Zoning Ordinance, Article IV, Section 460 to allow an existing accessory living unit to remain at property owned by Cindy Cereno located at 12 Haverhill Road, Map11, Lot 15-1, TR2 Zone.

Abutters list was read with the following present:

Cindy Cereno; Robert and Delores Seaward; Olive Stickney

Mrs. Cereno showed the Board what was existing and what was proposed. There is a bedroom, bathroom and living room. The common area is the laundry area and the sunroom. The Board determined that the proposed unit was 490 square feet. Mrs. Cereno explained that you could not get to the accessory unit without going through her sunroom or through the bathroom downstairs into the living room. Mrs. Cereno said that she had an Occupancy Permit that was signed off as an in-law apartment, which was in error. The Board had to treat this as if it were brand new. Mr. Polito asked where the kitchen was? Mrs. Cereno stated that the applicants are not putting in a kitchen now, but of the new zoning is passed in March they may come back before the Board to increase the size. Mr. Polito stated that without a kitchen, then technically this was not an accessory unit and did not require approval. The applicant wanted it because it was being sold contingent upon this. They would then add onto part of the laundry area. If the zoning does not pass, then they might take part of the existing living space. The Board reviewed the criteria. Mr. Polito told Mrs. Cereno that she would have to have a new septic plan in case the existing one failed. She thought it was sufficient. The Board explained the calculations for the bedrooms were different with the addition of an accessory. Mr. Polito told her she could contact the Health Officer for the Town.

PUBLIC HEARING: - 10:00 P.M. KLC Land Planning & Consulting for David Brown request for Special Exception Permit as specified in the Zoning Ordinance, Article VII, Sections 700:1a (Expand Non-Conforming)to permit partial demolition, alteration and enlargement and Section 700:2 to allow conversion of a seasonal dwelling to primary residence. Property located at 11 Lippold Road, Map 23, Lot 17, RR3 Zone.

Abutters list was read with the following present: David Brown for Ed Brown 2005 Family Trust; Robert Kinzler; Kevin Camm

The Browns have owned the property since 1961. The home is an existing 3 bedroom home. Mr. Brown would like to partially remodel the cottage and make it into a newer 2 bedroom home. There is an existing septic system that services the dwelling. Mr. Camm said that a new septic design had been prepared and sent to the State for approval. Mr. Polito asked if there were any variances required for the septic system. Mr. Camm said if you replace the system with a combination tank, it would not. They are proposing a pump chamber, in which case the State would like the abutters to be notified. The septic is about 200 feet from the water. The pond is way down low and there is 20-30 feet of elevation before the home. The existing structure is capable of supporting year round use. Mr. Camm provided letters from the direct abutters to the Brown property, which was in favor of the proposal. Mr. Brown wants to take the existing cottage off of the foundation and place the new structure. Mr. Polito asked what the existing square footage was. It was determined the square footage was about 1212 square feet of finished space. Mr. Brown said the second floor will be expanded over the entire first floor, where now only a portion of the first floor footprint has a finished second floor above it. This would be approximately 1600 square feet of finished living space. Mr. Polito asked if the existing basement stays the same. Ms. Rochford asked if it were a walkout basement, because that could potentially add more space. Mr. Brown said there is a set of sliders out from the basement and he has a wood stove there. There is a normal ceiling height in the basement. Mr. Brown said the ceiling will have to be raised about 1’ – 1 ½’ to accommodate the heating ducts. There was a discrepancy on the plans because it indicated there was going to be a new foundation and did not refer to it as an existing foundation. Mr. Camm suggested the Board take a look at the property. Mr. Polito said they could mark up the plan so that the intentions are clear. The Board will also review the proposed septic plan on the site walk.

PUBLIC HEARING: - 10:34 P.M. 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 on property located at 8 Valcat Lane, Map 22, Lot 47, RR3 Zone.

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

Mrs. Osborn recused herself and asked that Ms. Rochford recuse herself based on the history between them. Ms. Rochford thought Mrs. Osborn was questioning her ethics. Mrs. Osborn explained that she was in no way questioning her ethics, but based on their past history she did

not feel Ms. Rochford could be unbiased. Mr. Polito told Ms. Rochford it was her decision and that she did not have to recuse herself unless she felt there was a reason. Ms. Rochford decided to recuse herself.

Mr. Mallon had an approved septic plan from the State. It has not yet been installed. Mr. Mallon explained that what he had there was an old camp. He has three lots of land that will be combined if the Board approves a new dwelling for year round use. He would like to demolish the existing camp because it is not in good condition and square off the foundation. The current dwelling is up on piers and there is no foundation. Mr. Mallon explained there was one area under the foundation that was closed in. Mr. Polito asked if Mr. Mallon had a set of plans for the proposed new dwelling. Mr. Mallon explained that he did not want to spend the money on the architect until he knew what the Board would be willing to let him build. He was looking for some guidance. Mr. Polito said the existing structure was only about 800 square feet. Mr. Polito asked Mr. Mallon if he had an idea of the total square footage he was looking for in the new dwelling. Mr. Mallon said he was looking to build a three bedroom, 2600 – 2700 square feet with an attached 2 car garage. The Board thought this was a large house for this area. Mr. Mallon again explained that with the combination of the three lots this would be a half acre lot and the house would be in keeping with other homes in this area. The Board determined that they would like to have a site walk on this property. Mr. Riehl questioned the septic design and one of the conditions of approval being there is no expansion of the footprint. Mr. Mallon said the State approved the 3 bedroom plan. Mr. Zannini questioned why, if the applicant met all of the criteria, would the Board care what size house he wanted to build. Mr. Polito explained that it went towards the intensity of the use. Mr. Jones asked if a variance to wetlands would be needed. The Board agreed the applicant would because they are expanding the footprint. The Board agreed they could do the site walk, and the applicant would have to reapply for a variance. This would have to be done by March 7^th. The applicant would then need drawings based on comments at the site walk.

Mr. Riehl made a motion to withdraw the application without prejudice. Mr. Friel seconded the motion and it was unanimously approved. The Board will conduct a site walk on March 5, 2007.

PUBLIC HEARING: - 11:00 P.M. Melanie & James Scharn request for a Special Exception as specified in the Zoning Ordinance, Article IV, Section 460:1  to allow an accessory living unit to be added to an existing dwelling located at 57 Main Street, owned by Scott & Darle MacFadyen, Map 4, Lot 10-1,  TR 2 Zone.

Abutters list was read with the following present: Melanie and James Scharn; Darle MacFadden; Richard Lee

Mrs. Scharn explained they were buying the house from the MacFadyens and wanted to construct a new garage and accessory unit. The contractor presented a plan to the Board of the proposal. The Board reviewed the plans and was confused because the square footage appeared to be too great. Upon further review, it was determined that the accessory unit was a studio and met the square footage requirement. Mrs. Scharn explained that her parents were actually going to sleep in one of the existing bedrooms upstairs. This bedroom was accessed directly from the main hallway of the upstairs area. There was no expansion on the second floor and everything already exists. Mrs. Scharn also said that she will be using the bedroom for her daughter’s art. The Board marked up the plan to show the accessory unit.

Minutes transcribed from tape. Respectfully submitted

Rebecca Russo