DUNBARTON ZONING BOARD OF ADJUSTMENT

MONDAY, JULY 14, 2003

TOWN OFFICES – 7:00 PM

The regular monthly meeting of the Dunbarton Zoning Board of Adjustment was held at the above time, date and place with Chairman John Trottier presiding. The following members were present:

John Trottier, Chairman

Alison Vallieres, Secretary

David Nault

Gertrude Dulude

John Van, Alternate

Ron Slocum Alternate

The Chairman verified with the Secretary that the meeting public notice had been posted in three public places throughout the Town and published in the Concord Monitor for one day. In addition, the notice was on the Dunbarton Web Page.

Approval of Previous Month’s Minutes:

A motion was made by John Van that the previous month’s minutes of Monday, June 9, 2003 be approved as written. The motion was seconded by John Trottier and passed unanimously.

7:00 p.m. – CONTINUED PUBLIC HEARING – REQUEST FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW GARY KING (B4-3-1) TO PUT AN ADDITION ON CLOSER THAN THE REQUIRED SETBACK OF 50 FEET AT HIS PROPERTY AND A VARIANCE TO ARTICLE 5. SECTION G. 1 OF THE WETLANDS CONSERVATION DISTRICT TO ALLOW HIM TO PUT A STRUCTURE CLOSER THAN 125 FEET FROM THE WETLANDS DISTRICT ON HIS PROPERTY LOCATED ON 1175 BLACK BROOK ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Gary King and his wife appeared before the Board. They stated that Jacques Belanger was supposed to have left a new map of the property at the Town Office. The Board did not have the map.

The Chairman noted for the record that the Board had taken testimony at the last meeting from abutters. In addition, the Board conducted a site walk of the property on June 17, 2003 (G. Dulude, A. Vallieres, R. Slocum, J. Van, J. Herlihy) John Trottier and Dave Nault stated they had stopped by the property at a later time.

Abutters were read as follows and noted that all had been notified by certified mail:

Manfred/Mary Peschke – Not Present

Steven/Karen Cohen – Present. Mr. Cohen asked if the applicant was going to be making a presentation this evening. If he was, then Mr. Cohen would like to reserve his comments for after his presentation.

The Chair stated that Mr. King would not be making any further presentation, just explaining the updated plan to the Board.

Mr. Cohen stated he hoped that everyone on the site walk had the opportunity to look at the filling area, etc. He stated he owns the 42 acres surrounding the King property on three sides. He stated he doesn’t feel the applicant had come close to hardship. He should have known what the restrictions were when he bought the property. He should have realized any proposed building would violate the setback from the Town ROW and the wetlands. The entire building would be encroaching on the setback and the Conservation District. We have setback regulations for a reason. I understand he indicated the previous owner told him he could build an addition here, etc. His “beef” is with the realtor and the previous owner. I don’t see the hardship. He could build out back. He wants to encroach on two separate setbacks. I feel the Board is aware of the standard and I feel the request should be denied on both requests. Stated he was concerned because no one within the Town including the Zoning and Planning Board seems

to feel it is within their jurisdiction to prevent Mr. King from filling in wetlands. Stated he has spoken with the Town Selectmen and the Building Inspector. Stated he did not feel Mr. King should be able to fill the land around his property because of close proximity of the wetlands area. Seems like no one in Town thinks it is their business for enforcement.

Five Rivers Conservation Trust, David Howe – Stated he was responsible for the Conservation Easement on the Cohen Property which abuts the King property. Have no opposition to the request to the setback from the road but are opposed to the setback from the wetlands. Would like to see the revised plan before making final presentation.

In view of the fact that there was not a copy of the updated map, the public hearing was moved to the end of the meeting in order to give Gary King the opportunity to go back to his house and bring his copy of the updated map showing the proposed addition, etc.

Other Members of the Public:

George Holt, Dunbarton Conservation Commission, stated the Conservation Commission felt that the wetlands setback is for a purpose. By continually eroding the Wetlands Setbacks diminishes the value of the setback. We ask that you not grant the request for a Variance for the wetlands setback.

7:15 p.m. – REQUEST FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW VAAL FAMILY REALITY TRUST (ALFONS VAAL) (E3-5-6) TO REPLACE AN EXISTING FAILED SEPTIC SYSTEM WITH A LARGER STATE APPROVED SYSTEM CLOSER THAN THE REQUIRED SETBACK AT HIS PROPERTY LOCATED ON 1007 SCHOOL STREET IN THE VILLAGE DISTRICT IN DUNBARTON, NH

Al Vaal appeared before the Board with a plan showing the proposed new septic system and its location on the property. He stated it was for seven bedrooms. The Chairman questioned as to whether or not it included a restaurant facility, etc. The Secretary stated that the Vaal’s had withdrawn their request for a Special Exception to have a restaurant or function room on the property because of additional septic requirements, etc. The Vaal’s have a Special Exception to have a four unit apartment building on the property which encompasses the seven bedrooms.

John Trottier spoke with Ken Swayze regarding the proposal. Ken stated he had spoken with Jacques Belanger, Surveyor, and he was sure if there was another area the septic system could be put, he would have done it. There obviously was good reason why the system was proposed to be in the location proposed.

The Board requested that the following items be located on the final plan:

1. Need to know why the septic system cannot be located in another area on the property.

2. How close to the well is the proposed system?

3. Is the septic system in failure?

4. Include the other test pit data on the plan.

5. Setback lines should be on the drawing.

6. Any other wells in the area, etc.

7. Show all structures on the property.

At this point, Simone Robinson, stated that if they had not sold the land to the Town for the Cemetery, they would have enough land to put the system where they wanted.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for the Request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance to allow Vaal Family Trust (Alfons Vaal) (E3-5-6) to replace an existing failed septic system with a larger state approved system closer than the required setback at his property located on 1007 School Street in the Village District in Dunbarton, NH until the Surveyor provides the requested information on the plan. The motion was seconded by John Van. The motion passed unanimously.

CONTINUED PUBLIC HEARING – REQUEST FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE FROM DAVID PELLENZ (H2-2-2-) TO BUILD AN ADDITION CLOSER THAN THE REQUIRED 50 FEET FROM THE BOUNDARY AND A SECOND VARIANCE FOR AN EXISTING GARAGE CLOSER THAN THE REQUIRED 50 FEET FROM THE BOUNDARY AT HIS PROPERTY ON 54 RAY ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Dave Pellenz appeared before the Board with a updated plan showing the existing garage and the proposed addition.

The Board had done a site walk on June 17, 2003 and it was determined that the existing garage which was built two years ago was within the setback.

The Board asked Mr. Pellenz how this had happened. Mr. Pellenz stated that Bill Nichols and Les Hammond had constructed the garage and knew the setback was 50 feet. They measured 50 feet from what they thought was the ROW and then went an additional 10 feet to make it 60. Unfortunately, the ROW was not where they thought and the garage is 33 feet from the ROW instead of the required 50 feet. D. Pellenz stated that it was unfortunate the garage was put in its present location because there was plenty of room to move it back

The proposed 14’ x 24’ addition is 32 feet from the ROW.

Ralph Fellbaum – Stated he wondered if getting so much closer to the ROW with the Town road standards are 18’ of pavement with 2 foot shoulders, etc. is going to affect my property? This is what was required for Stinson Heights. What about Ray Road? Is this ever going to be addressed? Would the Town ROW be coming off my stone wall? Is the existing septic system going to handle this bedroom? What is the existing septic system?

D. Pellenz stated that the addition would be a bedroom but it would be replacing an existing bedroom. The existing septic system is a tank with a dry well and it appears to be working fine at this time. He stated the existing bedroom is very small and he will be converting it to a computer room. The house will still be a three bedroom house.

The Board indicated they would like to see the existing septic system on the updated plan.

Ron Slocum stated that about two years ago, the Town made a requirement that all building permits have a site plan attached to them showing setbacks, etc. Was this garage constructed after that time?

D. Pellenz indicated the garage was built about two years ago, but that he might have gotten the permit prior to the Town requiring a site plan, etc. Stated he had the permit at home and would check.

At this point, the Board stated that the garage would need an Equitable Waiver because it was already existing. The notice was posted as a Variance therefore the public hearing notice was not correct.

After discussion, the Board agreed they would like to act on the entire package instead of separately. Based on this the following motion was made:

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for a request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance from David Pellenz (H2-2-2) to build an addition closer than the required 50 feet from the boundary and a second variance for an existing garage closer than the required 50 feet from the boundary at his property on 54 Ray Road in the Low Density District in Dunbarton, NH until such time as a new application is given to the Secretary for an Equitable Waiver for the existing garage. The motion was seconded by Ron Slocum. The motion passed by a majority with David Nault abstaining because he was not present at the first hearing.

At this point in the public hearing, Ron Slocum asked if it had been determined whether or not the wetlands area was considered a part of the Stark Pond Wetlands District.

George Holt – Stated that it did not appear that the wetlands were contiguous to Stark Pond and therefore the Wetlands Conservation District setback does not apply to this particular application.

PUBLIC HEARING FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE FROM U. S. CELLULAR ON BEHALF OF THE OWNERS, RICHARD AND NICOLETTE HECKER (C3-5-7) TO ALLOW THEM TO CONSTRUCT AND OPERATE A 180 FOOT FREE STANDING TOWER WITH 12 PANEL ANTENNA AND A 12’ X 20’ GROUND EQUIPMENT BUILDING AT THEIR PROPERTY ON 12 POWELL LANE IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Steven Grill, Devine Millimet & Branch of Manchester, NH representing U S. Cellular made a presentation to the Board regarding Cell Towers. He stated he understood that tower issues can be very controversial and wanted to talk about the law re Cell Towers. He stated that he knows in Dunbarton there is no Ordinance regulating cellular facilities. Wanted to give the Board their point of view. Points regarding cell towers he wanted to bring to the Board’s attention as follows:

1. Municipalities cannot prohibit a licensed carrier from providing service.

2. Municipalities cannot discriminate against providers of facilities. You have to let someone else in.

3. People get concerned about heath effects. Good news that the feds have determined it is a matter for the FCC. Any health regulations are done at the federal level. (attached)

4. The Board has to issue a written decision according to the record. Have to decide on our application within a reasonable length of time.

Cell Towers are a “trade off”. There are 130 million users right now within the United States. The Federal Government has licensed providers to use the air waves and charged a lot of money and in turn, they will give us some help in locating cell towers, etc. The Town of Dunbarton has no Telecom Ordinance. If the use is not specifically within the Zoning Ordinance, then without a Variance a Cell Tower cannot be put up. We are not here to tell you that you must give us this Variance. Dunbarton has to let us close the gap for cell phone communication. There are lost calls, bad calls, etc. This is just an overview. We are very aware of the historical area of Town. There are Ridge lines to the west and Ponds also. We are not going to be able to build something that everyone will like. Need you to have an understanding. I always consider this to be a mutual problem. Your job is to enforce land use regulations. Our federal license allows us to provide service. Cell phones are becoming essential for emergency services. Would allow 911 Central to locate the position of a carrier. Just by making the call, Safety Services can locate the carrier. This is a tremendous public safety service we will be able to provide. We are here because we think we have a site U. S. Cellular can do it in a way that will have minimal impact on the most sensitive areas of the Village. Details will be explained by Kenneth J. Kozyra, Agent for US Cellular.

Ken Kozyra stated he was representing US Cellular for New Hampshire and Vermont and leasing, zoning and locating sites for towers. Currently US Cellular does not have any facilities in Dunbarton. Have no transmitting facilities to cover Dunbarton as required by our federal license. Have selected a site which Richard and Nicolette Hecker own.

Dunbarton presently has one cell tower which located north of the Village which is SBA out of Florida . We checked into this structure and it will not meet our needs. In order for it to be operable, would have to be over 200’ tall and would involve considerable structural reconstruction. Financially, it would be better to build a new tower on the Hecker’s property. The proposed tower will be tucked into the tree line. The Hecker’s property is 1,000 feet off Route 13 at the end of a Class VI Road. At this point, Mr. Kozyra showed the Board an existing US Cellular coverage map. He stated there were many areas where there is no service. (attached) In addition, he presented a map showing what coverage would be for US Cellular by using the existing SBA Tower (attached).

K. Kozyra presented a set of sheets showing plans of proposed tower, building, fences, etc. (attached)

Mr. Kozyra explained each individual sheet and asked the Board if they had particular questions.

K. Kozyra stated there were two other towers in the general area, one in Weare 7 miles from the Dunbarton Border and one in Goffstown on Yarman Hill between 114 and Goffstown Back Road. He stated the estimated coverage of a cell tower is about three to four miles depending on the terrain and height of tower. He stated that they had looked at the Dunbarton Center Church, the Dunbarton Fire Department Tower and immediately ruled that out because of the structural capacity of the facility. Visited a number of parcels surrounding Powell Lane and was able to come to an agreement with the Heckers to lease a 100’ x 100’ parcel. If we used the SBA tower, it would add to our coverage but would not meet our goals. Helps us but does not resolve the problem. By constructing a 180 foot tower off Powell Lane it fills in 80% - 90% of Dunbarton coverage.

J. Trottier – Asked if they ever considered to going back to the SBA Tower and build the Tower to 180’.

K. Kozyra stated that the location of the SBA facility would never meet the needs and would need to be well over 200 feet lighted and marked. Would be significantly larger cost than building our own.

David Nault asked what the radius of the tower would be for coverage.

K. Kozyra stated that PCS Carriers came after US Cellular. Can’t draw a circle and say it is going to cover 2-3 miles. Depends on your location. Towers could be 3-4 miles apart and would give us sufficient coverage. Plan to clear as few trees as necessary. We would build a 12’ wide gravel roadway or driveway for access. We would never utilize the entire area that we lease so we can leave adequate buffers to our lease area.

Building is heated and has backup generator. Everything will be underground. Whole system will be grounded. Verizon uses a 12’ x 40’ shed. Will have a Master Licensing Agreement with other carriers on the Tower.

Ron Slocum asked who manages the layout.

Answer: CO located in Chicago. If layout changes, we would have to come back to the Board and lease additional land in the future.

J. Trottier – Asked if there was a need for a light on this proposed tower.

Answer: No need for a light on this tower. 199 feet or taller required to be lighted. We are not in any flight path of air traffic. The industry standard is 10’ between antennas on the tower.

J. Trottier – Asked why they were not proposing an antenna that looks like a tree.

K. Kozyra – We are not adverse to building a tree. It would have to be a 180 foot tree with wide branches 36 feet wide. Most people don’t like it to look like a Christmas Tree. There is one at Exit 18, all branches are the same. Call it the “bottle brush”. Boards have asked us to have the branches tapered. Would be 12-14’ branches at the top to 36’ branches at the bottom. This creates wind and snow loading. Would prevent us from having four carriers, etc. Also have brown sticks and flag poles. Also mono poles. Not structurally upgradable. All facilities located within the flagpole are effected and it also severely impacts your coverage. Will get a smaller coverage area. In this instance, we feel this is the perfect solution. Will be smaller visual impact.

J. Trottier asked how large a cement pad would the tower be setting on.

K. Kozyra stated this has not yet been determined.

Board asked about the upgrading of Powell Lane. Presently has standard utility poles 30-35’. Board noted that the Selectmen will have the final say as to what upgrades will need to be done to Powell Lane.

K. Kozyra stated that US Cellular makes about one visit to the tower a month. Very low use, Not adding any plowing. Use snowmobiles to access it in the winter. Could be six visits if all carriers are located on the antenna.

D. Nault – How long to build?

K. Kozyra – 6-8 weeks. Would like to have it built by this fall, especially if we have another winter like last winter.

John Trottier – Asked about clearing of trees.

K. Kozyra – Would be clearing a space 75’ x 75’ for the compound and leaving as many trees as humanly possible. US Cellular’s intention is to follow the existing access road.

John Trottier – If you have four carriers, people will make inspections at least three times a week.

Attorney Grill stated this could be handled as a “condition of approval”. Should be a detail.

K. Kozyra presented pictures of an existing tower in Hooksett. Stated that other Board have asked us the paint the structures specific colors, etc. (attached)

John Trottier – Asked about the wattage output.

K. Kozyra stated that each section has three channels for a total of 1500 watts per sector. (500 watts per section) Will located 12 antennaes on the top with four per section. All for US Cellular. We are not allowed to interfere with other companies.

David Nault – Asked if they have ever considered allowing the Fire Department use.

K. Kozyra stated they have done this in the past for emergency facilities. Would be more than happy for the Fire, Police or Ambulance to make it a condition of approval. Would want to know what their needs would be. Would be locating the heights lower than US Cellular. Possibly at 100’ would cover the entire Town.

John Trottier questioned the description of the lease area. Felt there might be an error.

K. Kozyra stated he will have the Engineering people look at this again.

John Trottier asked what the height above Route 13 would be.

K. Kozyra – Stated it would be 766’ above the ground elevation. It sits on top of a knoll which is wooded on four sides. We have tried to position it back from the road. Talked with David Maxim, Consultant who has spoken with the NH Municipal Association, has noted that it is the worst thing you can do is put in right along the side of the highway.

John Van – Stated there is an active runway about a mile south of the site.

K. Kozyra stated the computer program used recognizes private airfields.

The Board noted that the Horne’s are the owners of the airstrip.

John Trottier – What is the life of the Tower?

K. Kozyra – Plan on 30 years. Would be willing to post a security bond. If it is inactive for a period of time say 18 months or two years, or we agree to abandon, we would post bond for the removal.

John Van – In addition to the propane what other fuels will be stored on the facility?

K. Kozyra – We also have about four years of battery backup. Also have redundant system.

John Van – Would there be a requirement for the roadway to be kept open for fire and police?

K. Kozyra – No, would be similar to signing off on a Class VI road. The Town plows to the Hecker’s driveway.

David Nault – re the SBA Tower not being sufficient or cost effective, what about rehabilitating that tower. Can you bring back information as to why this would not work if the structure was enlarged, etc.

K. Kozyra – Would like more coverage and higher than this one. Would have to be 240’ – 260’ to be effective.

We are building a much larger facility.

Abutters were read as follows and it was noted that all were notified by certified mail:

John and Eleanor Swindlehurst – Present. Mr. Swindlehurst stated that Ken Kozyra did an excellent presentation. Very well done. He stated that Mr. Kozyra had stopped at his house and he was trying to work out an arrangement with them on land out in back of the Swindlehurst home. He also mentioned a Christmas Tree. I detest those things. We discussed and he came back and said it was a good active site. I wasn’t enthused about having it there. Unfortunately, we had a severe winter last year and I don’t believe he ever checked any other site on my property.

K. Kozyra – Stated that the other sites referred to would be significantly farther from Route 13 and would require utilities to be run for miles. Financially they were eliminated. Costs were too great.

J. Swindlehurst – Stated he still thinks the Tower they are proposing will be extremely visible coming down Burnham’s Hill. Just don’t let them put it there. There are other places that are available. You can put up shorter towers. Our Fire Department is on a hill. They get all sorts of interference from Massachusetts Fire Departments. I am definitely opposed to this particular location of the tower.

Peter and Linda Hecker – Stated he doesn’t see a problem with it but Richard Hecker is his brother. I disagree with John. The Tower would be beyond, etc. Visibility is not as great where it is proposed.

David/Martha Delaney – Not Present

Kenneth/Mary Alton – Present. Stated he saw the three balloons which were put up at noon time. When the Tower falls, who is it going to fall on.

K. Kosyra – Stated the Tower is built in multiple pieces in 30-50 foot sections which are designed and engineered to collapse upon themselves in event of failure, etc.

K. Alton – Stated there are airplanes circling around. We have a lot of air traffic. The Tower is ugly. Doesn’t belong in the neighborhood. Even if you put the thing back there, it really doesn’t matter, it is still ugly. I am going to be looking at it. I have cleaned up my property. People go by my property and tell me how they enjoy looking it. Now I am going to have a cell tower to look at. You can deny it. What about bathroom facilities?

J. Trottier – Indicated no bathroom facilities were proposed.

K. Kozyra – Stated the Tower was completely unmanned. Would be a Porta Potty on site during construction.

Ken Alton – If I build a house next to mine and I rent the land for the other house, I have two houses. This means another structure and another person. How can they do this?

Federal Aviation Administration – Not Present

Manchester Planning Department – Not Present

New Boston Planning Department – Not Present

Hopkinton Planning Department – Not Present

Hooksett Planning Department – Not Present

Weare Planning Department – Not Present

Goffstown Planning Department – Not Present

Bow Planning Department – Not Present

Concord Planning Department – Not Present

At this point in the public hearing, Attorney Grill stated that Planning Departments in surrounding towns are notified because of possible Regional Impact.

Members of the Public:

Ralph Fellbaum – Asked if there was anyone here from the Dunbarton Telephone Company? Will this effect the Dunbarton Telephone Company rates? If Dunbarton Telephone Company loses customers because of better cell phone coverage in Dunbarton, will they raise their rates to make up for lost customers?

It was noted that the Public Utilities Commission regulates phone rates and if Dunbarton Telephone Company decided to increase their rates, they would have to go before PUC to set their rates.

Ralph Fellbaum – What happens if the Tower becomes obsolete?

The Board noted that the applicants have stated a security bond would be posted with the Town to cover the removal of the Tower.

Ralph Fellbaum - Have you checked out the Fire Department. They have an 80’ Tower in the Fire Station. Any thoughts about using municipal land and having the money go to the Town instead of a private person.

K. Kozyra – Indicated they had already looked at the Town Municipality and the Fire Department. There wasn’t sufficient ground area surrounding the Tower, not enough land. Space is too tight and we ruled the facility out.

Ralph Fellbaum – Asked if the electrical equipment generates enough electricity to heat the building in the winter.

K. Kozyra – Stated the building was all electric heated.

George Holt – Stated he saw this on the agenda and therefore decided to attend. He presented the Board with two items pulled off the internet regarding Cell Tower, one the Warner Ordinance and the other a Technical Bulletin 14 re Planning for Wireless Telecommunications. (attached) He stated he had seven points he would like to bring to the Board’s attention as follows:

1. The main issue is visual impact to the neighbors. Abutters are concerned about it. The Warner Ordinance and the Technical Bulletin refers to height limitations which can be set on these tower. There are height restrictions on all towers. Warner’s is 20 feet above the top of the tree line. They don’t stick up 100 feet above the tree line. There should be height limitations along with removal provisions.

2. Bonding should be required for removal, etc.

3. Setback – Because of fear of the tower collapsing, should be height restrictions along with a 125 lateral radius from any buildings in the area. The engineering for the tower collapse do not always work.

4. No tree cut provision in the decision. There should be a woodland buffer. Warner has a 200’ buffer.

5. There should be no cutting of trees along neighboring properties also.

6. Reference to camouflage, by reducing the height of the tower would eliminate this problem.

7. Because we don’t have a Tower Ordinance, we should set aside a period of time for a monitorium and go before the Town Meeting with a proposed Ordinance. We should step back and think about this.

Other thoughts are, what about the air strip on the golf course? Applicant should be checking into this. Another option is to have a number of shorter towers rather than one tall tower up in the air.

Would strongly recommend the Board conduct a site walk. Need to know the visual impacts. The applicant can take photos of the view and superimpose the tower on the photo and show the Board what it will look like, etc. Should also go all around Town looking for sites. It would be helpful to have digital etc. of the tower.

K. Kozyra – Stated the Office of Historic Planning required the balloon tests and they took photos, etc. We will provide these to the Board at the next meeting.

Attorney Grill – Stated it is always possible to say you can have more towers at a lower height. It is physically possible but may not be financially possible. With regard to a monitorium, the applicant has already filed a valid application and the monitorium would not apply to US Cellular because of this. You can’t file a monitorium after the fact. The setbacks have been strongly criticized. Certainly side setbacks can be moved and the tower could be closer to Route 13. This does not make sense. We find the site that works the best. No tree cutting is difficult to do. This area is pretty immune to more development. There may be something we can do to preserve the tree line. Can have two lower towers. Some people will like that and some won’t.

John Trottier – Setbacks from property line winds up being out in the open.

George Holt – Regarding the rationale to a monitorium, we are in the process of working on the Master Plan right now. This could be a hot item. We need to go through the Master Plan first before proposing a tower ordinance.

Dave Breault – Stated that anything 180 feet tall is going to be pretty gaudy to the Town. We have a responsibility to the citizens. I think a couple of shorter towers dressed up like trees would be better. Concerned about large corporations dictating to smaller Towns. We have an obligation to our citizens.

Phyllis Biron - Stated she agreed with both of the abutters. They could go in 1000 feet into the Swindlehurst property. They could put the utilities underground. A lot of things could be worked out. There is a UPS flight that comes over our house every night and we are right adjacent to this property. Mr. Swindlehurst owns in excess of 100 acres in the back.

K.Kozyra – Indicated they cannot build any structure without the FAA approval.

K. Alton – Stated he saw them taking pictures of the balloons. The tower is 180 feet tall and 184 feet including the panels. What is to stop you from putting another antenna on, etc ?

It was noted that any increase in height would have to come back to the Board. It would also be an enforcement issue.

K. Kozyra – Stated they would have to comply with all State and Federal Regulations.

K. Alton – Stated he would be concerned about a 180 foot tower without lighting.

J. Swindlehurst – Stated with regard to George Holt’s recommendation about cutting on adjacent properties, you cannot tell me I cannot cut on my land. You think you are going to take my rights away. I am against that. What about timber management, etc.

G. Holt – Stated this would only be if the abutters agree to this. Without your permission, they would not be able to put the tower in, etc.

Tom Murphy – Stated that according the US Cellular, there is absolutely no way the Town can prevent this according to Federal law. This can be prevented if there are reasonable alternatives.

K. Kozyra – Indicated that many municipalities have made trade offs. Many Towns have made the decision to have many short towers rather than one tall tower. Higher towers limit the number of towers and lessen co-locations, etc.

John Van – Asked if they have done studies for smaller antennas, etc.

K. Kozyra – Stated if they considered 20 feet above the tree line, would require three towers to cover Route 13. You would looking at six or seven towers to cover your Town. If that is acceptable to the Town of Dunbarton, could consider it.

Attorney Grilll – Stated that without an antenna ordinance, we have to guess what you want. No community ever agrees amongst themselves. We will find some other solution. We tried to stay away from the most sensitive areas of Town.

George Holt – Asked that as you picked the site and proposed tower 180 feet tall, did you consider other elevations etc. 35 feet is allowed within the ordinance. What would be the percentage of coverages for other smaller towers?

K. Kozyra – Presented maps showing coverages for 150 foot tower, and stated that when you go to a 120 foot tower, the gaps get considerably larger. Stated there would be a significant decrease in coverage and would not close the gap into Goffstown.

George Holt – Stated it would be helpful if they did proposed coverage for a 100 foot tower or one 35 feet above tree line and measure and compare percentage of coverages.

At this point in the public hearing, John Trottier noted that the applicant has not addressed the Variance criteria questions necessary for the granting of a Variance. The Board agreed the applicant will address them next month.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for a Request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance from U. S. Cellular on behalf of the owners, Richard and Nicolette Hecker (C3-5-7) to allow them to construct and operate a 180 foot free standing tower with 12 panel antenna and a 12’ x 20’ ground equipment building at their property on 12 Powell Lane in the Low Density District in Dunbarton, NH until the next meeting which will be held on Monday, August 11, 2003. Alison Vallieres seconded the motion. The motion passed unanimously.

CONTINUED PUBLIC HEARING – REQUEST FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW GARY KING (B4-3-1) TO PUT AN ADDITON ON CLOSER THAN THE REQUIRED SETBACK OF 50 FEET AT HIS PROPERTY AND A VARIANCE TO ARTICLE 5, SECTION G.1. OF THE WETLANDS CONSERVATION DISTRICT TO ALLOW HIM TO PUT A STRUCTURE CLOSER THAN 125 FEET FROM THE WETLANDS DISTRICT ON HIS PROPERTY LOCATEDON 1175 BLACK BROOK ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Gary King, applicant, presented the Board with an updated plan of the proposed 26’ x 24’ addition. (attached)

The Board noted the proposed addition will be 77 feet into the Wetlands Conservation District Setback of 125’ and 27.9’ from the Town ROW of Black Brook Road.

Steven Cohen – Stated that he felt there was no reason to grant the Variance. The applicant has not addressed the necessary questions necessary for the granting of a Variance. He stated he could either go up with the addition, or put the addition on the back of the house.

The Board noted that if he built on the back, he would still be encroaching on the Wetlands District Setback and still require a Variance. In addition, he would have to change his whole house inside around because of the existing layout.

George Holt – Stated that the Conservation Commission asks that they move impacts away from the Wetlands District Setback.

S. Cohen further stated that he was very concerned regarding the Town, that no one feels it is within the Town’s responsibility regarding the filling of wetlands.

George Holt – Stated that about a year ago, the Conservation Commission was contacted and they had Mary Ann Tilton, Environmental Services, inspect the property. At that time, she stated that it had not encroached on the wetlands at that time.

Steven Cohen – Stated that cars go zooming down the road by the property. Even though the Conservation Commission is not concerned about the Town right of way closeness, I can’t think of another property on that road that is that close to the road. In addition, the applicant has not addressed the five elements required for the granting of the Variance. Concerned about future owners of the property with small children being close to the road, etc.

Five Rivers Conservation Trust, David Howe – Presented a written statement regarding the five criteria necessary for the granting of a Variance. (attached)

At this point in the public hearing, John Trottier stated that the Conservation Easement does not extend onto King’s property, therefore the statements only apply to King’s land and not Five Rivers.

David Howe – Stated he had spoken with Tom Burack this afternoon. Burack sold the property to Gary King. Burack stated he does not recall ever making a statement that an addition could be put on the property, etc.

Steven Cohen – Stated the burden of proof is on the applicant. He has presented no evidence on these criteria. This is not in the public interest. No evidence has been presented on the five standards for the granting of the Variance.

Stated again that the burden of proof is on the applicant. Stated he did not see how you can possibly agree with the applicant.

Members of the Board:

Alison Vallieres stated that she felt that the house and lot were pre-existing before the Wetlands Conservation District was established. Tom Burack sold the house to Mr. King and was aware of the Wetlands Conservation District at that time. Almost Mr. King’s entire house is within the 125 foot setback. Mr. King has a right to put an addition on his property. There should be some common ground between Mr. King and Mr. Cohen. I realize Mr. Cohen is concerned about filling on the property. It will be up to the Board to work this out and make a decision.

At this point, Mr. King stated his house had been built in 1978 or 1979.

Alison Vallieres will research as to when the Wetlands Conservation District Ordinance was voted at Town Meeting.

David Nault pointed out a paragraph within the Wetlands Conservation District Ordinance (page 23) as follows:

G. Specific Provisions

4. Notwithstanding other provisions of this ordinance, the construction of additions and/or extensions to single family dwellings may be permitted within the Wetland Conservation District provided that the dwelling lawfully existed prior to the effective date of this Ordinance and all other local, state, and federal requirements are met.

At this point in the public hearing, the Board agreed they needed more time to digest all evidence presented.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment close the public hearing, review the evidence and make a decision at the next meeting for the Request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance to allow Gary King (B4-3-1) to put an addition on closer than the required setback of 50 feet at his property and a Variance to Article 5. Section G.1. of the Wetlands Conservation District to allow him to put a structure closer than 125 feet from the Wetlands District on his property located on 1175 Black Brook Road in the Low Density District in Dunbarton, NH. The motion was seconded by John Van. The motion passed unanimously.

OTHER BUSINESS:

Tom and Maddy Murphy, Town Farm Lane, next to the Golf Course –

Mr. And Mrs. Murphy stated they had spoken with the Building Inspector and he had referred them to the Zoning Board for an interpretation of the Home Occupation Section of the Ordinance.

Mrs. Murphy wants to serve dinner to eight people on Thursday and Friday nights only in her home for a price. She needs to know whether the Board considers she falls within the Home Occupation Section of the Ordinance.

After discussion, the Board reached a consensus that Mrs. Murphy should apply to the Building Inspector for a Home Occupation.

In addition, Alison Vallieres stated she was certain there were specific health laws with regard to serving food to the public. The Board stated Mrs. Murphy should contact the New Hampshire Health Department regarding restaurant laws and make sure she can adhere to them. Building Inspector will probably require some sort of written approval, etc. from the Health Department prior to the granting of a permit.

There being no other business, the Zoning Board of Adjustment adjourned at 11:20 p.m.

Respectfully submitted,

Alison R. Vallieres

Secretary