Board of Adjustment Meeting Minutes

Minutes of 9/10/2020

September 17th, 2020

Town of Carroll Zoning Board of Adjustment
92 School Street
Twin Mountain, NH 03595
Meeting Minutes
September 10, 2020
7:00 P.M.

Members Present: Chairman Aaron Foti, Vice Chairman Andy Smith, Janet Nelson, Sandy Pothier, Ken Mills, Selectmen’s Representative Rob Gauthier

Public Present: Heather Brown, Planning/Zoning Secretary; Peter Monahan, Mario P.,
Representing Vertex Tower Assets, LLC: Attorney Francis D. Parisi of Parisi Law Associates, P.C.; Stephen Keiler, Vertex Towers; Tom Johnson of Proterra Design Group

Representing Industrial Tower and Wireless, LLC: Attorney Steven Grill; Kevin Fadden, Site Acquisition Specialist; Kevin Delaney, Engineering & Regulatory Compliance Manager; and Shayna Galinat, Staff Attorney.
Minutes Taken By: Judy Ramsdell

Pledge of Allegiance

Item 3 of the Agenda: Approval of Minutes of August 13, 2020

Chairperson Foti asked for an approval of the minutes of the August 13, 2020 meeting minutes. A motion was made by Andy Smith to approve the August 13, 2020 ZBA meeting minutes. The motion was seconded by Ken Mills. All in favor, 5-0. The motion passed.
Andy Smith officially reclused himself from both applications as he has an employment relationship with one of the property owners.

Chairperson Foti said that we do have two special exceptions that are much similar requests and applications. Our Board has done some discussion with our counsel and the direction we are thinking to go is to call a joint hearing with the Planning Board. We feel that there is a lot of overlapping criteria, and we want to be sure we are looking at the same material and looking at overlapping interests before we move forward with either of these applications. If either application wants to do their presentation tonight, it can happen tonight or if it serves them better we would review the content at the joint meeting with the Planning Board. Chairperson Foti said he open to a motion to go that direction with these applications.

Ken Mills made a motion that the ZBA delay receiving the information on the applications and making a decision until we have a joint hearing with the planning board at the earliest opportunity. The motion was seconded by Janet Nelson. There was no discussion. All in favor, motion passes.

Chairperson Foti said the ZBA will make a request to the planning board for a joint hearing on both of these applications. We have two applications to hear, the Board is happy to entertain both applications tonight realizing the circumstances and overlapping status. If they want to save that for the joint hearing, it is up to the applicants.

Attorney Parisi said he is not opposed to having a joint meet with the planning board at one meeting. He had a couple of procedural items. The Planning Board has a regularly scheduled public hearing scheduled in October. Would it be possible for the ZBA to get on that Planning Board meeting schedule? That meeting is scheduled for October 1st. Ken Mills asked if anyone can’t make the October 1st meeting? All members can attend. Aaron asked if we need to make a request to jump onto the Planning Board agenda? Ken said we should contact the planning board chairperson and coordinate that. As this is a very unusual circumstance, the planning board should be amenable to a joint meeting.

Ken Mills made a motion that the chair of the ZBA, contact the chair of the Planning Board and coordinate a joint hearing on the first of October. The motion was seconded by Janet Nelson. Arron said he is not sure we need to vote on this. We are all in agreement to be there. Ken rescinds his motion.

Item 4 of the Agenda: Application for a Special Exception
Applicant: Vertex Tower Assets, LLC
C/O Parisi Law Associates
Property Owner: Robert J. Burns & Carmen T. Burns
Address: Route 3 North, Tax Parcel 408-002-001
Zoned Rural

Attorney Parisi said he has had a public meeting and a public hearing in front of the planning board. The public has heard him speak two times. He has the same presentation for the ZBA that he gave to the planning board. He said he will present a brief presentation this evening.

Vertex Towers is seeking a special exception from the zoning board and a special use permit and request for site plan review from the planning board for a telecommunications tower. An application was filed back in July. We conducted a visibility analysis, which was advertised and we have the results of that. We were supposed to be here at your meeting last month, but was rescheduled due to advertising issues.

Vertex Towers is a telecommunications infrastructure developer. We develop, manage and own telecommunications facilities. We don’t provide the service. We partner with the companies who provide the service, i.e. Verizon, AT&T, Sprint. We have sites in Lisbon, Woodstock, Bath, Center Conway, Holderness, Thornton, Bristol.

We have submitted an extensive application package. Some questions that came up at the first planning board meeting is we will post a bond to remove the tower if it goes out of service. We have provided an estimate for removal costs and a sample bond. We put up a balloon and took photo simulations for visibility and lack of visibility of the site. Topography is very dramatic with a significant tree canopy. We find the visibility is not as much as the site suggests. We have provided a lot of radio frequency data to show there is a gap and have retained a consultant. We have an immense amount of data that is provided to your consultant.

This facility is not going to require lightning. We have analysis to show that it does not require lighting. We have the third Supplement to provide tonight, FAA Obstruction Analysis Report. We have not done a final FAA clearance yet. It is a fluid process, and we may be asked to make changes. We will go back to the FAA once the application and site is finalized.

The need for telecommunications is very dramatic. We have been looking at this site for over two years. We know there is a gap and we know where the existing towers are. We have been in this area for a long time and experience the gaps. We use existing structures if possible, but there are no tall structures in Carroll. There is no existing infrastructure we can use. We needed to find a willing landowner and a buildable lot. Land has to be accessible. We have been working on this project, and we filed an application in early July. It has not been a rush job. There is a five mile stretch between the tower behind the town hall and the tower in Whitefield that you don’t have coverage or you drop calls. There is a huge hill here outside, but it wasn’t intended to go past 115 intersection, and it wasn’t intended to cover north to Whitefield. The challenge becomes the terrain. Tax Parcel 408-002-001 Route 3 North is the location of the site. The lot has ample coverage on Route 3. Access to the site is a shared driveway. They have to do some minor improvements to the driveway to make it passable. There is a cut path that goes up to the site. They will follow that and it will be improved to allow construction and maintenance vehicles. Very wooded lot and it will remain wooded. The site is over 500 feet from Route 3. The road itself is about 800 feet because it is curved. We are not going to have a corridor looking directly at the tower. Many towns ask for a no-cut zone. This lot is not intended to be logged and they will agree to maintain the tree canopy around the compound.

Site Plans: Some towns want the towers on higher, steeper property. We try to do what is right by the town and don’t take the easy route. We were just approved in Holderness and they were very concerned with visibility. We found a site that solved their coverage objective and fulfilled the gap in a very difficult site. Our engineers have experience designing roads and designing sites. It will be a lattice tower similar to the one next door. It is 150’ tall but sits on a one foot foundation so it is 151’ feet with a small lighting rod that is grounded. It will be 157’ feet to the top of the lighting rod.

Vertex has submitted Supplemental RF Data, and the town will be getting a report from the consultant the town has engaged. Wireless communication is not just a public convenience; it is a public safety necessity. The tower exceeds all safety requirements under FCC regulations. At the lowest height of 112 feet, the highest emissions does not go above 0.210% of the Maximum Permissible Emissions requirements, which is less than 1% of the MPE requirements. The facilities are safe and the technology is safe. We submitted photographs of the visibility demonstration.

Vertex is going to be doing a side by side demonstration with the other cell tower company. The Planning Board asked them to do another one even though they did it already. We want to show the lack of visibility. He is not saying it is invisible, but we picked a location because of the topography, terrain and the way the roads flow that you can’t see the tower for a significant amount of time. Minimal visibility given the terrain.
We have engaged the same consultant for the next balloon test. Attorney Parisi said we wants to clarify we are not producing the simulations again. We took 25 photographs that last time. The red show where there is no visibility and green show some visibility. We are building a 151’ tower, and from some places you can see some of the tower, but you are not seeing the entire structure. We picked a site that mitigates the visibility. You will have the opportunity to see the balloon. The limited visibility is muted by the back drop. When we conducted our simulation on 8/3, we could predict where there might be visibility. When you are in a tunnel on Route 3, you don’t have much visibility. The lack of visibility won’t change in the winter. We work with multiple providers, and we build it for one with a capacity for multiple. You may be able to see about 30 feet of the tower, but often it blends in with the sky.

The proposed facility meets all of the siting criteria for a Telecommunications Tower under the Town of Carroll Zoning Ordinance. No variances or waivers are required. The facility meets all height restrictions and setback requirements. The proposed facility meets all the requirements for a Special Exception:
--The proposed use shall not adversely affect the capacity of existing or planned community facilities.
--The purposed use shall not adversely affect the character of the area affected.
--The purposed use shall not adversely affect the traffic on roads and highways in the immediate vicinity.
These facilities are unmanned except for about six weeks of the construction. There will be no water or sewer. No impact on noise, smoke or glare. No lighting will be required. The road and compound are gravel. The facility will meet all the special exception criteria.

Chairperson Foti asked if any members of the public wanted to speak in opposition to the project. There were no comments. Chairperson Foit asked if any members of the public wanted to speak in favor of the project. There were no comments.

Ken Mills made a motion to continue this application from Vertex Towers until the joint hearing with the planning board. Attorney Grill asked when the date would be. The earliest opportunity is October 1st. Ken Mills amended the motion to include the joint hearing with the Planning Board on October 1st. The motion was seconded by Sandy Pothier. All in favor, 4-0. Motion passed.

Item 5 of the Agenda:
Application for a Special Exception
Applicant: Industrial Tower & Wireless, LLC
Property Owner: Bayroot, LLC C/O Wagner Forest Management, Ltd.
Address: Route 3 North, Map 401 Lot 005
Zoned Rural

Attorney Steve Grill represents ITW, who is here for a special exception application. Also, in attendance are: Kevin Fadden, Site Acquisition Specialist; Kevin Delaney, Engineering & Regulatory Compliance Manager; and Shayna Galinat, Staff Attorney.

ITW owns the parcel next door that has the tower, which was built a couple of years ago. ITW owns the tower on leased land in Whitefield. The coverage gap exists between those two towers. ITW and Vertex have been looking for sites for a couple of years. They have been aware of the gap. ITW has headquarters in Massachusetts with a satellite office in Dunbarton, N.H. We have a lot of towers in New Hampshire.

Attorney Grill said that RSA 676:2 allowing for joint meetings comes into play, and he is not totally surprised we will be having a joint meeting. Both boards will make independent deliberations, planning board will vote on their criteria and the ZBA will vote on their criteria. There is certainly some overlap. The criteria the Planning Board looks at for a Special Use Permit are distinguishable from what this board looks. This board focuses on 701.4 for Special Land Uses, and Special Exception 804.3.a(4) and the three subsections are what we are concerned with. We agree with Vertex that neither tower will impact planned community facilities. We are not proposing to bring in bus loads of children to go to the schools. We will not be impacting the town facilities. We would actually help improve public safety by personal communications and if the town wants town services can go up on the tower. The last one, traffic on the roads and highways in the immediate vicinity. These facilities are built over a few weeks then they are visited periodically after that for maintenance. It will not have people coming in and out all the time. It is a minimal traffic situation. The real issue is the character of the area affected.

This Board has to be careful because these facilities enjoy a special status under federal law and there has to be a reasonable opportunity to close this coverage gap. You can’t have criteria that says no tower can be built. That criteria needs to be applied with federal criteria in mind. One of these has to have an opportunity to provide this needed service for the coverage gap.

The Planning Board has retained a consultant who is close to finishing his report. The balloon test is probably the one that gets the most in the criteria with the ordinance. Attorney Grill said that he has a different recollection of the discussion with the planning board about the original balloon test that was done by Vertex. That original test was done on a windy day, which can reduce the visibility of a balloon. At the last Planning Board meeting, ITW asked for a balloon test to be done for both applicants on the same day. The Planning Board asked specifically that both parties agree to that, and both companies did agree. The upcoming balloon test is scheduled for September 22nd, from 8:00 a.m. to 11:00 a.m.

Attorney Grill said that is basically ITW’s view of the ZBA’s involvement in this matter.
Kevin Fadden will present a brief overview of the proposed project and site.

The proposed tower will be located off Route 3 North, Map 401, Lot 005, which is owned by Bayroot, LLC and managed by Wagner Forest Management. It is a 426-acre parcel, part of the 1,600 acres owned by Bayroot. There is an existing gravel drive for a logging operation. We will be utilizing the existing drive. It is 450 feet from the property line to the center of the compound. It flares out and allows for the construction vehicles and maintenance crews to all be exiting north. It has a 25-foot access drive to a 100’x100’ compound area. The tower will be in the center of an 80’x80’ fenced area. It is a lattice tower, exactly like the one next door to the town hall. Delineated wetlands will not be impacted. Six-week process for construction. The lattice tower will blend into the existing tree line. Around the tower is the shelters, designed for 5 carriers. We have talked to the Fire Department and Road agent about the proposed gate and are working with them on the details for planning board review. The height of the tower is 170’. 125% of the tower height for the fall zone, 225 feet is the fall zone. Center of the tower is 425 feet off the road. Trees will remain. 20-foot grade change from the property line on Route 3 and goes down about 20 feet, 1,175 down to about 1,155. Gradual 4% grade down an existing trail. The nearest home is 1,500 feet away. We feel it is a really good site.

Kevin Delaney reviewed some coverage studies. The Whitefield tower is 3 ½ miles to the site, and the Carroll tower is 4.18 miles to the site. Kevin reviewed their map of the towers in the area. ITW is a cell tower wireless carrier, but we are familiar with larger names, T-Mobile, AT&T, and Dish Network is coming to the market. We are running propagation studies and are familiar with this process. Verizon and AT&T are on the Whitefield tower and Verizon is on the tower here in Carroll. ITW has a good relationship with the carriers. We have reviewed the coverage studies and there is a 4 ½ mile gap on Route 3 where there is no service or coverage drops. The Route 115 coverage gap is about 3 ½ miles. Looking to provide coverage to the secondary roads as well. We feel our proposal will fill the coverage gap. We did some research in 2015 with regards to traffic: 5,500 cars a day on Route 3, and Route 115 is 3,000 vehicles a day. There is certainly need there. It is a public safety issue, and is a public safety issue as well as police and fire don’t have service in that area and can’t use their terminals.

The proposed ITW facility will not adversely affect the capacity of existing or planned community facilities:
--Between existing Twin Mountain site and proposed site, ITW will be able to provide space to all five major wireless carriers in the market.
--The proposed site will not overload public or private water, drainage or sewer systems.
--No significant increase in storm-water runoff.
--Unmanned facility which does not require sewage.
--No excessive demand for municipal services such as police, fire protection, schools.
--There will be free space for the police and fire antennas on the structure.
The proposed ITW facility will not adversely effect the character of the area affected including, but not limited to, consideration of such factors as the nature of the proposed use itself, noise, vibration, volume and type of traffic, lighting, glare, odors, hours of operation, amount of impervious surface, or building size and mass:
--The character of nearby land minimizes visual impact.
--Only routine maintenance—no more than a few visits per month.
--No odors generated.
--1500 feet from nearest and only nearby dwelling.
--No impact on view of mountain scenery or the Presidential Range of the White Mountains. It may be visible some when leaving town.
--Hours of construction Monday through Friday.
--Proposed access drive is gravel
--Compound proposed six inches of ¾ inch crush stone
--No wetlands will be impacted.
--FAA determination of no hazard to air navigation—no lighting required. Any lighting on ground will be shielded and not visible from the property.
--There will be Signage as required by FCC to identify site.
--The site is well over 400 feet from the street. Lights are on a motion sensor so they won’t be distracting.
The proposed ITW facility will not adversely affect traffic on the roads and highways in the immediate vicinity:
--No undue traffic congestion
--Won’t impair pedestrian safety
--Unmanned facility
--No employees
--Limited use
--After construction, visits to the site are 2-3 times per month for routine maintenance
--We will only clear what we have to.
--There will be locked gates at the entrance to the site and compound. Police and Fire will have access to those gates. The fencing surrounding the site is min-mesh anti-climb chain link fencing.

ITW is a Carroll landowner and taxpayer. We are the owners of the tower here in Carroll. We use our own construction crew and tower technicians. We do all our own in-house leasing and permitting. ITW has been in business for years. We have been around and know what we are doing. All our work is done by in-house, experienced staff. Our tower technicians are certified and experienced. We have even spoken to the Fire Chief and have offered to provide free training and PPE to their staff. We have our own landscaping and maintenance crews. We have climbed and built thousands of towers. We are in town currently and hope to have this second site. We are here for the long haul.
Janet Nelson asked if the two-way radio system he spoke of is incorporated in the tower. Kevin said the two-way radio antenna is top-mounted on the tower. He said that is commonly offered throughout New England.
Are the antennas for fire and police a requirement? Kevin said not in this Town but they offer it as part of being a good neighbor.

Chairperson Foti asked if any members of the public wanted to speak in favor of the application. There were no comments. Chairperson Foti asked if any members of the public wanted to speak in opposition of the application. There were no comments.
There appears to be confusion with the times of the balloon test. The Planning Board meeting minutes state 8:00 a.m. to 11:00 a.m on September 22.
Ken Mills made a motion to continue this hearing for ITW’s application for a Special Exception until our joint hearing with the Planning Board on October 1st. Sandy Pothier seconded the motion. All in favor, 4-0. Motion passes.

Item #6 of the Agenda: ZBA Rules of Procedure
Chairperson Foti said he did a lot of work on these. He did incorporate everything we talked about last month. He followed the minutes to make the changes. He did add a couple of sections from the OSI rules. He did realize that going by our current Rules of Procedure, the amendments need to be read at two successive meetings immediately preceding the meeting at which the vote is to be taken so we will be looking at November to vote on approving these amendments.

It seems there is a possibility we will be dealing with two applications at the same time. There is an allowance for joint hearings already in our rules. It will depend on how we hear those joint issues. It was pointed out that it is pretty uncommon to receive two applications. Chairperson Foti said that it isn’t about competing applications, it is about overlapping jurisdiction is the challenge. We need to be more proactive about proposing amendments to the ordinance for the planning board to act on each year. We need to make our recommendations. The planning board has a wide enough authority and requiring a special exception makes no sense. The prior ordinance that was updated three years ago didn’t have the chart of uses that we have on our current ordinance on page 12. He thinks it is an oversight. The advent of the chart is where it says you need a special exception. He said we may want to recommend to the Planning Board to remove the special exception requirement from the ordinance. It is redundant.

Chairperson Foti recommended we read through the amendments for the Rules of Procedure and see if we are o.k. with these proposed amendments. A copy of the proposed amendments is attached to these minutes.
The Board is recommending the following changes to the amendments presented tonight:

--Section 4. Meetings
a. Regular Meetings:
--i. Other meetings may be held on the call of the chairperson provided public notice (add: is posted on the town’s website and on the town hall bulletin board) and notice to each member is given at least 72 hours excluding Saturdays, Sundays, and legal holidays prior to such meeting.
--ii. Delete Except and start with In an emergency
b. Quorom:
--Make iv a sub of indent iii
d. Order of Business:
--change ii Roll call by (change Clerk to Secretary)
--Section 5. Application/Decision
a. Applications
--For each hearing, the secretary shall share all materials with members of the Board electronically (add: or upon request) in print at least three (3) days prior to the meeting.
c. Public Notice
--ii (Add: applicant and) abutter notice shall be made by certified mail (add: return receipt)to (add: the applicant and) all abutters…..
d. Public Hearing
--iv. Each person who appears shall be required to state (change his to their) name and address and indicate whether (change he is to they are)…
--iv (Add): 1. In the case an agent or counsel or applicant is acting for an owner, a notarized letter from the owner authorizing the “agent” or “counselor” to act in his/her stead is required.
--Change iv 1. To 2.
In the case an agent or counsel is acting for an applicant, a notarized letter from the (change owner to applicant) authorizing the ……
--Add 3.: Members of the public, including abutters, may be limited by the Chairperson to a five-minute presentation.
e. Decisions
--i. Correct spelling “board”
--iii. Notice of the decision will be sent to the applicant by certified mail (Add: Return Receipt)

Andy suggests that we add the date when this is amended. We need to read these at two public meetings. If we don’t have a lot on our joint meeting agenda with the planning board, we could do it at that meeting. These changes are subject to review and approval by Town Counsel.

If anyone has thoughts on the budget, please reach out to Aaron.

A motion was made by Ken Mills to adjourn the meeting at 10:09 p.m. The motion was seconded by Sandy Pothier. All in favor, 5-0. The motion passed.