Town of Sutton
Planning Board
January 13, 2009 Minutes
Meeting called to order at 7:10 p.m. by Peter Blakeman, Acting Chair. Members present were Carrie Thomas, David Burnham and Robert Wright, Jr., Ex-Officio.
Agenda Item at this hearing is for Omnipoint/T-Mobile/Michael Johnson for additional antennas to be placed on the lattice tower at Summit Road. Application is complete. Abutters have been notified and postings were posted.
Wright moved to accept the application as complete. Thomas seconded. Unanimous vote. Application Approved.
Mr. Francis Parisi who works with Mr. Johnson at Omnipoint was in attendance for this hearing as Mr. Johnson had to be elsewhere.
Before the presentation was given by Parisi, Blakeman asked to clarify that the Applicant was Omnipoint, the owners of the tower are Crown Castle and the property owner is the Sutton Conservation Commission. Per Parisi, Omnipoint/T-Mobile is a “tenant” who is attaching telecommunication antennas on an existing tower. Wright added that the existing tower is owned by Crown Castle. Parisi stated that Crown Castle owns a lease on the property from Northland who previously owned the property and sold it or donated it to the Town of Sutton while retaining the rights to the lease and the tower activities including the access way. Blakeman asked if Northland still owned the ground underneath the Tower. Betsey Forsham, Conservation Commission representative stated that the Town of Sutton
owns the land but the lease and building is owned by Crown Castle. Parisi stated that he believed that at the time of the subdivision Northland transferred the land to the Town retaining the rights to the tower and the land underneath it. He stated that they retained an easement. Wright stated it breaks down as the Lessor is Crown Castle, the Lessee is Omnipoint/T-Mobile and the owner of the underlying property is the Town of Sutton.
Parisi went on to explain that the plan is to add a 10’ pole with 3 telecommunication antennas to the existing older lattice tower that is already at 90’. The pole and antennas will not exceed 100’. The antennas are approximately 6” wide by 4’ tall and will be wrapped tightly to the pipe. The pipe will get mounted to the top of the structure and then the antennas get mounted to the pipe itself. This is referred to in the industry as a “can” as the antennas are so tight to the pole and it actually looks like a can as opposed to the traditional triangular mounting telecommunications rays that have been previously used.
Thomas asked if these antennas would be in addition to or replacement of existing antennas. Per Parisi they will be in addition to what is already there. Omnipoint/T-Mobile is another communications company like Verizon and is trying to build up their network on I-89 going from I-93 to I-91. They are trying to utilize existing structures instead of building new ones.
Wright asked which tower they wanted to put the antennas on as there are two existing towers on the property in question. Per Parisi they would be using the older lattice tower for the antennas. He also asked for clarification as to the 100’ height total. Parisi stated they would like to put in a 10’ pipe with 3 antennas attached that would not exceed 100’ in total height.
Blakeman asked for clarification on the area with the two towers. The question raised was is there two different areas with towers or are the two towers in one area. Forsham showed the members where the towers are located on the tax maps on file as they are both in the same area.
Wright referred to page 14 and page 15 of the Zoning Ordinance and stated that the Planning Board is worldly focused to access, bonding and security. As this is less than 20’ he asked if the Board was obligated to pursue the bonding. He believes the excess has already been met but wondered about the security. As Omnipoint-T-Mobile is only leasing he felt that this did not apply but asked as he is not sure and would like to find out. He felt this could be a question for Town Counsel. Burnham stated that if Town Counsel input was needed that the Board would not be able to get and answer at this hearing. Thomas felt that as there is no change in access the bonding is not an issue as it is used for construction purposes. Blakeman interjected that bonding is also used for removal
of equipment. Thomas stated that this must be in place for the current tower that is already there. Wright asked that if Omnipoint/T-Mobile was leasing on that section on the tower were they responsible for bonding security. Burnham thought that in order to get this answer the entire lease agreement would have to be reviewed. Wright felt that if that was the case then the lease would control this and not the Planning Board. Blakeman read from page 19 of the Zoning Ordinance, Section 8.3 “Security for Removal” – recognizing the hazardous situation presented by abandoned and unmonitored PWSF, the Planning Board shall set the form and amount of security that represents the cost for removal and disposal of abandoned facilities in the event that a facility is abandoned and the facility owner is unwilling or unable to remove the facility in accordance with section 10.2. The amount of the security shall be based upon the removal
plus 25% as provided by the applicant and certified by a professional structural engineer licensed in New Hampshire”. Burnham stated that he felt this should be up to the lease agreement between the Lessor and Lessee not the Planning Board. Wright member asked for clarification from Francis Parisi, as he is an attorney, if the agreement is with the underlying Lessor, Crown Castle. Wright went on to say that if it was Crown Castle who assumed the responsibility if things went south, they would remove everything. The arrangement between Omnipoint/-T-Mobile and Crown Castle is internal and should not affect the Board because 1) it is less than 20’ and 2) it is not ground mounted. He felt that this was not an applicable issue.
Blakeman read from page 19 of the Zoning Ordinance “The owner of the facility shall provide the Planning Board with a revised removal cost estimate and structural evaluation prepared by the professional structural engineer licensed in New Hampshire every 5 years from the date of the Planning Board’s approval of the site plan. If the cost has increased more than 25% then the owner of the facility shall provide additional security in the amount of the increase”. He felt that updates on this were needed at this time. He also felt that this is not something that would affect this application but would like to make sure that this has been followed-up on. He also inquired as to what kind of construction equipment would be needed to do this work. Parisi stated that a crane was not
needed as someone could climb the tower to install the antennas. They would be using concrete to add on to the existing pad but felt that this could be mixed on site. The new pad would be 20’x20’. The pad itself is 400’2 (20’x20). Blakeman asked about the impact area of the disturbed construction site is bounded by the limit of work as shown on the map. He could not find any work shown and would like this done. Parisi stated that what exists right now is an “L” shaped pad and with the addition it would square this pad off. Blakeman asked if the existing compound as referred to is the overall lease area. Blakeman would like to see a plan that shows the actual lease area of the compound area and where everything is located in the area. He felt that the plans submitted did not show this information satisfactorily. Parisi did not have this information with him. Blakeman
would like a current map showing this information. He also wanted clarification if the other pole was outside of this area. Burnham asked if there had been a separate lease done after the tax maps where done. Parisi told members that the other tower is newer than the one they want to use. Blakeman asked about the distance from the tower and the property line. Parisi stated it was 108.2’. Blakeman went on to say that he would like this information on the updated certified plan as well. Parisi asked the members for clarification on what they are looking for. They want an accurate plan showing the lease area in relation to the property line. He also asked where the “fall line” is. Parisi stated that a bigger area is leased than what is on the map that was submitted. He went on to say that the ground being disturbed would not be going any where near the property lines in any direction. Blakeman
felt that there may not be any impact but he would like to see the information. Parisi stated that the engineer certified that the tower itself is 102’ from the property line. Blakeman stated that he did not believe that an engineer could certify that information. He thought that New Hampshire law states that a surveyor only can do this.
Wright asked for clarification on this subject. He wanted to know if the “fall zone” was outside of this square. He stated that the Lessor is responsible for the “fall zone” for ground mounts. He thought that the concern was that if something fell outside of the “perfect square area” because his understands that the equipment is going to be inside the “square area”. If something comes down will it fall outside or inside the “square area”? Members would also like to see the “fall zone” area on the updated certified maps as well. Wright went on to reference the section on “Dimensional Requirements” on page 15 of the Zoning Ordinances. Thomas stated that the tower has been there for a long time and
this was not an issue. Parisi referred to the Zoning Ordinance, Section 6.1E Fall Zone for Non-Ground Mounts which reads “in the event that an existing structure is proposed as a mount for the PWSF the fall zone shall not be required.” He also stated that the Board needs to distinguish whether the “fall zone”, which is referred to as “tower height set-backs” has any dimensional issues with respect to the set-back from the property line not the lease area. The Board members agreed with this. Blakeman wanted to understand 1) “in case of the preexisting non-conforming structures PWSF and their equipment shelters shall not increase any non-conformities” from the Zoning Ordinance on page 15 under Section D:6.1E. Is this the way it is set up? Is the lattice tower right now conforming with the “fall zone” as he cannot tell by the plans submitted? Parisi reiterated that the first
sentence of the ordinance states “in the event that an existing structure is proposed a fall zone shall not be required”. Blakeman felt that this was referred to as using existing structure like a water tower or a big chimney stack not an existing lattice tower that did fall under this zoning when it was first constructed.
Thomas asked if the Board could go back and look at the first application submitted to see what was on file. If it was non-conforming when the tower was built and at that time they needed a variance it should be on record. Wright stated that he thought that this is an “out clause” and it is saying that the existing, regardless of what the existing structure is, it is an existing structure by its own definition and the applicant is adding to that existing structure within the guidelines of the 100’ which was gone over, and if responded to E trumps D by the definition and it would appear to him. He does not think that is an issue but Town Counsel can be asked for an opinion. Blakeman stated that even if it is an existing structure, which it is, if that existing structure is
non-conforming are we increasing the non-conformancy. This is the point he is trying to bring up and he cannot look at the plan and answer that it is conforming. He understands that the drawing shows it is 108’ but in New Hampshire an engineer cannot certify a distance like this. It is a land surveyor who must certify this. Blakeman is questioning the distance he is certifying and he is questioning whether or not that falls under the jurisdiction of engineering or land surveyor. The Board members are not asking for a new survey. They want a land surveyor to certify the distance from the property line to the leased area. Blakeman does not believe that an engineer can certify that a structure is meeting setbacks in the state of New Hampshire and went on to say he felt that this was a practice of surveying. It may be fine but wants clarification on this as well.
Thomas asked what the problem would be if in fact the property line is too close, what happens if the tower does fall on the property line as there are no houses on the abutting land. She felt that nothing would happen as there is nothing up there. The point of the regulations is not to make every ones life more difficult it is for public safety and she felt there was no public safety issue by adding 10’ to an existing tower in the middle of nowhere.
Burnham interjected that other than the fact that the Board could possibly and potentionally be setting a president of the non-conformancy extension of an existing non-conformancy. Thomas stated that if they had to get a zoning variance to put the tower up there then the next non-conforming tower is going to have to get a zoning variance to be put somewhere. She feels it is not up to the Planning Board to decide if the previous zoning variance is valid or not. If the Board unknowingly increases the non-conformity of an already non-conforming thing she feels the Board is not setting any precedent because the next non-conforming thing is still going to have to go and get a zoning variance. Burnham interjected that he felt that they way Blakeman, read the paragraph from the zoning ordinance it states
if you are extending the non-conforming which this is. Thomas stated that the Board does not know if this is non-conforming or not. Blakeman stated that this is correct and this is the point that he is trying to make. The Board does not know if this is non-conforming or not. Thomas once again stated that the next non-conforming thing will have to get its own set of rules and get a variance and if the Board inadvertently allows a 10’ extension on a non-conforming that already has gotten a variance the Board is not setting any precedent for any future non-conforming towers. Burnham stated that the Planning Board does set precedents not the Zoning Board. Wright went on to say that the Board could make a condition on the approval that the certification is done. Parisi went on to say that one of the issues for Omnipoint/T-Mobile is timing. He is not trying to avoid any issues but is trying to expedite this process. If the Board
wanted to approve the application with conditions that would be fine with him. They still need to get a building permit and a condition of the Site Plan Review could be that they confirm that they are not creating a non-conforming situation, as he believes they are not, could be an appropriate condition. He felt that he had provided the Board with evidence that they are not. If the Board is not satisfied with that he feels that it would be appropriate to ask them to prove it in connection with the building permit application. Blakeman did not have a disagreement with this statement and felt that this would be fine he just wanted to bring it to everyone’s attention. He also inquired as to whether this was a new lease agreement or is there an existing lease agreement. Parisi stated that Omnipoint/T-Mobile has signed a new lease agreement.
Forsham felt that the older lattice tower was put in and pre-dated the zoning ordinances for cell towers. But felt that the property file could answer the non-conforming lot issue. She questioned when the construction would be done due to the access road having to be reconstructed in the past due to weather conditions. Parisi stated that he hoped that construction would be done as quickly as possible, hopefully in early Spring but would be willing to take into account the stress factors on the access road so that there would be minimal to no damage done to it. Forsham also had concern for the crossing over of property of two property owners. Parisi once again stated that he would be willing to work with abutters on this issue as it is a private road.
Blakeman read into the record a memo the Land Use Coordinator received from David Brazier, 164 Summit Road, North Sutton. His concerns are as follows:
1. Enough visual pollution on top of King Ridge with the existing two towers rising considerably above the tree line. Do not need an additional 20’ of visual pollution.
2. The proposal states that there is little or no impact on current vistas. This is not true. The current towers are visible from many areas in Sutton including the King Ridge subdivision, Kezar Lake and Wadleigh Beach, Hominy Pot Road, just to name a few. The additional tower height will certainly be visible from these and other locations.
3. The proposal states that the required maintenance vehicles can use the existing parking facilities. There are no existing parking facilities. The subdivision road is a private road maintained by the subdivision. The current maintenance trucks and trailers park on his property or on the private road in front of his property. He objects to both of these scenarios. In addition, if they are parked on the road when the snow plow is working it makes snow removal impossible in the area they are parked.
4. If his memory is correct, it was stated during the discussion of the last tower addition that the tower would only project 20’ above the tree line. It obviously projects higher than 20’ from many current vantage points and the proposal to add an additional 19’-20’ is unacceptable.
5. Many residents enjoy the Town’s scenic views and the Town does not need to further degrade our majestic views with additional antennas rising another 20’ on the existing ugly towers.
Blakeman wanted to make one point of clarification. No projection will exceed 100’. He asked for comments on the parking from the attendees. Burnham inquired as to the initial agreement and what was stated in it in regards to conditions to the access. It was clarified that what Brazier is referring to is that trucks are parking on his property or on the private road in front of his property.
Ed Schiavo, Summit Road, confirmed that vehicles are parking in Brazier’s driveway and on the road in front of Brazier’s driveway. He also went on to say that Brazier has had times where he has had to wait to talk to the driver(s) in order to use his driveway. Burnham interjected that he felt that this issue was not within the Planning Board’s purview as it was a private road.
Nick Signore, Summit Road, was also concerned about the ware and tear on the road. He and Parisi had spoken before the hearing and he felt that this could be worked out. He also went on to say that the vehicles are parked at least ½ mile walk from the access road to the site and if you wanted to talk with the worker(s) you had to either walk to them or wait for them to come back to their vehicle.
Peter Rucci, Summit Road, confirmed that the maintenance issue of the private road is a concern for all who live there. He also stated that the vehicles are not cars but are trucks and they do more damage.
Forsham agreed that this is a concern but when the original approval was done there were different entities and that there was really no foresight for this problem.
Parisi stated that when he spoke with Signore earlier, he thought there was an easement that Northland retained when they subdivided the property across the land in question. Northland has assigned rights to Crown Castle, the tower owner, who has assigned rights to the various tenants including Omnipoint/T-Mobile. He thinks that the abutters have an issue with Northland who is getting the revenue from this site and Crown Castle the primary tenant. Parisi felt that this issue is between the Lessor and owners of the private road not between the Lessee and the Planning Board. But, he was willing to work with the abutters to get the information they needed.
Forsham thought that this was done with Northland but that the paperwork should be on file. She went on to say that she thought is was DiPadova who entered into the agreement with Bell Atlantic.
Burnham asked if anyone had factual evidence proving this easement. Forsham stated that access was needed to get into the files and the deed could be read as well as the older Planning Board files. Blakeman asked if there were any conditions on this easement. Signore stated that there was never any agreement between Northland and the Association to pay for maintenance of the road. What is being proposed now is that they get together and make a “gentlemen’s agreement so that all parties can be good neighbors”. Wright and Blakeman thought this was a good idea. Wright stated that, as a Selectman, there may be some requirements in the enforcement provisions. If the discussion is in regards to the private road, because it is a private road that is exactly what it
means. It is private. As this is involving utility he felt he was not qualified to comment on this.
Blakeman asked if anyone in attendance new if there were two separate easements. Is there one easement for the access road from the end of Summit road up to the towers? Is there another easement access agreement along Summit Road itself or is it all encompassing. As no one really had an answer this was referred for further investigation.
Parisi went on to say that he felt that this was a private matter between the tower owner and the abutting land owners. As he stated before he spoke with Signore before the hearing and he will get him in touch with the correct people at Crown. Parisi has worked with them in other instances such as this and felt that they were very good about these types of situations and they realize that they are making money leasing to Omnipoint and what goes with that is the burden of maintaining access, etc. He has the original deed on file from Northland to the Town of Sutton that reserves the rights to the tower. There are also references to the original deal with DiPadova and he will give the Association all the deed references. He will work with the Association to provide the information needed but
feels that it is outside the scope of the Planning Board. All the information is public record and will provide what he has and help them get what they need.
Wright interjected that they could not make a condition but a recommendation for this. Blakeman questioned the right-of-way over Summit Road itself. He wants to know what the limit of people that this can be leased out to as far as using the private road and is it typically accounted for in a right-of-way or is it an open ended agreement. Parisi believed that DiPadova reserved a right of access and it was undefined. He believes that he is the one who leased the original telecommunications tower so he was reserving rights of access to the telecommunications tower with what ever that involved.
Blakeman would be much more comfortable getting some counsel from the Town Attorney as far as the access and whether the Planning Board needs to look at, in this process with this application, whether there needs to be limits discussed, set or what have you or if there is a limit already. Whether that is an issue the Planning Board can address or cannot address as he feels that the use of this road off of Summit Road concerns him if there is no area for vehicle parking now and they are utilizing the surrounding property he has a problem adding to this issue without some type of agreement in place. Burnham stated that if it is not a part of the agreed upon access way then they are using private property. Blakeman understood that the applicant is looking to add 3 antennas on an existing tower but would
like to make sure all factors are looked at. Parisi is concerned that this may not be within the Planning Board’s purview as this is a private matter. If Crown Castle, Northland or the applicant are exceeding the scope of the easement it should be between the underlying land owners and the people using it. He does not believe it affects this Board as they are simply adding to an existing tower per our existing tower regulations. Omnipoint has a signed lease with Crown Castle for the use of the existing tower. Blakeman was in disagreement as one of the issues the Board has to look at is access in the site plan review process. If there is a problem with the parking with the access then he feels that the Planning Board cannot add to this problem. He does not mind making sure that the Planning Board is on solid and firm ground and that the Planning Board is not adding to an existing problem. Parisi once again reiterated that the
access is over private property and the scope of the easement does allow people to park along Summit Road. But this is between the easement holder and the land owners. Blakeman understands his position but is not comfortable unless the Town Attorney agrees with that position. Burnham interjected at this time that they cannot expand the usage at the tower without the Planning Board having any concern or any fallout with regards in okaying that expansion because of this access. Blakeman stated that he as two concerns. 1) the access; and 2) the concern as far as the tower itself and whether it is an existing non-conforming structure and if so then what implications does that have as far as adding more antennas. Does it mean simply that they would have to stop at the height of the tallest antenna? Which could be the end result. But, this is something he feels the Board needs to understand. Parisi stated that with respect to
the non-conforming structure, if the tower is non-conforming, the building inspector has the authority to say a non-conforming is not material and therefore, issue a building permit or he can require them to get a dimensional variance from the Zoning Board. Blakeman agreed with him but added that the Planning Board has to approve the plans. Mr. Parisi also understood but as discussed earlier he feels that it would be appropriate to confirm the setback for the benefit of the building inspector and if it does not comply then it is actually a zoning board matter because they would then need to obtain a determination but this is not a Planning Board matter. Blakeman asked Parisi how the Planning Board can sit and approve a site plan if there is a zoning issue. He feels that it should go to zoning first. Thomas stated that the Board does not know if there is a zoning issue. Blakeman agreed and Parisi stated that there is no zoning issue as the
engineer stamped the forms. Once again he stated that there was a timing issue. This is a lengthy process and as the by-laws state they did use an existing tower and to not exceed 100’. Burnham interrupted and inquired from Wright if the Board could do a conditional on this on the verification of the distance from the property line and the verification through counsel that if it goes through town counsel that the access way is not anything within the Board’s purview even though this is being expanded on. Wright stated that they could but it would need to be phrased differently. He believes that there is precedent. There were two previous cases where the subject shall be approved by town counsel. Wright went on to reference the New Hampshire Planning and Land Use Regulation book, 2007-2008 Edition, Pages 26-28, Chapter 12-K, “Deployment of Personal Wireless Service Facilities”; Section 12-K:3 – Wireless
Carriers Doing Business in this State. Item I. “Be allowed to construct new ground-mounted PWSFs, provided that these PWSFs comply with municipal regulations for maximum height or maximum allowed height above the average tree canopy height, subject to any exceptions, waivers, or variances allowed or granted by the municipality”. Section 12-K:5 – Fall Zones. “Zoning ordinances may include provisions for fall zones for PWSFs to the extent necessary to protect public safety”. He feels that all of the conditions must be met and that is why he felt you could “subject to 1. wording be approved by Town Attorney and; 2. the tower height set-back is sufficient to assure public safety”. He reinforced that the Town’s regulations are to be followed.
Forsham stated that she felt that the Planning Board is also partially responsible to ensure the health, happiness and safety for the Town’s citizens even if people live on a private road. She also went on to say that the abutters concerns are a legitimate concern.
Burnham reiterated that there is a pre-existing agreement for the easement. His proposal is that as a condition it is reviewed by Town Counsel. If Town Counsel agrees then he feels there is no problem. If there is a problem, he felt that Town Counsel would be able to give suggestions as to what legal rights the Planning Board has in this situation.
Blakeman prefers to ask question first, get the okay and then do the approval for this application. He referred to Article VII of the Subdivision/Site-Plan Review Regulations. This article lists certain criteria for a site-plan review. Such as, off street parking and loading; traffic circulation and access, etc. The question has been brought before the Board and members of the Board feel that it should be clarified before an approval is given for this application.
Signore asked Parisi what the capacity of the tower is at this time. Parisi felt he could not answer this question as there are many customers that can utilize the tower at this time. However, there is a structural limit to the tower but Omnipoint is within that structural limit.
Question was raised by Forsham in regards to adding more “coolant” to this. Parisi stated that they do not use “air conditioning boxes” but use a weather proof cabinet that is cooled by the air. It has a small “computer like” fan in it and works somewhat like a refrigerator.
Blakeman chair asked what the noise level would be with this additional shelter. In the application it states 40 decibels at a distance of 40’. He asked if this was for this one cabinet or are the other cabinets included in this as well. Parisi stated that this would be for the Omnipoint cabinet only. This was not really a concern as there are no homes, etc. near the site.
Signore inquired as to the scope of the work to be done and what the time frame would be. Parisi stated that once all the applications/permits are approved the construction process should only take 2 weeks or less.
Parisi stated that the Town of Sutton’s by-laws encourages the use of existing structures, which they are trying to do. If they cannot, they will be forced to build something new which is not what the by-law and the town wants. There are extensive kinds of telecommunication applications but one of the things that the Federal Government prohibits towns from doing is discriminating against different telecommunication companies, technologies, different carriers, etc. The reason for this is the government is trying to promote telecommunications to increase competition to bring costs down and they do not want towns to be an impediment to this. The other proabition the Federal Government imposes is that Town can’t say “no”, “we have enough”. There are valid
concerns that were brought up tonight but the town cannot have an affective proabition. Impediments need to be worked through.
Blakeman stressed that the Planning Board was not going to discriminate against Omnipoint. There are several concerns that need to be worked through before the application is approved. As there is a concern around the access and the Board has some local control regarding the access in our zoning, he prefers to go to Town Counsel for input before the application is approved.
Wright stated there are parameters for restriction but the Board does not have parameters for deletion. That is why there is a restriction within accepted parameters. The Board will conform with the Federal requirements. The Board’s intent is to find out if and what responsibilities to private abutters and private roads and if so what is it. The Boards responsibility is to “do no harm” and then proceed. He went on to say that there is a time-line on this application which the Board is well within and also there are only 4 members out of 7 at this hearing.
Due to past history of the Planning Boards use of conditions, members felt that to avoid this problem they would like to go to Town Counsel before the conditions are made so that unreasonable conditions are not put on this application. This would make for a “cleaner” application process for all involved.
The 3 things that are in questions are:
1. Verify that the rights of access are clear through and along summit road.
2. Verify adequate parking at the end of the access road and is it within the Planning Board’s purview.
3. Verify the “Fall Zone”. Is this an existing non-conforming structure and what the implications it may have if it is a non-conforming structure?
The continued hearing for this application will be carried over to February 10, 2009 at 7:00 p.m.
Carrie Thomas made a motion to close the public hearing. Robert Wright, Jr., seconded.
Meeting adjourned at 9:00 p.m.
Respectfully submitted,
Linda D. Ford
Land Use Coordinator
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