In the end, it was all about communication. In its March 15 meeting the Londonderry Zoning Board continued a hearing on a variance to establish a wireless communications facility in the AR-1 zone, and to allow a setback of 204 feet where zoning requires 300. After two vocal public hearings and delving into the definition of a hardship, the board determined unanimously to deny the variance on the AR-1 zone, effectively killing the request for the second variance.
The property in question is 76 Chase Road, Tax Map 1 Lot 83, and is owned by Christopher Trakas. The applicant is American Tower Company.
The hearing was continued from the January 2017 meeting.
Board chair Neil Dunn said the hearing was continued in part so the applicant could address several issues, including performing a balloon test March 7 to measure visibility to abutters
Dunn also asked speakers in the public hearing not to be repetitive, noting, “This subject can bring up a lot of emotions and feelings.”
Will Dodge, an attorney for the applicant, said that the company had looked at commercial property first. “If you can’t find something you need to look at how to mitigate the effect as much as you can,” he said. “Any applicant should do what we’ve done.”
But residents had their doubts, and communicated them..
In the public comment section, Chase Road resident Bill Anker observed, “I am only one backyard away.”
Anker asked if the developers could shift the position of the tower, noting, “It doesn’t have to be that close to the property line. You could locate it more centrally, so it wouldn’t impact the south side.”
Dodge said it was reasonable to locate where they planned, because “We’re in the flood plain, no matter what. But we’re not in the flood way, and we’re avoiding the wetland buffers.”
Dodge further said that they couldn’t move the facility to any other area of the property. “If we go further west, we will violate the setback with residents,” he said.
Anker also noted that while Trakas has a farm on the property and keeps horses, he is not a full-time resident of Londonderry, and that mattered to Anker. “If my neighbor wanted to start a hog farm in agricultural-residential, I’d tell him, ‘Go for it,'” Anker told the board. “But this appears to be more of an income-generating proposition.”
Anker also worried about the effect of the tower on Beaver Brook, noting, “Every 10 years or so there’s a 100-year flood.”
Building Inspector and Code Enforcement Officer Richard Canuel clarified that although a portion of the facility would be in the flood plain, applicants are allowed to build if they used flood-proof construction.
Resident Jim Edwards was more succinct, saying, “I didn’t come here 30 years ago to look at a cell tower.”
Tom Wilworth of Chase Road said, “I’m no expert in zoning, but I looked up the criteria.” He questioned whether the spirit of the ordinance was observed. “Did they look at other properties?” he asked.
Dodge said the firm’s scouts had looked at seven properties, including churches, schools and other private landowners. They also looked for opportunities to co-locate on an existing tower, but did not find one that suited their needs
“I understand folks are concerned,” he said. “The hardship here is measured in trying to fix a significant gap in your coverage.”
Wilworth also noted that he could see the balloon test from his daughter’s bus stop.
The attorney said there is some visibility from Chase Road, but that most of it would be “blunted” by the trees. “This can’t be invisible,” he said. “It’s the nature of towers.” But he added that the applicant and Trakas plan to keep all the current trees.
“I could see that balloon from my front yard and my back yard,” resident Susan Anker said. “It’s not what I came to New Hampshire for 24 years ago.”
Wilworth and other residents worried that their property values would diminish. “I moved in here five or six years ago,” he said. “If I’d seen a cell tower looming, I would not have bought my house.”
Wilworth noted that Trakas’s primary residence is in Newton, Mass. and asked, “Are there any cell towers looming over his house?”
Resident Pete Brunelle asked about emergency generators, which may release hazardous chemicals into the environment. Dodge said American Tower doesn’t plan to install a generator, noting that the technology used doesn’t require one. “A co-locator may put one in in the future,” he said.
He also said that American Tower uses gel batteries, which do not release chemicals into the land or water.
Canuel said that each new generator would require a permit, but that these do not go through the board but are reviewed at the saff level by him, Public Works engineer John Trottier, and Planner Colleen Mailloux.
Consultant Andrew Lemay spoke to the property value issue, noting that he had prepared a report. In another Londonderry development, Hickory Woods, a cell tower existed before the homes were built. He was told anecdotally by a manager that two out of 10 potential buyers objected.
“This is the sales manager’s opinion,” board member Jacqueline Benard responded. “It’s not not useful, but it’s not definitive.”
The board received testimony from other residents, including a retired Marine and a pregnant woman, before dropping back to its deliberative session.
Board deliberations
In the board deliberations, Benard observed that in the seven inquiries about sites, Trakas was the only landowner or entity who responded to American Tower’s proposal. “In the applicant’s own words, this was not their preferred location, but it was in the acceptable range for their search area. I do not construe this as a ‘hardship.'”
Granting the variance would be contrary to the public interest, Benard observed, due to the testimony that night and in January. “There was an outcry,” she said, from both seniors banking on their homes for retirement and young parents worried about chemicals and other safety issues.
“The testimony,” she said, “validates what happens in the real world.”
Members noted that in the January meeting, Council Chair John Farrell had told the applicants that some town land was available for a possible tower, and that Farrell encouraged them to contact the town. This was not done, and “They didn’t do their due diligence,” Neil Dunn said.
Would the spirit of the ordinance be observed by granting the variance? Member Allison Deptula said no. “The whole purpose of an agricultural-residential district is to preserve the rural character,” she said. “This would alter the essential character.”
“Their argument is that it would have very little impact on aesthetics,” Dunn said, adding, “I do not agree.”
Would “substantial justice” be done with the granting of the variance? Dunn thought not, pointing out, “It was not their first choice.”
“I don’t feel the loss to the owner outweighs the public interest,” Deptula said.
On the question of the values of the surrounding property being diminished, Dunn said, “We as the residents of the town have a better feel for what impacts our neighbors.”
There were no unique features to the property itself that would make denying the variance an “unnecessary hardship,” they agreed.
The board voted unanimously to deny the variances, and told American Tower they have 30 days to appeal the decision.