TOWN OF HINESBURG

DEVELOPMENT REVIEW BOARD MINUTES

February 19, 2008

Approved March 4, 2008

DRB Members Present:  Tom McGlenn, Ted Bloomhardt, Lisa Godfrey, Dick Jordan, Dennis Place, Zoë Wainer, Greg Waples.

DRB Members Absent:  George Munson.

Also Present:  Alex Weinhagen (Director of Zoning and Planning), Peter Erb (Zoning Administrator), Karen Cornish (Recording Secretary), Brian Hanlon, Sheri Hanlon, Will Dodge, Brian Frazier, George Mokarakorn, Tim Richmond, Richard Watts, Kim Hazelrigg. Mark Delaney, Allison Cleary, Elise Cleary, Rosie Watts, Anna Watts, Ed Sengle, Aidan Thomas, Cheryl Park, Jane Finn, Steve Finn, Landon Dennison, Denise Guttler, Signy Shumway, Sylvia Geiger.

The meeting began at approximately 7:35 p.m. 

Minutes of the February 5, 2008 Meeting:

Greg MOVED to approve the meeting minutes as amended.  Zoë SECONDED the motion, with Dick and Ted abstaining.  The motion PASSED 5–0.

Conditional Use Permit – Wireless Communications Facility – Leavensworth Road – Applicants: Sally and Clifford Brody, Brian and Sharon Hanlon, and RCC Atlantic, Inc. (aka Unicel)
** continued from the February 5^th meeting

Tom said the possibility of a separate subdivision permit had been discussed at the last meeting.  In a memo from Peter Erb, Zoning Administrator, he raised the question of whether the applicants needed a subdivision permit in addition to a conditional use permit; it was his interpretation that they did.  Peter said he had based the memo on regulation language that described leases as a kind of subdivision, but would take direction from the DRB as to whether an additional permit was necessary.  Greg thought the primary concern of the regulation was whether land was to be divided; he thought the language referring to leases was a subordinate clause which would not apply if a proposal did not involve a division of land.  He thought otherwise this clause would mean that any time a party wanted to lease land for some purpose a subdivision permit would be required, probably not what the Planning Commission intended when regulations were written.

Will Dodge, an attorney representing Unicel summarized the proposal.  He said a cellular facility would be installed on private land on Leavensworth Road for the purpose of improving GSM service to Hinesburg (GSM is one type of cellular technology).  The facility would be comprised of 12 antennas erected on a silo along with a 10 x 12 equipment shed.  He said he thought the previous meeting raised no aesthetic issues and he discussed measures taken to visually blend the antennas with the silo.  He thought the only issue was radio emissions.  He noted a project study done as a predictive scenario based on worst-case assumptions.  He said results showed emissions would reach under 20% of the MPE (maximum percentage of emission) allowed by the federal government.  He spoke about a congressional regulation that stated local zoning boards could not deny the placement of facilities they met federal emissions standards.

Will said Unicel was willing to do a post-installation field study in which an engineer would inspect the site using instruments designed to measure emission. Greg asked about the time frame for such a study.  Will said it could be prepared 30 – 60 days after the facility was installed; he said installation took about 6 weeks.  Will noted the subdivision issue, stating the applicants were not dividing land in a true sense.  He thought the rule seemed to apply to a type of division where two exclusive uses would result and therefore did not apply to their proposal.

Steve Finn, an area resident, said he was not concerned about emissions, rather he was concerned about property values and how the facility would change the character of the neighborhood.  He said residents moved there because of the rural nature of the neighborhood.  He thought there could be a more appropriate place for such a facility and said he understood the town had pursued an alternate location that was eventually determined to be inappropriate.  He thought cell towers would negatively affect property values and asked if another location on town-owned land could be investigated.  He said the town could then benefit from the revenue, rather than a private interest.

Denise Guttler, an area resident, said she reviewed the Federal Communications Act of 1996.  She then read aloud excerpts from (what she said was) the FCA document.  She said it was her understanding that when a community believed a proposal would have a negative impact, the applicant needed to provide evidence that alternative locations had been investigated.  She said she also understood the applicant needed to provide evidence of a substantial gap in service (a gap measured in distance and/or length in time of loss of coverage).  She asked whether alternate sites had been considered and if the community had been given that proof of investigation.

Will said he was not familiar with the language Denise cited and said he thought she was reading from an annotation to that statute (the TCA of 1996).  He said most communities in the Northeast adopt formal telecommunication regulations that would likely have that kind of language in it.  He said as Hinesburg has not adopted a telecom-specific ordinance, the application would be reviewed under whatever set of regulations the town has (or does not have) at the time.  Denise said she read from federal, not local, regulations.  Will said although he was not aware of any federal regulation that impose those requirements, the applicants have done those things anyway, just not in the context of a specific town regulation.

Steve Finn asked about evidence submitted at this hearing; Greg said anecdotal evidence was not binding.  Denise Guttler asked what “gap in service” meant; Brian Frazier, the RF engineer for the Northeast division of Unicel, said alternatives were discussed at the last meeting.  He explained Unicel operates on a GSM network, with the only other GSM provider being AT&T.  He said Verizon uses a different technology; T-Mobile and Nextel use yet another.  He said if an AT&T phone indicates coverage, it’s currently pulling its signal off a site on Mt Pritchard.  Another tower will become active in Charlotte soon.  He said due to topography, that new tower will not provide indoor coverage to certain regions in Hinesburg.  He said the silo location fills the gap between the Bissonette farm to the Route 2A/Route 116 intersection.  Brian said no other location was suitable for that range of coverage.  He said NRG had originally agreed to put up antennas on one of their windmills but then over a year’s time they changed their mind.  A tower was then proposed for the town treatment plant but that location, the cheese factory and other locations did not pan out.  Brian said the silo location provides optimal coverage.  Denise asked about the silo’s structural integrity.  She said she was familiar with the condition of the silo as her parents used to own the barn and it was her understanding that is was not stable for any use.  Brian said the silo’s condition was found to be adequate; Will referred to documentation (Tab F) that reported on the integrity of the structure.  He said the report was drafted by a state licensed engineer who took into account the weight of the antennas, mounting apparatus, cables, etc. and found the structure to be sound.

Richard Watts, an abutting homeowner, said he wished to raise two reasons why he thought the board should deny the application.  He quoted language from town subdivision bylaws, Section 4.2, sec. 2, that state a proposal shall not adversely affect the character of a neighborhood.  He thought any residential neighborhood was not an appropriate place to site a facility, nor was it in keeping with the character of the Leavensworth Road neighborhood in particular.  He gave information regarding a proposal submitted by Nextel in 2004/05 (permit issued Jan. 2005) that included a 100 foot mono pole without guide wires or lights, located near the town treatment plant.  He said that site had met Nextel’s technical needs and would have provided $1250/month revenue to the town of Hinesburg.  He thought the proposal had not been pursued by Nextel due to further negotiations which included requests by the town for more revenue and the ability to have other companies’ technologies share the site in the future.  Richard noted Unicel had said at the last meeting they preferred a co-location strategy to siting towers, whenever possible.  Richard thought this would lead to the silo site becoming the future preferred site for other companies, and the neighborhood the defacto location for others to locate there.  He then said property tax values would be an issue for homeowners in the area.  He said the applicant noted property sales would slow in the vicinity of these facilities, but that his own research indicated the values could decline by as much as 20%.

Lisa Godfrey asked Brian Frazier about the treatment facility site.  Brian said a tower placed there would result in shadowing (loss of coverage) in every area north of the town hall building, due to topography.  He said currently there is insufficient in-building coverage at the high school, along Shelburne Falls Road going west, up Route 116 going north towards 2A.  Different locations in the general area behind town hall (the “Cobble”) were discussed.  Brian said a tower 230 feet tall would be needed to get the proper line of sight.  He said Nextel uses completely different technology, that he can’t speak for their engineer nor does he know what their need of coverage was, only that it was different than theirs.  Allison Cleary, an abutting homeowner, said the silo is exactly 430 feet and noted it was exactly the same height as the tower proposed for Nextel. 

Sheri Hanlon addressed the future-use concern, stating they had one contract with Unicel and that the Hanlons and Brodys were not interested in negotiations with other companies.  An audience member asked how long the lease agreement would be in effect.  Sheri Hanlon said it would transfer with owners; Will said it was a 25-year lease.  Steve Finn asked about the financial terms; Will declined to answer.  Sheri said they were not interested in the site becoming a tower center.  She said they thought they did planning appropriately, that the facility was not a health hazard, and they would not entertain any other proposals.

Landon Dennison asked about putting a tower on the cobble.  It was noted that the cobble is an artificial land area formed when the LaPlatte was straightened.  Tom McGlenn said the landowner was not known and also that the state encouraged cell providers to use existing facilities, not to erect new ones.

Kim Hazelrigg, an area neighbor, asked the DRB to help alleviate the stress that was being put on the Leavensworth Road community.  She said she thought the site was inappropriate, that only one family in the neighborhood would gain financially and that other families may lose money.  She said although it was made clear that health concerns could not be argued during the proceedings, that a negative perception of health issues remained.

Brian Hanlon said his family considered all the factors including the aesthetics and frequencies but did not anticipate the negative reaction to the project.  He said he consulted with a doctor at Fletcher Allen and quoted a statement by the American Cancer Society which, in summary, said emissions were essentially low energy, similar to many other technologies already present in daily life (AM/FM radio, microwaves, etc.).

Greg noted the concern about depressed housing values and said he had not heard of any specific research.  He said although Will Dodge said he found no research to support a depression of home values (only a slowing of sales), Richard Watts cited research that found home values dropping as much as 20%.  Greg asked for clarification of the two positions.  Will said that the only research that has been documented has to do with towers, support structures that are created from the ground up, not existing structures.  He said in the case of towers, there is a very clear aesthetic impact that would not be associated with this project as a new tower is not being erected.  Allison Cleary said she made phone calls to realtors whose general opinion was that values were affected on a case-by-case basis.  She said she researched realtor websites, chat rooms and other realtor organizations and found the general consensus was that values declined an average of 20%.  She said in Vermont, concerns include not only aesthetics but also the perception of wholesomeness.  She said she followed up with a cancer oncologist who said the reason the issue is so controversial is that science is inconclusive.  She said what science has proven, however, is that emissions are classified as a possible carcinogen; she read from documentation passed out to Board.

Steve Finn said he thought the applicant’s attorney remained focused on the health effects of energy emissions because it put him in a no-lose situation.  Steve said health concerns were not his concern.  He asked the Board about their decision-making process, whether the concern for the character of the neighborhood would be considered.  Tom said the Board deferred to town subdivision regulations, to Section K which deals with appropriate use and lays out criteria for granting or denying a conditional use permit.

Jane Finn asked what surrounding communities have done, compared to what Hinesburg has done about cell tower issues.  Greg said our Planning Commission has not issued any specific regulations; he said the town of Charlotte attempted to restrict structures within a certain distance of residences but that regulation was recently struck down on the basis that it was preempted by federal law.  Richard Watts said the town of Charlotte is bringing the issue back up through the Town Plan process; Will thought the effort was merely “housekeeping”, to remove language from regulation documents.

Denise Guttler thought it was clear that health impacts could not be discussed. She thought the proposal would affect the character of the neighborhood and said neighbors were being unfairly asked to live in an environment unlike one they would have chosen for themselves.  She thought once permission was given for an emissions tower in a residential area, other companies would come in and control would be lost.  She thought alternative locations had not been explored enough.

Tom MOVED to close the public hearing and take the matter up in deliberative session.  Zoë SECONDED the motion.  The motion passed 7-0.  Tom explained that the board has 45 days to approve or deny the application.  Alex offered to keep people posted verbally, but also said people with an interest in the process would be sent a decision letter.

Dennis recused himself from the Board at this time (8:30 pm).

Final Plat Review – 2-lot Subdivision - CVU Road – Applicants: Andrew and Gail Riggs

Andrew and Gail Riggs discussed the final details of their project, assisted by Jack Milbank of Civil Engineering Associates.  Dick asked about an intermittent stream on the south side of the property and noted topographical lines indicated the stream went up and down a hill.  Jack explained how surveying for the map was done using two methods, resulting in the stream being displayed in that way.  He said the bike path and the stream have been located properly.  Peter asked if a condition could be written stating the building envelope had to be outside the stream setback; Jack said yes.  The group then reviewed comments from the staff report:

- #1.  Zoë asked which erosion control measures were to be used, those from the VT state handbook or a “Low Risk” handbook.  Jack explained the difference between the two handbooks and why the low risk version was referenced; he stated the project would adhere to whichever the Board required.

- #2.  Association language was discussed.  Jack explained the Riggs wanted to make sure there was no mandate to join any such association.

- #3.  Jack said the Riggs had hoped the town would pay for the creation of deed language as they would benefit from the easement.  The Board felt there was an assumption that the Riggs prepare the language.

- #4.  Applicants agreed to add the condition as described.

- #5.  Jack said a letter has been sent to Rocky Martin inviting him to make inspections before and/or after the line is tested.  He said Ernie Christianson, a state official, has approved wastewater plans.

- #6.  Applicants agreed to add the condition as described.

Greg MOVED to close the public hearing and direct staff to draft a decision (approval).  Zoë SECONDED the motion.  The motion PASSED 6-0.

Dennis re-joined the Board (8:50 pm).

Sketch Plan Review – 2-lot Subdivision – North Road – Applicants: Robert and Mary Reid

George Bedard spoke on behalf of the applicants.  He explained the sketch plan review process, after two previous extensions, is being started from scratch due to a change in the requested number of lots.  He said as this proposal was much simpler, they have requested a minor subdivision.  He reviewed a map and the proposal to divide the property into two lots, 4.35 acres and 5.8 acres.  He said Spencer Harris has been out on the land and found septic for two parcels.  He said the previous proposal was problematic due to the location of a ROW to the Tuckers and the need for contiguous 3-acre lots, but that issue no longer existed.  He pointed out access points off the Tucker ROW, the power location, power lines, (2) house sites, and a brook that ran near North Road.  He described topography, with land rising in steps of ledge coming west to east and terraces of ledge sloped downwards to the north.  He said access was easiest from the proposed location.  Setbacks to a stream and some Class II wetlands were discussed.  George said a road of about 14 feet wide is already built up, with a swale or ditch to follow.  He said grades are modest coming onto driveways.  Peter said Al Barber found no access issues.

George said they would request a tap into the existing Tucker electrical supply and if this wasn’t possible then a new line would have to be run from an existing power pole, possibly requiring a conditional use determination (a permit from the State) to cross the wetlands. Septic design would be conventional, with individual drilled wells.  George said he would show a typical ditch description and erosion control would be compliant with the state manual.  He will be talking with the State to know if the project triggers their regulation.  Greg asked if there was any problem with contingencies that had been stated in the previous application.  George said no, that there is now enough acreage on the sides of the ROW to avoid the earlier issue.  The Reid’s daughter said the Tuckers would not incur any costs or fees to enhance the roadway.  Lisa asked if the project warranted more significant stormwater treatment given its proximity to streams.  George said the state official would comment on that if they have those concerns.  He described stormwater runoff from the Tucker’s land, stating he thought very little water would find its way to the road.

Alex said town road standards require stone-lined ditches for roads with grades over 5%.  George spoke about visibility, that with hardwood trees, homes would be visible but clearing could be limited to around the structures.  Greg asked if envelopes would be 300 feet from North Road; George said yes.  Peter said homes sited near the road would be within the character of the neighbor.  The Tuckers asked if they were limited in the number of house that could be put on their land, due to access on the road.  Greg said the ROW deed would describe your rights.  Peter said the issue that existed with the last application was no longer true, that that depending on how many users, the DRB may ask that a road association be formed.  George explained the easement in common to provide access to land and utilities.  George said they would talk with the Tuckers if any issues arose.  Dick asked about wooded areas; George described the general landscape and pointed out areas that would be cleared.

Zoë MOVED to close the public hearing and direct staff to draft conditions of approval, as a minor subdivision.  Dennis SECONDED the motion.  The motion PASSED 7-0.

Other Business

Hoke/Quackenbush 6-month extension request:  Tom MOVED to grant a 6-month extension to the application.  Zoë SECONDED the motion.  The motion passed 7-0.

Bill Anthony deed:  Peter asked that the minutes reflect legal language that was approved by the ZA to satisfy conditions #5 and #6 of a prior decision.  The conditions involved access to a lot off Anthony Road.  Lisa MOVED to approve the legal language.  Tom SECONDED the motion.  The motion PASSED 7-0.

Bedard Mediation:  Alex said George, Bud Allen and himself met to decide if a compromise could be reached.  Alex relayed George’s comments to the Board as follows:  George said he required 8 units to make the project work financially, and that he would be happy to cluster in a more appropriate way.  He was interested to know what the DRB would think if another proposal with 8 units in a new configuration.  Alex said the parcel was approximately 54 acres and he briefly reviewed the prior subdivision history of the parcel.  Tom asked for an opinion from everyone.  Tom said he would consider an 8-lot proposal with no ability to further subdivide.  Alex said George has agreed that development of the parcel would be finished with 8 lots.  Dennis agreed with Tom.  Greg thought 8 lots were still too many considering the history of development on the parcel.  Lisa agreed with Greg.  Ted thought 8 lots could work as a PRD, keeping the land to the west open as part of the PRD with all lot owners having a deeded interest in keeping it open.  Zoë said she would consider an 8-lot PRD.  Dick was not present for prior hearings.  Tom noted traffic, wildlife, density, and character of the neighborhood as neighbor’s major concerns.

Tom MOVED to go into deliberative session; the motion passed 7-0.

Davis Camp conditional use permit:  Dennis MOVED to approve the decision as amended (approval).  Tom SECONDED the motion.  The motion PASSED 6-0, with Greg abstaining.

RCC Atlantic (Unicel):  No action was taken at this time.

The next DRB meeting is March 4.  The meeting adjourned at 10:15 p.m.

Respectfully Submitted:

Karen Cornish

Recording Secretary