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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant: New Cingular Wireless PCS, LLC
by and through its Manager, AT&T Mobility Corporation
550 Cochituate Road, Stes. 13 & 14
Property Owner: First Baptist Church of Hingham
Premises: 3 Elm Street
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds Book 1461, Page 405
Plan Reference: "MA2702 Downtown Hingham," prepared by SAI/Hudson Design Group, LLC, 1600 Osgood Street, N. Andover, MA revised through 02/05/14 all stamped by Daniel P. Hamm, RPE, unless noted, entitled as follows: T-1 Title Sheet, Existing Condition Plans (unstamped), C-3 Site Plan, Z-1 Equipment Plan, Z-2 Elevation and Z-3 Details.
SUMMARY OF PROCEEDINGS:
This matter came before the Zoning Board of Appeals on the application of New Cingular Wireless PCS, LLC (lessee – the “Applicant”), 550 Cochituate Road, Framingham, MA for a Variance from §IV-A of the Zoning By-Law and such other relief as necessary to install an emergency power generator within the required side yard setback to support an existing telecommunications services facility within the First Baptist Church of Hingham located at 3 Elm Street, in Residence A.
A public hearing was duly noticed and held on Wednesday, March 19, 2014, at the Town Hall before a panel consisting of regular members Joseph W. Freeman, Chairman, W. Tod McGrath and Joseph M. Fisher. The Applicant was represented by Edward D. Pare, Jr., Esq. and Dan Bilezikian, SAI Communications, Inc..
The First Baptist Church is located on the subject property, within which the Applicant operates an existing wireless communications services facility. The Applicant proposes to install a 50 kW, natural gas fueled generator on the site as an emergency backup power source. The proposed generator would be located approximately 6' from the westerly side lot line, where 15' is required in Residence District A. The generator would be enclosed by a 6' high solid wood fence (10.5' x 13.5'). The Applicant informed the Board that the Historic Districts Commission had reviewed and approved the project.
The Town of Hingham Zoning By-Law provides in §V-E, 4 that wireless communications facilities are allowed in the Residential zoning district provided that the proposed facilities are enclosed within a non-residential structure. The Board granted a special permit to Nextel Communications to locate within the steeple at 3 Elm Street in January 2006. Since the AT&T equipment will replace the Nextel's antennas, no additional relief is required for the wireless communications services facility itself. AT&T requested relief for the proposed location of the emergency backup generator only.
Attorney Pare explained that the facility became fully operational on March 13, 2014. The Applicant then submitted calculated propagation maps to demonstrate the existing coverage provided by the facility within the "2702" sector, as well as the impact on network coverage in the area in the event of a power outage.
Attorney Pare noted that the courts found in both Nextel Communications of the Mid-Atlantic v. Wayland and Sprint Spectrum L.P. v. Town of Swansea that towns have the authority to grant variances to avoid violating the Telecommunications Act of 1996 if denial of relief would have the effect of prohibiting wireless services. AT&T has an existing facility at 3 Elm Street that provides service in the downtown area. Attorney Pare stated that the proposed emergency backup power generator location on the property is the only feasible way to provide adequate coverage during power outages.
The Chair opened the hearing for public comment. A resident asked about noise from the generator and its maintenance schedule. Attorney Pare noted that New Cingular had filed a sound study with its application. The generator would be sunken into the ground to minimize noise impacts. Maintenance would occur once per week and last approximately thirty minutes, which could be conducted during normal business hours. Another resident asked whether the Town would see more installations of PWSFs from AT&T. Attorney Pare said that the Town could expect to see more installations because the carrier has a goal of providing in-building coverage throughout the community. Another resident asked how AT&T could locate its equipment in the steeple without first attaining a Special Permit from the Board. The Board and staff explained that Nextel had received a special permit in 2006 to locate a PWSF at 3 Elm Street, which was specific not to the user, but the use. AT&T was merely replacing the Nextel equipment with its own. The resident then expressed support for the variance to locate the emergency backup generator on site. No one appeared or wrote to the Board in opposition to the application.
FINDINGS AND DECISION:
The Board voted unanimously to GRANT the requested Variance from §IV-A of the Zoning By-Law to install an emergency power generator no further than 6' 2" to the northerly side property line to support an existing telecommunications services at 3 Elm Street. In granting the requested relief, the Board found that:
- The First Baptist Church of Hingham is located on the lot in such a way that precludes installation of the backup generator to the Elm Street side or rear of the building. Location to the front of the Church would significantly alter the historic character of the building and streetscape. AT&T must also provide continuous coverage and without the emergency backup generator, there could result a gap in coverage in the downtown area during power outages. Accordingly, circumstances related to the shape of the property and location of the building upon it, as well as the carrier's need to provide continuous coverage during emergencies, especially affect the Premises and not generally the zoning district in which it is located.
- Literal enforcement of the Zoning by-Law would have the effect of prohibiting wireless services during power outages, which would involve substantial hardship.
- Desirable relief may be granted without substantial detriment to the public good. The proposed emergency backup power generator compound will be fully screened from view by a white wooden fence. The fence will also help minimize noise produced by the generator.
- The requested Variance may be granted without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law. The emergency backup generator is necessary to support the existing wireless communication services facility, located within the church steeple in accordance with a Special Permit dated January 18, 2006, during power outages. Installation of the generator within the side yard setback will not result in any negative impacts, visual or otherwise.
The Variance is granted subject the following conditions:
- That all work be performed in substantial accordance with the representations made at the public hearing and the plans submitted with the application as referenced.
- Routine testing of the emergency backup power generator will occur between the hours of 7am and 9pm.
- The relief granted by this Variance is limited to the wireless communication services facility use; no other use can operate the generator in this location.
The zoning relief granted herein shall not become effective until (i) the Town Clerk has certified on a copy of this Decision that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that such an appeal has been filed within such time, and that (ii) a copy of the decision so certified has been duly recorded in the Plymouth County Registry of Deeds and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner’s certificate of title.
For the Zoning Board of Appeals
Joseph W. Freeman, Chair
April 4, 2014