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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant: T-Mobile Northeast LLC
c/o Tower Resource Management
30 Lyman Street
Westborough, MA
Property Owner: LMB Realty Trust
Lisa Jacobson, Trustee
Premises: 100 Sharp Street
Hingham, MA 02043
Title Reference: Plymouth County Registry of Deeds
Land Court Certificate of Title No. 92841, Book 464, Page 41
SUMMARY OF PROCEEDINGS:
This
matter came before the Board of Appeals on the application of T-Mobile
Northeast LLC (the “Applicant”), c/o Tower Resource Management, 30 Lyman
Street, Westborough, MA for a Variance from §V-E 7 (d) along with a
Special Permit A2 under §V-E with Site Plan Review to be done by the
Planning Board under §I-G and §I-I of the Zoning By-Law and such other
relief as necessary to construct a 160' wireless telecommunications
facility consisting of a monopole within a 40' x 40' fenced in compound
on a portion of the land at 100 Sharp Street (the “Property”), in the
Industrial Park District.
Public Hearings were duly noticed and
held before the Board of Appeals at the Hingham Town Hall commencing on
October 4, 2010 and continuing on November 18, 2010 before a panel
consisting of regular members Joseph W. Freeman, Chairman, W. Tod
McGrath and Joseph M. Fisher. Site Plan Review was conducted by the
Planning Board at the joint public hearing on November 18, 2010.
Planning Board members present were Judy Sneath, Paul Healey, Susan
Murphy and Sarah Corey. Attorney Francis D. Parisi of Parisi Law
Associates, P.C, and Michael P. Johnson, Site Acquisition Specialist
with Tower Resource Management represented the Applicant.
In
accordance with the provisions of the Zoning By-Law the Board of Appeals
requested an independent review of the Applicant’s proposal and related
technical data. The Board obtained an independent review from David
Maxson, a Municipal Wireless Consultant and CEO of Isotrope, LLC, 505
Main Street, Medfield, MA 02052. Mr. Maxson has managed, leased, and
built towers and holds a Massachusetts Contractor’s License. Isotrope,
LLC (formerly Broadcast Signal Lab, LLP) provides wireless technology
consulting services to municipalities considering wireless facility
applications.
BACKGROUND:
The Property consists of
approximately 2.7 acres of land and is currently the site of an existing
warehouse/storage building. T-Mobile is proposing to lease 1,600sq.ft.
of land at the rear of the Property and construct a 40’ x 40’ compound
that will be secured by a 6’ chain link fence with barbed wire. Inside
the compound will be a wireless telecommunications facility consisting
of a 160’ monopole tower with external antennas, amplifiers, coaxial
cables, radio cabinet, power and telephone panels and a concrete
equipment pad. Mounted to the monopole at a height of approximately 157’
(centerline) will be 9 panel antennas. Access to the compound is
planned via a 10’ access easement gravel driveway along the east side of
the existing building. The facility is unmanned and once it becomes
fully operational normal and routine maintenance will be performed by
technicians on a monthly basis. Therefore estimated vehicle trip
generation rate is 2 trips per month.
DISCUSSION:
During the
initial hearing the Applicant stated that within the past year they had
filed an application with the Weymouth Board of Zoning Appeals for a
wireless telecommunications facility approximately ½ mile from this
Property on Liberty Street in Weymouth. After numerous public hearings
in Weymouth, which included testimony by the Applicant’s experts, peer
review and testimony from abutters, the Weymouth Board of Zoning Appeals
denied the application. Subsequently, the Applicant identified this
Property in Hingham as a suitable alternative.
During the course
of the initial hearing it was determined that the Applicant also needed
relief in the form of a Variance from §V-E 7 (d) of the Zoning By-Law,
which states “A Tower shall not be erected nearer to any property line
than a distance equal to the vertical height of the Tower (inclusive of
any appurtenant device), measured at the mean finished grade of the
Tower base.” A Variance was subsequently applied for and advertised to
be heard concurrently with the Special Permit A2. The Applicant
submitted revised plans dated November 5, 2010 which showed that the
monopole cannot be placed on the Property in compliance with the setback
criteria and without encroaching on the wetlands or riverfront on the
Property.
The Applicant’s experts gave testimony concerning its
need to enhance service coverage in this area of Hingham and surrounding
communities, as depicted on the coverage maps presented by the
Applicant. The Board and the Applicant agreed that a review of the
impact of the height of the proposed tower should be conducted in
accordance with Section V-E, 7 of the Zoning By-Law. A crane test was
duly noticed and held on October 23, 2010. All members of the Board,
along with Board’s independent reviewer Mr. Maxson, viewed the crane
test on-site.
The Applicant represented that all of its proposed
wireless communications equipment would be installed, erected,
maintained and operated in compliance with all applicable Federal, State
and local regulations. The Board accepted the Applicant’s
representation that it has a FCC license to operate a digital personal
communications service wireless network and that it provides wireless
service to customers through a network of antennae mounted on towers or
other structures, referred to as wireless facilities, that broadcast
signals between towers and to customers’ wireless phones and devices.
The
Board required the Applicant to demonstrate whether a significant gap
in coverage exists within its network. In assessing whether the coverage
gap is significant, the Board considered the physical size of the gap,
the area in which there is a gap, and the number of users the gap
affects. The Board examined data about percentages of unsuccessful calls
or inadequate service during calls in the gap area. During the hearings
the Applicant demonstrated that its need for coverage around the
proposed site is significant.
The Applicant and the Town’s
consultants also evaluated the possibility of a DAS as an alternative to
the proposed tower with particular attention to whether a DAS would
provide telecommunication service as adequately as the Applicant’s
proposed facility. After review the Town’s consultant concluded that DAS
networks are typically employed in densely populated or densely
utilized areas and while a DAS may be a viable option in the future, and
perhaps particularly for smaller “gaps” in signal coverage area, the
current capabilities and limitations of DAS did not qualify DAS as
reasonable alternative to the Applicant’s proposal. The Town’s
consultant, as well as the Applicant’s expert, recognized that in
certain settings a DAS might be an acceptable alternative, and that with
continuing evolution and improvements in the DAS equipment, the DAS may
be suitable for future use in any remaining areas of “gaps” in signal
coverage.
The Town’s consultant reviewed the Applicant’s various
maps, based upon computer models, which illustrate the estimated
improvement in signal strength coverage, and the elimination of “gaps”,
at alternative locations and various antennae heights of 100’, 120’, and
160’. Using the Zoning By-Laws 100’ cap, it would be anticipated that
two carriers (at 90’ and 100’), or perhaps even a third (at 80’) could
occupy the monopole. Below that, tree height might become an issue.
Increasing above 100’, each additional ten feet could benefit a
co-locator, therefore a monopole at 160’ could utilize up to seven
wireless carriers which reduces the need for additional wireless
facilities. The Town’s consultant acknowledged that the information
submitted by the Applicant confirmed that there is a realistic need for
additional wireless communications facilities in order to remedy the
“gaps” in coverage.
During the course of the hearings no
abutters spoke either for or against the application, nor did the Board
receive any written correspondence in opposition to the application.
The
Planning Board members reviewed the project’s compliance with the Site
Plan Criteria as defined in §I-I (6) of the Zoning By-Law and voted to
approve the Site Plan as presented, subject to the Board of Appeals
approval of the requested relief. The Hingham Planning Board Site Plan
Review dated November 29, 2010 is included in this decision as Exhibit
A.
FINDINGS:
At the conclusion of the public hearing the
Board of Appeals first considered whether the Applicant qualified for a
Variance pursuant to M.G.L. c. 40A, §10. The Board observed: “The burden
rests upon the person seeking a Variance…to produce evidence at the
hearing…that the statutory prerequisites have been met and that the
Variance is justified.” DiGiovanni v. Board of Appeals of Rockport, 19
Mass. App. Ct. 339, 350 (1985). The Board considered the statutory
prerequisite of “substantial hardship” and found no evidence to suggest
that the current uses of the premises were “economically unfeasible.”
The property could reasonably be used in the manner currently allowed by
the Town zoning requirements. Thus, literal enforcement of the Zoning
By-Law would not create substantial hardship under applicable state law
standards. See, e.g. Brackett v. Board of Appeal of Boston, 311 Mass.
52, 60 (1942).
The Board then considered its responsibility to
issue a Variance where necessary to avoid an effective prohibition of
wireless services pursuant to the federal law requirements of the TCA.
See Omnipoint Holdings, Inc. v. city of Cranston, 586 F.3d 38 (1st Cir.
2009), holding that the TCA promotes “the elimination of significant
gaps” and pointing out the “limits on town zoning boards’ ability to
insist that carriers keep searching [for alternative sites].” The Board
determined that to deny the Applicants its requested Variance would
constitute an “effective prohibition” because the Applicant had
demonstrated a significant gap in coverage and the site at issue in this
case represented the only feasible plan to close the gap in coverage.
Therefore, based upon all of the information presented the Board of Appeals makes the following findings:
1.
Due to the inadequacies of existing signal strength coverage and
“gaps”, especially along Sharp Street, Abington Street, Liberty Street
and the surrounding area, there is a real and legitimate need for an
additional telecommunication facility at or near the area as proposed by
the Applicant;
2. A DAS would not provide a reasonable alternative method of providing signal coverage;
3.
The Applicant’s proposed telecommunications systems is consistent with
the standards for the issuance of a Special Permit A2 and Variance under
the Zoning By-Law provisions for telecommunications facilities, and the
proposed site is appropriate for the facility; and
4. The needs of
the Applicant as well as the Town’s public safety equipment can be
adequately met by a pole with a height of 160’. Accordingly, the Board
of Appeals grants a waiver from the 100’ height limitation.
RULINGS AND DECISION:
At
the conclusion of the public hearing the Board of Appeals voted to
GRANT the Special Permit A2 and Variance for the use of this location as
the site of a wireless communications facility subject to the following
conditions:
1. The Wireless Communications Facility (a
monopole) is to be constructed in substantial accordance with the plans
presented (prepared by T-Mobile Northeast, LLC, 15 Commerce Way, Norton,
MA, and Aerial Spectrum, Inc., 20 Blanchard Road, Burlington, MA
revised through November 5, 2010 stamped by Eamon T. Kiernan, Civil RPE
and Kevin Blake, PLS) and the representations made at the public
hearing.
2. The height of the monopole shall not exceed 160’ and
shall not deviate from the plans as submitted. The Board grants a waiver
from §V-E (7. c.) of the Zoning By-Law for the 160’ height to allow for
co-location which will reduce the need for other facilities, which
includes the Town’s public safety equipment which can be mounted above
the 160’.
3. The Applicant shall reserve space for the Town to
install its own public safety equipment, including an equipment cabinet,
provided that the Town supplies the equipment to the Applicant at the
time of the monopole’s installation.
4. If the Applicant receives
requests from other licensed wireless communication providers to
co-locate equipment or systems at the monopole, the Applicant shall
promptly provide written notice to the Building Commissioner of such
requests and allow such providers to co-locate at commercially
reasonable rates and locations on the monopole, provided that all
co-locations must be consistent will the terms of this Special Permit A2
and Variance and no co-locating provider may claim priority, by virtue
of this decision, over the Applicant (without the Applicant’s consent)
for use or position on the monopole.
5. A Variance has been granted from §V-E 7 (d) of the Zoning By-Law.
6. Existing on-site vegetation shall be preserved to the maximum extent possible.
7. The monopole shall be maintained in good condition and no lights are to be installed on the structure.
8. No flag shall be installed on the structure without the written permission of the Building Commissioner.
9.
A 6-foot high chain link fence with barbed wire top is to be placed
around the equipment cabinets as shown on plans as revised through
November 5, 2010.
10. All network interconnections from the monopole
shall be via land lines, with no visible additional antennas to be
installed.
11. The area surrounding the monopole and accessory
equipment cabinets shall be completely secure from trespass or
vandalism. A sign not larger than one square foot shall be posted
adjacent to the entry gate indicating the name of the facility’s owner
and a 24-hour emergency telephone number.
12. The monopole or parts
thereof which have not been used for two years shall be dismantled and
removed at the owner’s expense. In order to secure performance of this
action the Board requires the Applicant/Owner to secure a bond or other
form of security in order to complete the dismantling and removal. Prior
to the issuance of the building permit for the monopole the
Applicant/Owner shall submit a letter to the Building Commissioner
stating the cost of removal; such letter may be updated from time to
time to include the cost of inflation.
13. No commercial signage or advertising may be affixed to the monopole, surrounding fence or equipment cabinets.
14.
This permit shall expire five years from the date of issuance. Prior to
expiration the Applicant may apply for successive five-year renewals,
subject to the public hearing process. In determining whether the
Special Permit shall be renewed, the Board shall take into consideration
whether there then exists any structures and/or technology available to
the Applicant that would enable the Applicant to provide
functionally-equivalent services in a less intrusive manner.
This
decision shall not take effect until a copy of the decision bearing the
certification of the Town Clerk, that twenty (20) days have elapsed
since the decision has been filed in the office of the Town Clerk and no
appeal has been filed, or that if such appeal has been filed, that it
has been dismissed or denied, is recorded with the Plymouth County
Registry of Deeds and/or the Plymouth County Land Court Registry, and
indexed in the grantor index under the name of the record owner or is
recorded and noted on the owner’s certificate of title.
For the Board of Appeals,
_____________________
Joseph M. Fisher
January 12, 2011
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