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Applicant:T-Mobile Northeast LLC

c/o Parisi Law Associates, P.C.

202 Broadway

Providence, RI02903

Property Owner:Penniman Hill Farm Inc.

Premises:266 Whiting Street

Hingham, MA02043

Title Reference:Plymouth County Registry of Deeds, Book 22150, Page 293


This matter came before the Board of Appeals on the application of T-Mobile Northeast LLC (the "Applicant"), c/o Parisi Law Associates, P.C., 202 Broadway, Providence, RI, for a Special Permit A2 under §V-E, use Variances from §III-F and §V-E (4), along with a Variance and/or waiver from §V-E (7. c.) and/or a height Variance from §IV-A of the Zoning By-Law and such other relief as necessary to construct a 130' Wireless Communications Facility, consisting of the installation of a Unipole (a monopole with interior antennas), on a portion of the land at Penniman Hill Farms located at 266 Whiting Street (the "Property"), in Residence District C.

Public Hearings were duly noticed and held before the Board of Appeals at the Hingham Town Hall commencing on August 20, 2009, with continuations thereafter on October 1, 2009, October 29, 2009 and December 10, 2009 before a panel consisting of regular members Joseph M. Fisher, Chairman, Joseph W. Freeman and W. Tod McGrath.

Attorney Francis D. Parisi of Parisi Law Associates, P.C, represented the Applicant.Accompanying Mr. Parisi was Don Nguyen, T-Mobile's Radio Frequency Engineer with responsibilities assigned by T-Mobile for radio/personal communication service network design in Massachusetts.

In accordance with the provisions of the Zoning By-Law the Board of Appeals requested an independent review of the Applicants' proposal and related technical data.The Board obtained an independent review from David Maxson, a Municipal Wireless Consultant and Managing Partner of Broadcast Signal Lab, LLP, 503 Main Street, Medfield, MA 02052.Mr. Maxson has managed, leased, and built towers and holds a Massachusetts Contractor's License. Broadcast Signal Lab, LLP provides wireless technology consulting services to municipalities considering wireless facility applications

This Decision (the "Phase I Decision") addresses only the use Variance aspect of the zoning relief sought.The Special Permit A2, with Site Plan Review to be conducted by the Planning Board, was conducted at a joint hearing held on December 21, 2009 and a subsequent decision of the Board will address those matters (the "Phase II Decision").


The Property consists of approximately 9 acres of land and according to Town records it appears that it has operated as a pre-existing non-conforming use for many years as the use of the property has been primarily agricultural in nature.The Applicant is proposing to lease a portion of the land and construct a 784 sq.ft. compound that will be secured by a six foot (6') chain link fence with barbed wire.Inside the compound will be a one hundred thirty foot (130') "unipole" (a monopole tower with internal antennas), including foundation, base plate and anchor bolts.According to the Applicant's proposal, inside the unipole at a height of approximately one hundred twenty-seven feet (127') to the center line will be three (3) panel antennas, and another three (3) antennas will be placed approximately one hundred seventeen feet (117').A total of three (3) base transmission cabinets are proposed to be placed on a concrete pad at the base of the unipole inside the compound.

Section III-F of the Zoning By-Law establishes the Personal Wireless Services Overlay District, Section V-E (4) of the by-law establishes the location/district (Industrial, Industrial Park or Limited Industrial Park and Office Park) that allows for the installation of Personal Wireless Services with minimal harm to the public health, safety and general welfare.The Property is located in Residence District C and is not within the Personal Wireless Services Overlay District or the location/district as stated in Section V-E (4) therefore the Applicant sought relief in the form of a use Variance.


During the initial hearing held on August 20, 2009 the Applicant gave testimony concerning its need to enhance service coverage in the southern portion of Hingham in and around Routes 3 and 53, Cushing Street, Gardner Street and Ward Street, all 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, which provides:

a.At the Board's discretion, the Applicant shall conduct a balloon or crane test, or

such other reasonable equivalent, of the height of the proposed Tower. Upon

notice that such a test will be required, the Applicant is responsible for making

arrangements with the Board's staff so that notice of the test may be included

within the legal notice for the public hearing. Photographs of the actual test

from a suitable number of locations so as to depict the visual impact of the

proposed facility on the Town shall be submitted to the Board at the public hearing.

A crane test was duly noticed and held on September 12, 2009.All members of the Board viewed the test on-site and photographs of the crane test were submitted to the Board shortly thereafter.

The Applicant presented evidence that its system requires an ambient signal level of –84 dBm to provide reliable In-Vehicle coverage, an ambient signal level of –76 to provide reliable In-Building Residential coverage, and an ambient signal level of – 71 dBm to provide reliable In-Building Commercial coverage.These signal level requirements provide the basis for T-Mobile's design criteria and the absence of such signal levels creates gaps in coverage.

The Applicant offered its computer prediction models and RF engineering studies and reports, along with the testimony of Mr. Nguyen, as the basis for its determination that a new facility at 266 Whiting Street in Hingham would be critical to the overall engineering and technical plan for its network.

Mr. Nguyen testified that the subject location has specific characteristics of topography, relationship to existing structures and its location within the narrow search limits specified by the Applicant's computer model, making it uniquely suitable to address the Applicant's need for a proposed wireless telecommunications transmission facility. Mr. Nguyen offered evidence that the proposed site was determined to be the most appropriate location for a facility to fill the existing gap in service coverage within the context of available land parcels provided to him for analysis.

The Applicant asserted that without a wireless transmission facility located at or near this location, a significant area of inadequate, unreliable coverage would remain in its wireless network in the vicinity of the proposed installation.This lack of service area or "gap" in coverage would adversely impact the service that the Applicant would be able to provide to businesses and residents of Hingham as well as travelers along Whiting Street, Cushing Street, Derby Street, and other primary roads through and around the Town of Hingham.

The Applicant established several quality metrics for its service, including Congestion / Blocking, Call Set-up Failure, Dropped Call.The result of any of these forms of a service "gap" will be an inability for the Applicant's customers reliably to initiate, receive, or maintain voice and data connections, including 911 emergency calls, from the time that subscriber leaves the service area until that subscriber reaches that point where a quality signal is available to reinitiate the communication link.

The Applicant represented that all its proposed wireless communications equipment would be installed, erected, maintained and operated in compliance with all applicable Federal, State and local regulations, including, but not limited to: the radio frequency emissions regulations set forth in the 1996 Federal Communications Act, applicable regulations administered by the Federal Aviation Administration (FAA), Federal Communications Commission (FCC), Massachusetts Aeronautics Commission and the Massachusetts Department of Health. The Applicant further represented that all equipment proposed is authorized by the FCC Guidelines for Evaluating the Environmental effects of Radio Frequency Emissions. The radio frequency exposure levels generated by the proposed facility would be substantially below the maximum allowable health and safety standards established by the FCC.In addition, the proposed equipment and transmission characteristics would be in compliance with standards set forth by the American National Standards Institute (ANSI) and the National Council of Radiation Protection (NCRP).

The Board acknowledged that the Applicant 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 further acknowledged that, as a local zoning authority, it may not take actions that would "prohibit or have the effect of prohibiting the provision of personal wireless services" in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), the Telecommunications Act of 1996 ("TCA"), Pub.L. No. 104-104, 110 Stat. 56.

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 Board, having found that a coverage gap exists, went on to require that the Applicant show that there are no alternative sites that would solve the problem.The Applicant presented computer simulations and maps that examined alternative tower locations at Linden Ponds, Derby Saint Consulting, and the Hingham Shopping Plaza.The Board also looked at the feasibility of building a distributed antenna system ("DAS"), in which fiber optic cables connect a series of antennae mounted on utility poles. The evidence suggested that none of the alternatives would adequately solve the Applicant's problem.

The Town's consultant reviewed the Applicants' 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 feet, 130 feet, and 150 feet.Also, the consultant assisted the Board in considering the benefits and detriments of alternative designs; "unipole" design with interior mounted antennae, and "monopole" with exterior flush-mounted antennae, were reviewed and discussed.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, especially with reference to the Whiting Street/Cushing Street area.

Several abutters and nearby residents attended the hearings and expressed their concerns and objections to the construction of the proposed pole, and concerns with respect to its height and visibility.Concerns were also raised with regard to the potential for future proliferation of poles on the Property or nearby to fill in remaining "gaps" and/or to provide additional telecommunication capacity in the event that the proposed facilities capabilities become overtaxed.The public was reminded of the constraints imposed upon the Board of Appeals by the provisions of the TCA.


At the conclusion of the public hearing the Board of Appeals first considered whether the Applicant qualified for a Variance pursuant to 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 currents uses of the premises were "economically unfeasible." The property could reasonably be used in the manner currently allowed by the Town's 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, 08-2491 (1st Cir. 11-3-2009), 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 Applicant a use 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 the Board voted to GRANT the Variance for the use of this location as the site of a Wireless Communications Facility subject to the following conditions:

1.No construction of a Wireless Communications Facility may commence without first obtaining a Special Permit A2 under Section V-E of the Zoning By-Law;

2.No Wireless Communications Facility may remain at the site unless it is being operated and maintained pursuant to a Special Permit A2 under Section V-E of the Zoning By-Law; and

3.The Wireless Communications Facility is to be constructed in substantial accordance with the plans presented in the application and representations made at the public hearing subject to the terms and conditions specified in the Special Permit A2 under Section V-E of the Zoning By-Law.

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

December 23, 2009