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TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant:T-Mobile Northeast LLC
c/o Parisi Law Associates, P.C.
Property Owner:Penniman Hill Farm Inc.
Premises:266 Whiting Street
Title Reference:Plymouth County Registry of Deeds, Book 22150, Page 293
SUMMARY OF PROCEEDINGS
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
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
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
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.
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.
RULINGS AND DECISION
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
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