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TOWN OF HINGHAM
Board of Appeals
NOTICE OF DECISION
VARIANCE
IN THE MATTER OF:
Applicant: Cello Partnership d/b/a Verizon Wireless
c/o Duval & Klasnick LLC
210 Broadway, Suite 204
Lynnfield, MA 01940
Owner: South Shore Baptist Church
578 Main Street
Hingham, MA 02043
Property: 578 Main Street, Hingham, MA 02043
Deed Reference: Plymouth County Registry of Deeds, Book 2326, Page 61
Plan References: Plan set entitled, "Hingham 5 MA, 578 Main Street, Hingham, MA 02043," prepared by Hudson Design Group, LLC, 1600 Osgood Street, No. Andover, MA, dated October 28, 2016, revised through March 7, 2017 (Sheets T-1, C-1, A-1, and A-2) and specifications from York Heating and Cooling for Steller 2000TM Split System Air Conditioners
SUMMARY OF PROCEEDINGS
This matter came before the Board of Appeals (the “Board”) on the application of Duval & Klasnick LLC acting on behalf of Cello Partnership d/b/a Verizon Wireless (the “Applicant”) for a Variance from § V-E.4 and 9.a of the Zoning By-Law (the “By-Law”) to allow an unconcealed antenna and mechanical equipment to be installed in connection with a Personal Wireless Service Facility at 578 Main Street in Residence District A.
A public hearing was duly noticed and held on March 15, 2017 at the Town Hall, 210 Central Street, along with a concurrent hearing on a simultaneously filed special permit application under § V-E. of the By-Law. The Board panel consisted of its regular members Joseph W. Freeman, Chairman, Robyn S. Maguire, and Joseph M. Fisher. The Applicant was represented during the hearing by Daniel Klasnick of Duval & Klasnick LLC.
At the conclusion of the hearing, the Board voted unanimously to grant the requested relief subject to conditions contained herein. Throughout its deliberations, the Board has been mindful of the statements of the Applicant and the comments of the general public, all as made or received at the public hearing.
BACKGROUND
The Town of Hingham Zoning By-Law provides in § V-E, 4. and 9.a that wireless communications facilities are allowed in the Residential zoning district upon the issuance of a Special Permit A2 provided that the proposed facilities are fully enclosed within a non-residential structure. The proposed plan locates a concealed wireless facility, consisting of 4 antennas at 62’-4” centerline height with 12 remote radio heads, installed behind replacement fiberglass panels within the existing church steeple. However, a small GPS antenna will be mounted to the steeple exterior for E911 compliance. Mechanical equipment, namely a rooftop mounted natural gas backup generator and 2 condenser units on a concrete pad adjacent to the building, will also be installed in connection with the wireless facility. Since these related improvements are not fully enclosed within the building, the Applicant requested a variance in addition to the Special Permit A2.
The Board received a Radio Frequency Report and propagation maps in support of the application. The Report suggests that the proposed facility is centrally located in an area of deficient service. Without the facility, Verizon would be unable to improve and expand its existing 4G LTE wireless communication services in this area of Hingham, which includes key roadways such as Main Street (Rte. 228), High Street and Free Street. The courts found in both Nextel Communications of the Mid-Atlantic v. Wayland and Sprint Spectrum L.P. v. Town of Swansea that communities 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.
In conjunction with the applications before the Board, the Applicant filed related applications for Site Plan Review with the Planning Board and a Certification of Appropriateness from the Historic Districts Commission (the “HDC”). On February 27, 2017, the Planning Board found that the request constituted a Minor Site Plan and voted to waive its review in connection with the Special Permit A2 application. A Certificate of Appropriateness was issued on the same day by the HDC.
FINDINGS
Based upon the information submitted and received at the hearing, and the deliberations and discussions of Board members at the meeting, the Board has determined that:
1. There are circumstances relating to soil conditions, shape or topography especially affecting the land but not affecting generally the zoning district. Due principally to the topography of the land in the vicinity of the site and Verizon’s regional network needs, it is necessary to install the one antenna outside of the host structure. The facility itself is allowed within the existing structure; however, relief is required for the related antenna and other equipment that support the facility, but is not itself enclosed within the structure.
2. The literal enforcement of the Bylaws would involve substantial hardship financial or otherwise. Literal enforcement of the Zoning by-Law would have the effect of prohibiting wireless services, including but not limited to times of power outages, which would involve substantial hardship. Physical and regulatory barriers exist that limit location of the small GPS antenna, generator, and condensers within the existing structure. A grant of a Variance in this instance will allow for a reasonable placement that is consistent with the existing improvements on the property and other residential uses within the District.
3. A variance may be granted without substantial detriment to the public good. While the small GPS antenna will be mounted to steeple exterior, it will be white in color so as to minimize its visibility. The proposed condenser units will be fully screened from view by a 6’ tall fence and landscaping thereby minimizing any potential visual or auditory impacts associated with the proposed equipment. Finally, the proposed rooftop backup generator will resemble to appearance of existing rooftop HVAC units. There will be no adverse effects and there will be no harm to the public good resulting from the proposed project.
4. A variance may be granted without nullifying or substantially derogating from the intent or purposes of the Bylaw.
The GPS antenna, emergency backup generator, and condensers require minimal relief and are necessary to support the proposed wireless communication services facility to be located within the church steeple. Utilization of the otherwise stealth design to collocate inside an existing structure minimizes the need for additional towers in the community while improving wireless coverage in the area. Relief will allow for a reasonable use of the existing structure on the property, in a manner that meets the carrier’s network needs, and is consistent with the purposes of the By-Law.
DECISION
Upon a motion made by Robyn S. Maguire and seconded by Joseph M. Fisher, the Board voted unanimously to grant Variances from § V-E.4 and 9.a of the Zoning By-Law (the “By-Law”) to allow an unconcealed antenna and mechanical equipment to be installed in connection with a Personal Wireless Service Facility at 578 Main Street in Residence District A, subject to the following conditions:
1. That all work shall be performed in accordance with the approved plans and representations made at the public hearing before the Board and all other requirements specified in § V-E., 10. of the By-Law.
2. Routine testing of the emergency backup power generator will only occur between the hours of 7am and 8pm.
3. The relief granted by this Variance is limited to the wireless communication services facility use; no other use can operate the antenna in this location.
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 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 W. Freeman, Chairman
May 22, 2017
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