ZBA-T-Mobile Northeast LLC

8/6/2019 ZBA-T-Mobile Northeast LLC

1/7

tO WN 'CLEHKTOWN OF DUXBURY, MASSACHUSETTS 1 1 A P R -5 A M 1 0 :'2 ,BOARD OF APPEALS

! )UXBURY ,MASS ' :Decision on Application for Special Permit and VarIanceApplicant: T-Mobile Northeast LLCProject: 421 Elm Street, Case No. 10-20Decision: Special Permit and Variance approved with conditionsApplicant T-Mobile Northeast LLC ("T-Mobile" or "Applicant") seeks a special permitand variance to install a telecommunications tower, associated equipment and utilities asdepicted on the plans last revised December 28,2010 (the "Plans") and submitted withthe application (the "Application") on property located at 421 Elm Street (the "Site").For the reasons stated herein, the Board of Appeals (the "Board") finds that there is asignificant gap in T-Mobile's coverage, that no feasible and available alternative sitesexist, and that the Facility at the Site is the least intrusive means to remedy the gap incoverage. Accordingly, the Board voted to approve the special permit and variance at theSite as requested by Applicant.

BackgroundThe Board, consisting of Dennis Murphy, chair pro term, Judith Barrett, Michael Gill, JillCadigan-Christenson, and Scott Zoltowski, held public hearings at the town hall onNovember 18,2010, January 13, 2011 and March 10,2011 to consider the application ofT-Mobile for a special permit under Article 600, Section 610.6, and Article 900, Section906.2 of the Protective Bylaw of the Town of Duxbury (the "Bylaw") and a variancefrom Article 600, Section 610.5 pursuant to Article 900, Section 906.3 of the Bylaw. TheSite is located at 421 Elm Street identified as Parcel Number 082-100-043 on theDuxbury Assessors' Map. The Site contains approximately 2.09 acres of land, is zonedRC Residential Compatibility District and is located in the Aquifer Protection OverlayDistrict. The Site is owned by Stuart M. Lee and Leslie A. Lee (the "Owners"), 421 E lmStreet, Duxbury, Massachusetts. The Owners reside at the Site and have entered into alease with T-Mobile. T-Mobile is licensed by the Federal Communications Commission(the "FCC") to provide wireless services in Duxbury.The Applicant seeks aspecial permit to construct a one-hundfed(fOO'}foofhignwirelesstelecommunications tower with internally mounted antennas and an accessory equipment

.' _.._}~pD)p


2/7

At the initial public hearing and each continuation of the public hearing thereafter,notices of the public hearings and correspondence were read into the record.The Application, which is incorporated herein by reference, consists of a boundsubmission with ten (10) tabbed sections including: the Application Form; a ProjectNarrative; RF Coverage Maps & Affidavit; T-Mobile's FCC License; a Visibility Mapand Photo Simulations; a Structural Assessment; a Site Acquisition Affidavit; a 2CCertification - FAA Towair Report; a Letter of Authorization from the Owners; and, thePlans. The Plans consist of five (5) sheets: Title Sheet, Existing ConditionslPlot Plan &Notes, 1,000' Radius/Ortho Plan, Site Plan and Notes, and Compound Plan, Elevations &Details. The Application was supplemented by T-Mobile with additional radio frequencyplot maps requested by the Board. Additionally, the Board received from its peer reviewconsultant David Maxson, CEO of Isotrope, LLC the "Report on Application forWireless Telecommunications Services Facilities, with Tower, at 421 Elm Street,Duxbury, Massachusetts as Tendered by T-Mobile" (the "Report"). Finally, the Boardalso received an Archeology Memo dated January 24, 2011 from T-Mobile's consultingarcheologist, David Akerblom, noting that an intensive archeological survey would beperformed on the Site by May 2011.The Board received memoranda from the Duxbury Board of Health, DuxburyConservation Commission, the Duxbury Planning Board, and the Duxbury DesignReview Board with respect to the Application. The Board of Health provided nocomments on the Application.The Conservation Commission's memo raised a concern about whether the Site waslocated within the Duxbury Wetlands Protection Overlay District ("WPOD"). At asubsequent hearing, Applicant submitted plans which demonstrate that the Site iscompletely outside of the WPOD, thereby adequately addressing the concerns raised inthe Conservation Commission's memo.The Planning Board's memo questioned whether Applicant was seeking a waiver fromthe site plan review requirements under the Bylaw. Applicant assured the Board that wasnot the case and no waiver has been sought or granted from the site plan review process.The memo from the Design Review Board generally supported the Application and thelocation, indicating that the Facility would be barely visible from most angles, would be agood location for a tower and would not be detrimental to the neighborhood.

""In addition t o thememoranda from ourother fellow boards, the BolirdreceiVeda: s i f i g l eletter in opposition to the Application from an abutter to the Site, Carol Picardi of 431Elm St., who expressed concern with the view from her property, which she claimed will..:-":'-:~:;'\;~'::'o-~uevalue&'The Board-notes ; howe-ver-;tharth':~sibiflty-M-apand: PhotoSimulations- _:::::::-:_"'''-_"'-" : _ : " - - : . O isubmitted with the Application show that the Facility is not significantly visible exceptfor the view from Route 3. Another letter dated November 20,2010, from the Gambinosof 248 Mayflower St., expressed their support for the Application.

2


3/7

At the initial public hearing on November 18,2010, T-Mobile's counsel from BrownRudnick LLP, described the Facility and its location, and outlined the search foralternative sites in the area, as well as the need to fill an existing significant gap inwireless coverage. At the outset, the Applicant requested, and the Board agreed, that thehearing on the special permit and the variance be combined as the evidence submittedwould be identical in each instance. The Applicant presented evidence in support of theproposed location of the Facility at the rear of the Site, approximately fifteen feet fromthe side lot line that is adjacent to Route 3. Applicant testified that the location wasselected to fill the existing and significant gap in coverage along Route 3, a wellrecognized major state highway. The Facility is located approximately lIS' from theedge of the payment of the breakdown lane of Route 3 and approximately 130' from theedge of the travel lane. The location of the Facility on the Site would enable T-Mobile tofill its significant gap in coverage along Route 3 while complying with the heightlimitation pursuant to the Bylaw. Any movement of the Facility away from the gap incoverage would require additional height. Likewise, Applicant testified that the locationof the Facility on the Site would be surrounded by the Owners' property, land owned bythe Commonwealth of Massachusetts adjacent to Route 3, and conservation land ownedby the Town of Duxbury containing significant wetlands. Applicant also presentedengineering evidence to address any safety issues with the placement of the Facility neara property line and stated the Facility would comply with all applicable building codes.Applicant indicated that these tower structures are designed in accordance withapplicable building codes. Applicant stated that these towers are frequently installedimmediately adjacent to buildings, highways, roadways and other public properties,including schools.Applicant also presented evidence with respect to the alternative sites in the area thatwere considered. Applicant unsuccessfully tried to contact the Town about using Town-owned sites for the Facility. Applicant identified five (S ) Town-owned sites (082/100S02 066; 0821100404 OS7; 082/100 S 02 033; 0821100 S02 043; and 0821100 S 02 0 42 )that would have remedied the coverage gap, although some of these Town-owned parcelsare conservation land and contain significant wetlands.Additionally, Applicant reviewed an alternative site located at 21 Summer Street thatmay have provided the necessary coverage but at a height which exceeds the 100'maximum height pursuant to the Bylaw. At the Board's request, Applicant submittedadditional radio frequency coverage plot maps showing the coverage from the tower siteon Franklin Street and the need for a tower height of 140' if utilizing the property locatedat 21 Summer Street. Thus, a tower at 21 Summer Street would require a height varianceof 40', at least two (2) setback variances from lot lines and a variance from the 400'residential dwelling setback on an adjacent lot. Additionally, 21 Summer Street containssignificant wetlands and is located within the WPOD and the 100 Year Flood Zone which:;",'-:,,'c'~;:lirnite-d:-poteiitialsit1n!fecatieas-for-a t o w e r , " , . . . : ,~ ; ,- ~ ;0.. -::.."'-:-:.:;


4/7

Facility would be minimal. Other than the letter from Ms. Picardi, no one voicedopposition to the Application at any public hearing.The Board reviewed the Report of its consultant, Mr. Maxson, which supported theevidence contained in the Application and confirmed the need for a tower to remedy thegap in wireless coverage. Applicant noted that the Board has previously determined thehigh volume of traffic on Route 3 and presented Traffic Counts for Duxbury as noted onthe Massachusetts Department of Transportation web site. The Board further agreed thatApplicant had adequately searched all available alternative sites and agreed the Site wasthe only feasible location for the Facility to fill T-Mobile's significant gap in coverage.The Board reviewed the applicable standards and discussed the evidence presented byApplicant in satisfaction of those standards. The Board then voted to close the publichearing, and to consider the draft decision at the Board's meeting on April 4, 2011.

DecisionBased on the evidence and testimony presented at the public hearing, the Board votedunanimously on April 4, 2011, to approve the Application by granting a special permitand dimensional variance for the Facility to be built in accordance with the approvedPlans and applicable standards of the Bylaw (Sections 610.4, 610.5, 610.6, and 610.7),subject to the following conditions:

1. Site plan review by the Planning Board, in accordance with Bylaw Section610.7(2) and 615, and any conditions imposed in connection with that site planreview;2. Submit annual calculations of cumulative radio frequency emissions to the Zoning

Enforcement Officer and Board of Health, including a certification from an RFengineer that such emissions are within acceptable FCC standards, in accordancewith Bylaw Section 610.7(6);

3. Payment of a surety in the amount of $35,900 to cover the cost of removal of theFacility, in accordance with Bylaw Section 610.7(7)(a) and the estimate datedMarch 21, 2011 by Applicant's engineer, Scott N. Adams, Advanced EngineeringGroup, P.C. of East Providence RI. Such surety to be paid to the ZoningEnforcement Officer prior to the issuance of any building permit, and to be heldby the Town Treasurer until such time as the Facility has been abandoned ordiscontinued;

4. Payment of a monitoring fee, in addition to the building permit fee, to the ZoningEnforcement Officer in an amount and form acceptable to him, for monitoringand maintenance of the Facility, in accordance with Bylaw Section 610.7(7)(b);

5. Submit annual proof of continued operation of the Facility in the form of anaffidavit to the Zoning Enforcement Officer and Town Clerk, in accordance withBylaw Section 610.7(8); and

4


5/7

6. Other licensed telecommunications carriers and the Town, who wish to co-locatetheir antennae on the Facility shall be accommodated to the extent feasible, inaccordance with Bylaw Section 610.6(3).

Reasons for DecisionUnder the federal Telecommunications Act of 1996,47 U.S.C. s. 332 et seq. (the"TCA"), the authority of state and local government to apply traditional zoninrrequirements to wireless telecommunications facilities is significantly limited. The TCAcompels relief from zoning bylaws and ordinances where there is no other feasible siteavailable and there is a significant gap in coverage.t Absent substantial evidence to thecontrary on these elements, the denial of such zoning relief would "prohibit or have theeffect of prohibiting the provision of personal wireless services" in contravention of theTCA. 3 This federal mandate under the TCA trumps the more restrictive nature of localand state variance requirements."Although the Applicant has not presented evidence sufficient to meet the narrowstandards for issuance of a variance under G. L. c. 40A, 10 or the Bylaw, T-Mobile hasproven the two prerequisites required for relief under the TCA: (1) a significant coveragegap, and (2) no feasible alternative site. First, as supported by its consultant's Report, theBoard found that there is a significant gap in T-Mobile's wireless service in the area. Thatdetermination is based upon not only whether users can reliably connect and maintaincalls, but also on the number of customers affected.i As previously determined by theBoard, Route 3 is a major highway with a significant volume of traffic on a daily basis,(68,000 vehicles in 2005, the most recent information available).Second, the Applicant also demonstrated that, as set forth in the Site AcquisitionAffidavit (Application tab 7), they made a full effort to evaluate the availability andfeasibility of sites in the Elm Street and Route 3 search area to remedy the identified gapin coverage. The Board notes that the Town was not responsive to T-Mobile's attemptsto solicit interest in nearby Town-owned parcels and therefore those parcels are notavailable to T-Mobile as alternatives. Additionally, the Report evidences that a wirelessinstallation at 21 Summer Street would require a height variance to fill T-Mobile'ssignificant gap in coverage. The Board fully explored alternative sites during thehearings, and finds that further search would be futile.6

ISee Telecom Realty, LLC v. Town of Edgartown, 81 F. Supp. 2d 257, 259 (D. Mass. 2000).2 See Cellco Partnership v. Town of Grafton, Mass., 336 F. Supp. 2d 71, 82-83 (D. Mass 2004).347 U.S.C. 332(c), (7) (B) (i) (II) and (B) (iiii).

..~.!"_':'''7-..:~-,'' .:!;.,_::::,_,.:-;.,;~;;1~:;"',~'=;~~7.''':'';~:~~7,~.,' ::'.'-~-:..:'._,__


6/7

The Board determined that the location of the Facility on the Site is the best location andproduces the least visual impact on the Town of Duxbury and the surroundingneighborhood. By locating the Facility to the rear of the Site, the Facility will be locatedadjacent to land that abuts a major highway (also the area ofT-Mobile's significant gap)and adjacent to wetlands on Town-owned property. Additionally, the location of the.Facility allows Applicant to fill its existing coverage gap while complying with the heightrequirement pursuant to the Bylaw. The Board's determinations that there is no otheravailable and feasible site and that there is a significant coverage gap in the service areasupport the Board's issuance of the special permit and variance, consistent with theirobligations under the TCA.

ConclusionAny departure from the representations made by the Applicant in the Application will because for review of this special permit and variance if the Board finds, after notice ofhearing, that such departure is significant. This special permit and variance, including theconditions, limitations and safeguards described herein, may be amended, revised, orrevoked by the Board, acting on its own motion or on the motion of the Planning board,Building Inspector, or of any interested person, after notice and hearing in the mannerdescribed in G. L. c. 40A. This variance shall expire unless construction has beencommenced within one (1) year from the date of filing of the Board's decision in theoffice of the Town Clerk. Any construction or alteration must be continued through tocompletion as continuously and expeditiously as is reasonable.Any person aggrieved by this decision of the Board of Appeals may file an appealpursuant to the provisions of G.L. c. 40A, s. 17 within twenty (20) days of the filing ofthis decision in the office of the Town Clerk. An appeal may also be filed pursuant to theapplicable provisions of the TCA within thirty (30) days of filing this decision in theoffice of the Town Clerk. The Board hereby certifies that copies of this decision and allplans referred to therein have been or shall be filed forthwith in the office of the TownClerk. For this decision to become effective, a copy of said decision and notice thereofmust be recorded by the Applicant at the Plymouth County Registry of Deeds and mustbear the certification of the Town Clerk that twenty (20) days or, in the case of an appealunder TCA, thirty (30) days have elapsed and no appeal has been filed, or that if suchappeal has been filed, that it has been dismissed or denied. A certified copy of saidrecord;EJt3.: ~~th theBoardofAppeals

...Dennis-A. Murphy, Chair pro.tern, _. . , , , . . "April 4, 2011

6


7/7

Copies to:(petitioner, legal mailing address)All abutters and other persons listedon the case filed Affidavit of NoticeBoard of SelectmenBoard of AppealsBoard of HealthAssessorsInspector of Buildings (2)Planning Board of DuxburyDesign Review BoardConservation CommissionWater DepartmentPlanning DirectorPlanning Board of KingstonPlanning Board of MarshfieldPlanning Board of PembrokePlanning Board of PlymouthDuxbury Clipper

April 25, 2011I hereby certify that the Decision, Case #10-20, of the Duxbury Board of Appealshas been received and recorded at this office and no Notice of Appeal wasreceived during the twenty days next after such receipt and recording of saidnotice.

~GUl C. ~ r O Q Ii"'Susan C. KelleyAssistant Town Clerk

April 25, 2011

7

Documents

ZBA-T-Mobile Northeast LLC