TOWN OF HINGHAM
BOARD OF APPEALS
IN THE MATTER OF:
Applicant: T-Mobile Northeast LLC
c/o Parisi Law Associates, P.C.
202 Broadway
Providence, RI 02903
Property Owner: Penniman Hill Farm Inc.
Premises: 266 Whiting Street
Hingham, MA 02043
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, December 10, 2009 and December 21, 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 Applicant’s 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.
By its Decision filed as of December 24, 2009 (the “Phase I Decision”), the Board addressed and granted, with conditions, the use Variance aspect of the zoning relief sought. This Decision (the Phase II Decision”) addresses the Special Permit A2, with Site Plan Review to be conducted by the Planning Board, which was conducted at a joint public hearing held on December 21, 2009.
Planning Board members present were Judy Sneath, Paul Healey, Susan Murphy, Sarah Corey and Gary Tondorf-Dick.
BACKGROUND
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.
DISCUSSION
As noted in the Phase I Decision, 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. 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 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 Town’s consultants also evaluated the possibility of a DAS as an alternative to the Applicant’s proposed tower, with particular attention to whether a DAS would provide telecommunication service as adequately as the Applicant’s proposed facility. The Applicant’s technical expert exchanged technical information and the capabilities and limitations of existing and available equipment with the Town’s consultant. After review the Town’s consultant concluded that 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 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.
The Planning Board members reviewed the project’s compliance with the Site Plan Criteria as defined in Section I-I (6) of the Zoning By-Law and voted to approve the Site Plan as presented, subject to the conditions set forth by Board of Appeals in this Phase II Decision. The Hingham Planning Board Site Plan Review dated January 22, 2010 is included in this decision as Exhibit A.
FINDINGS:
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 the Whiting Street/Cushing Street area targeted by the Applicant’s proposal, 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 because of current limitations with DAS equipment and incompatibility with the Applicant’s systems as described at the hearings;
3. A DAS would not adequately address the Town’s municipal communication needs at this time;
4. The Applicant’s proposed telecommunications systems is consistent with the standards for the issuance of a Special Permit under the Zoning By-Law provisions for telecommunications facilities, and the proposed site is appropriate for the facility; and
5. 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 130 feet (with the Town’s equipment to be placed above the 130 foot mark). Accordingly, the Board of Appeals grants a waiver from the 100 foot height limitation.
RULINGS AND DECISION
At the conclusion of the public hearing the Board of Appeals voted to GRANT the Special Permit A2 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 unipole) is to be constructed in substantial accordance with the plans presented (prepared by T-Mobile Northeast, LLC, 15 Commerce Way, Norton, MA, revised through September 30, 2009 stamped by Paul L. Mucci, Civil RPE and Kevin Blake, PLS) and the representations made at the public hearing.
2. The height of the unipole shall not exceed 130 feet. The Board grants a waiver from §V-E (7. c.) of the Zoning By-Law for the 130 foot height to allow for co-location which will reduce the need for other facilities, which includes the Town’s public safety equipment to be mounted above the 130 feet.
3. The Applicant shall provide the space and install, at the Applicant’s own cost, the Town’s public safety equipment, including a 10’ x 10’ equipment cabinet, provided that the Town supplies the equipment to the Applicant at the time of the unipole’s installation.
4. If the Applicant receives requests from other licensed wireless communication providers to co-locate equipment or systems at the unipole, 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 unipole, provided that all co-locations must be consistent will the terms of this Special Permit A2 and no co-locating provider may claim priority over the Applicant (without the Applicant’s consent) for use or position on the unipole.
5. A unipole shall not be erected nearer to any property line than a distance equal to
the vertical height of the unipole measured at the mean finished grade of the unipole base as shown on the plans revised through September 30, 2009.
6. Existing on-site vegetation shall be preserved to the maximum extent possible.
7. The unipole shall be painted white and 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 September 30, 2009.
10. All network interconnections from the unipole shall be via land lines, with no visible additional antennas to be installed.
11. The area surrounding the unipole 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 unipole 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 unipole the Applicant/Owner shall submit a letter to the Building Official 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 unipole, 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 which would enable the Applicant
to provide functionally-equivalent services in a less intrusive manner.
15. Nothing herein shall be construed as modifying the terms of the Board’s Phase I Decision filed as of December 24, 2009.
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
February 26, 2010