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TOWN OF HINGHAM

BOARD OF APPEALS

SPECIAL PERMIT A2 DECISION

IN THE MATTER OF:

Applicant: Global Tower Assets LLC & New Cingular Wireless PCS, LLC/AT&T

750 Park of Commerce Blvd. c/o KJK Wireless, LLC

Suite 300 127 Ridge Road

Boca Raton, FL 33487 Nashua, NH 03062

Property Owner: Anchor Plaza Realty Trust

134 East Howard Street

Quincy, MA 02169

Premises: 207-225 Lincoln Street

Hingham, MA 02043

Title Reference: Plymouth County Registry of Deeds Book 22660, Page 46

Plan Reference: Site plans entitled "Site Name: Hingham, Site Number: MA5056, Address: 207-225 Lincoln Street, Hingham MA" prepared by Proterra Design Group, LLC, 1 Short Street, Suite 3, Northampton, MA, dated August 2, 2013, revised through January 21, 2014, Sheets T1, EX-1-EX-2, P-1, A1-A5, D1-D2, CA-1, and EA-1

SUMMARY OF PROCEEDINGS:

This matter came before the Zoning Board of Appeals on the application of Global Tower Assets LLC and New Cingular Wireless PCS, LLC/AT&T (lessee – the “Applicant”) for a Special Permit A2 under § V-E, along with a waiver from the 100' maximum height requirement under § V-E, 7.c of the Zoning By-Law and such other relief as necessary to construct a multi-user personal wireless services facility consisting of a 120' cell tower on land of Anchor Plaza Realty Trust located at 207-225 Lincoln Street in Residence District A.

A public hearing was duly noticed for Wednesday, November 20, 2013, along with a crane test for Saturday, November 9, 2013 as requested by the Board in accordance with § V-E, 7.a of the Zoning By-Law. The initial hearing was continued without receiving testimony at the Applicant's request until Thursday, December 19, 2013. Subsequent hearings were held on February 24, 2014, March 19, 2014, May 14, 2014, June 10, 2014 and July 23, 2014. The Board deliberated during a public meeting on August 5, 2014. Continuances to the hearing and extensions to the decision deadline were made upon the request of, or agreed to by, the Applicant. Public hearings on the application were held at Town Hall, 210 Central Street, Hingham, MA, before a panel consisting of Joseph W. Freeman, Chairman, and regular members Joseph M. Fisher and W. Tod McGrath. The Board was assisted in its review during the hearings by its consulting engineers, John Chessia, P.E., and Ronald Graiff, P.E., Radio Frequency ("RF") Consulting Engineer.

The Applicant was in attendance at all hearings. The Applicant's representatives included Attorney Earl Duval and Attorney Elizabeth Thompson, Duval & Klasnick, LLC; Jesse Morano, P.E., Proterra; Keith J. Tindall, P.E., Sabre Industries; Doug Shidell, Modeling Specialties; Donald L. Haes, Jr., Ph.D., CHP, Radiation Safety Specialist; Andrew G. LeMay, SRA, SRPA, CNHA, NHCG #8, NorthStar Consulting Group; Shane Eagleson, RF Engineer, AT&T, Michael Lawton, SAI Communications and Sanket Y Joshi, RF Engineer, SAI Communications; Jaclyn Swenson, KJK Wireless, LLC; and Stephen Kelleher, Site Acquisition Specialist, Global Tower Assets.

Members of the community were also in attendance at all hearings, including representatives of an abutter’s group known as ACTION (“Against Cell Towers In Our Neighborhoods”).

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 Premises consists of multiple parcels that in combination total approximately 5.6 acres in size. The site is bifurcated by a zoning district boundary line, with the front portion zoned Business B and the rear zoned Residence A. The property supports multiple businesses, including two health clubs, restaurants, and a liquor store. The Applicant has sited the proposed cell tower on the residentially zoned portion of the property.

The Premises fronts on Lincoln St., which connects pockets of commercial development and residential neighborhoods with the historic downtown and harbor area. There are one and two-story single family homes to the immediate west and south (across the street) of the Premises, an assisted living facility and single-family homes to the north, and small commercial businesses to the east.

The Applicant proposed construction of a cell tower, approximately 120' in height, within a 50'x50' residentially zoned area to the rear of the onsite commercial businesses. The structure would be located approximately 83' from the nearest residential property line. where 120' is required.

The Hingham Zoning By-Law allows cell towers within all industrial and office park zoning districts, as well as the Personal Wireless Services Overlay District, upon the issuance of a Special Permit. Section V-E, 4 of the Zoning By-Law also provides that wireless communications facilities, other than a Tower, are allowed in residential zoning districts provided that the proposed facilities are enclosed within a non-residential structure.

In areas where Towers are allowed, the Hingham Zoning By-Law, § V-E, 7.c, prohibits Tower heights from exceeding 100 feet, although the Board may waive this restriction to allow for co-location that would reduce the need for other Facilities. However, the Premises are not in an area where Towers are allowed.

In areas where Towers are allowed, the Hingham Zoning By-Law, § V-E, 7.d, prohibits Towers from being erected nearer to any property line than a distance equal to the vertical height of the Tower. The proposed Tower would be approximately 120' in height and located approximately 83' from the nearest residential property line, resulting in an incursion of 37’ into the required “fall zone” buffer, representing over 30% of the tower height.

In addition to the requested relief before this Board, the proposed facility required local approvals from the Conservation Commission and the Planning Board. The Commission issued its Order of Conditions authorizing the installation of the proposed facility on April 14, 2014. Following a number of joint hearings with the Zoning Board, the Planning Board voted on June 9, 2014 to conditionally approve the site plan and issue a Special Permit A3: Parking Determination for the proposed construction. Pursuant to § I -I, 2.c, conditions imposed by the Planning Board in its Site Plan Approval shall be incorporated into any Special Permit A2 issued by the Board of Appeals. The By-Law also provides that the Board of Appeals may propose to the modification or removal of a site plan condition imposed by the Planning Board. In accordance with § I-I, 2.c, the Zoning Board proposed the removal of the following conditions of the Planning Board's Site Plan Approval, dated June 12, 2014:

17. If the Tower is no longer in use as a wireless telecommunications facility, GTP shall remove the facility within six months.

18. The Applicant should obtain an estimate for and post with the town a removal bond prior to the start of construction.

Section V-E, 7.j of the Zoning By-Law provides that (emphasis added): "All unused Towers or parts thereof which have not been used for two years shall be dismantled and removed at the owner's expense. The Board of Appeals may require that the proper dismantling and removal of a Tower be secured by a bond or other form of security sufficient in the opinion of the Board to secure performance under this subsection (j)." Conditions related to future removal of the structure would be more appropriately contained in this Special Permit. On July 14, 2014, the Planning Board voted to strike Conditions 17 and 18 from its Approval as requested by this Board.

DISCUSSION:

The Board received documents and heard testimony from the Applicant, residents, Town Officials, and its consultants. Much of the information provided concerned issues related to the purported coverage gap and expected impacts of the facility in terms of safety, property values, and aesthetics. The following is a summary of the issues discussed by the Board throughout the extensive public hearing process.

Coverage Gap

In the application narrative, AT&T indicated that there is a coverage gap along Downer Avenue from Lincoln Street (East of Bradley Woods Drive) to the east side of Broad Cove Road and the surrounding area. In a later affidavit, RF Engineer, Sanket Joshi, notes the coverage gap as being “within the City [sic] of Hingham, especially along Lincoln Street, Thaxter Street, Planters Field Lane, Downer Avenue, Broad Cove Road, as well as surrounding roadways, town businesses and venues."

The Board's consulting RF Engineer, a Licensed Professional Engineer practicing radio frequency engineering for over 45 years as well as designing numerous cellular systems and reviewing hundreds of such applications, determined that the Applicant has not demonstrated that there is a significant gap in the area where the Applicant claims that it requires coverage at 850 MHz (the UMTS system). Furthermore if the Applicant had utilized signal levels consistent with levels used by AT&T in other jurisdictions, there would be no gaps at all in the area where the Applicant has alleged deficiency in UMTS coverage. Hingham ACTION also submitted documentation from RootMetrics, an independent third party mobile analytics firm, demonstrating that there is adequate coverage (-82 dBm or greater when -8 dBm attenuation considered for in-vehicle location of device) in the area. The group conducted 600 calls during peak drive hours to verify that there is adequate voice coverage from a customer experience perspective. The group used RF Tracker (an application for Android phones) to monitor and record signal strengths and origins in the area. The results demonstrate that the majority (90%) of the area is served by the Shipyard Smokestack or another cell tower known as "Turkey Hill" in Cohasset. The remaining 10% of the coverage area is scattered along the northern portion of Crow Point and, according to the data, the Applicant’s proposed facility at Anchor Plaza would not provide measurable service at 850 MHz in this area. In other words, (a) the gap area alleged by the Applicant is incorrect, (b) to the extent there are service issues, the affected area is located in the northern portion of Crow Point, and (c) the Tower proposed by the Applicant would not materially improve coverage in the northern portion of Crow Point.

The Board's consulting RF Engineer also found that the Applicant demonstrated scattered deficiencies in coverage in the area that the Applicant claims requires coverage at 1950 MHz (the PCS, AWS system); however, he notes that the proposed location for the Applicant’s Tower does little or nothing to significantly improve coverage in the areas where there might be deficiencies. Furthermore, if the Applicant had utilized appropriate signal levels, as discussed above, then any alleged deficiencies in service would have been markedly reduced.

The Applicant did not submit any evidence that provides the size of the purported gap or the number of users affected. Instead, the Applicant tried to show the increase in coverage by linear feet of roadway in the area and the estimated number of properties that would be served at -82 dBm or greater by the proposed facility (~275). Hingham ACTION preformed independent continuous wave (CW) drive tests that suggest that there may only be 35 residential properties within scattered dead spots at 1950 MHz due in part to the presence of significant open space and undeveloped property in the area claimed to need coverage.

The Zoning By-Law, §V-E, 10.i, directs Applicants to prepare an alternatives analysis, which must demonstrate “that no other existing or proposed facility can, or can reasonably be adapted to, provide adequate coverage and service.” Though repeatedly requested, the Petitioner never provided the Board with a depiction of its Search Ring that would show the area considered for proposed facilities. The application as revised did include a spreadsheet listing approximately 30 sites considered, but dismissed, by the Applicant. A significant portion of the dismissed locations where due to proximity to an existing AT&T facility at the Hingham Shipyard, where antennas and telecommunications equipment are mounted to a smokestack. However, the Applicant's RF expert, Michael Lawton, later testified that proximity to an existing site does not represent a challenge from a coverage perspective.

According to both the Board's consulting RF Engineer and Hingham ACTION, there are numerous alternative locations that should have been considered to improve AT&T's 1950 MHz system coverage. Moreover, the Applicant has not demonstrated that any of these alternate locations are either unavailable or not suitable for its installation. These alternative locations include:

9 Shipyard Drive - AT&T maintains and operates equipment at 9 Shipyard Drive (the "Shipyard Smokestack"). This facility is located in an Industrial District approximately 7/10ths of a mile from the Premises. The Hingham Zoning By-Law allows cell towers upon issuance of a Special Permit in industrial zones. The Petitioner (AT&T) sought and attained permits from the Town to move its equipment from a height of 186' on the Shipyard Smokestack down to 130' in 2011. There is evidence in the record to suggest this relocation had a negative impact on the carrier's coverage in the area. In other words, the Applicant’s asserted deficiencies in coverage may be the result of a self-created hardship, caused by AT&T’s voluntary decision several years ago to lower its antennas at the Shipyard Smokestack. Furthermore, the Applicant has failed to demonstrate that modifications could not now be implemented at the Shipyard Smokestack to provide significantly improved coverage to the area. For example, some or all of the antennas on the Smokestack structure at elevation 130' could be relocated to elevation 186'. Path profiles prepared by the Board's RF Engineer verify that there are no obstructions in the terrain between this existing facility and the area the Petitioner claims is in need of coverage.

1 Lincoln Street – In 2011, AT&T received approval from the Board to locate antennas within the New North Church steeple at 1 Lincoln Street, which is less than a mile from the Premises. However, AT&T voluntarily opted not to install the equipment shown on the approved plan, which could have provided improved service at 1900 MHz in the area.

Foster School, 55 Downer Avenue - The Applicant's RF Engineer testified that this would be an ideal location for a potential Personal Wireless Services Facility as it is centrally located within the area of AT&T's purported coverage gap. The property is approximately 40 acres in size, with sufficient uplands to permit location of a similarly scaled facility that would comply with setback requirements. However, the site acquisitions specialists, Jaclyn Swenson and Stephen Kelleher, failed to contact the School Committee in writing to request consideration. The School Committee Chairman, Ray Estes, testified during the hearing that the school would have considered the request had it been formally submitted. The Applicant’s site acquisitions specialist testified that she made a phone inquiry to someone involved with the school’s administration, but she acknowledged that there was no written follow-up to confirm interest in this ideal location.

0 Planters Field - This property consists of approximately 6.5 acres of undeveloped land across the street from Foster School. The site was not included on the Applicant’s list of alternative locations. The AT&T site acquisitions specialist testified that she had not considered this location. The site is adjacent to the area described by the Applicant's RF Engineer as "ideal" in terms of coverage.

Turkey Hill, Cohasset - The Applicant confirmed that it had not considered improvements to or alteration of the existing telecommunications facility at Turkey Hill (MA1176) as a means to improve coverage in the area. The Applicant stated that coverage from the facility "is too far removed from the coverage gap to show up on plots." However, Hingham ACTION verified that approximately 30% of the area within the purported coverage gap is currently served by the Turkey Hill facility.

On-Premises Alternatives - The Board requested that the Applicant consider two alternative locations of the proposed Tower, both remaining within the identified Premises:

Alternative 1: Move the proposed Tower further from the residential neighbors by relocating it within the Premises but closer to a wetlands area, namely, to within the fifty-foot "no disturb" area defined by the local Wetlands By-Law. However, the Petitioner did not present such a request to the Conservation Commission, opting instead to maintain a 72' setback from the wetland resource area.

The Board noted that it should be up to town commissions and boards to make the assessment about environmental concerns and to evaluate possible tradeoffs that might benefit town residents.

Alternative 2: Move the proposed Tower further from the residential neighbors by relocating it to the front portion of the Premises zoned for business and out of the back portion of the Premises zoned residential. The Board specifically asked the Applicant if there were any conditions related to shape, topography or soil conditions of the lot that would prevent location of the Tower to the business-zoned portion of the Premises, further from residential abutters. The Applicant's engineer confirmed that there were not any limiting conditions related to shape, topography or soil conditions. Instead, the Applicant indicated that it would be unable to attain a lease from the property owner for the portion of the lot zoned for business.

The Board noted that Applicant’s position was antithetical to responsible zoning. Just as it is not appropriate for neighbors to oppose a site location simply based on NIMBY ("Not In My Back Yard"), it is equally unacceptable for a property owner to oppose a site location by asserting “Not in My Front Yard”. Locating the proposed Tower on the same premises but out of the residential zone might not be the property owner’s first choice, but if locating the Tower to the front of the property would mitigate some of the zoning concerns, then surely this alternative location should not be ruled out. Neither the Applicant nor the property owner may arrogate to themselves all zoning authority with respect to site selection.

Safety Concerns

One of the overriding purposes of the Zoning By-Law, § I-A, 2, is "to secure safety" from dangers. To that end, § V-E, 7.d prohibits location of a cell tower "nearer to a property line that a distance equal to the vertical height of the Tower (inclusive of any appurtenant device) measured at the mean finished grade of the Tower." As noted above, the proposed Tower would be approximately 120' in height and located approximately 83' from the nearest residential property line, resulting in an incursion of 37’ into the required “fall zone” buffer. Thus, the tower exceeds by 30% the maximum height restriction created by its proximity to a residential property.

The Board noted that, in the interests of public safety, other communities have required a fall zone of 110%, 120% or greater of the Tower’s height. Hingham’s By-Law does not go that far, but it does impose a reasonable fall zone equal to the full vertical height of the Tower. Indeed, the required fall zone appears especially reasonable in the present circumstances because the proposed Tower could be located elsewhere on the Premises and thereby achieve full compliance with the By-Law’s fall zone requirement.

The Board’s safety concerns were supported by testimony during the hearings. The Project Engineer stated during the hearing that the Premises is located within a 120 mph wind zone. However, the proposed tower specifications as submitted by the Applicant call for structures rated to withstand a basic wind speed of only 110 mph. The Applicant failed to address the safety risks raised by the 10 mph “gap” in wind rating.

Abutters to the proposed tower also expressed concern about ice-throw and potential catastrophic collapse due to unintentional failure (several example occurrences were submitted) since the proposed tower would be located within approximately 83' of several residential properties and within 30' of an on-site parking lot shared by tenants and visitors of the Anchor Plaza (located at the Premises).

Visual Impacts

The purposes of the Personal Wireless Services Zoning By-Law include the preservation of "the character and appearance of the Town by protecting the scenic, historic, environmental and natural resources of the community." The By-Law also directs applicants to minimize and mitigate the adverse impact of the towers. In accordance with § V-E, 7.a, the Board requested and the Applicant conducted a crane test to depict the visual of the proposed facility on the Town. The test took place on Saturday, November 9, 2013 and was witnessed by members of the Board, residents, and other interested parties in the area. The Applicant also submitted photo simulations of the proposed tower, prepared by Caron & Associates Design, for the Board's consideration.

The Premises front on Lincoln St., which connects pockets of commercial development and residential neighborhoods with the historic downtown and waterfront area. The closest structure of similar height to the proposed facility is the Shipyard Smokestack at elevation 186', which is approximately 7/10ths of a mile to the west of the Premises. The majority of structures in the surrounding area are otherwise less than 35' in height. There are one and two-story single family homes to the immediate west and south (across the street) of the Premises, an assisted living facility and single-family homes to the north, and small commercial businesses to the east.

The Board reviewed plans and indicating that the proposed tower, at 120 feet, would be more visible than everything already in place. The Board also received statements from abutters indicating that the proposed tower would be incongruous with other structures in the area. Neighbors expressed concern about the visual impact of the facility on their residential properties. The Board heard testimony and received evidence to the effect that (1) the proposed wireless tower would be aesthetically unappealing, (2) the proposed wireless tower would be inconsistent with the residential character of the neighborhood, and (3) the proposed wireless tower would lead to declining property values in the area.

In response to these concerns, the Board asked the Applicant if it would consider a unipole or flagpole design, which would make the facility appear less cluttered. The Applicant rejected the idea because it might not provide additional coverage for DATA and LTE service. However, when a Board member asked if the Applicant had introduced anything in the record to suggest that there is a deficiency or gap in service with respect to Data and LTE service, the Applicant responded “No.” Thus, the Applicant agrees that it has not demonstrated any gap with respect to Data and LTE, but the Applicant has on the record rejected the lesser intrusive option of a unipole because it might not fulfill Data and LTE requirements, for which there is no deficiency or gap. The circularity of the Applicant’s position demonstrates its flaws.

FINDINGS:

PART I

The Board reviewed the special permit criteria and made the following findings:

a. Is use of the site in harmony with the general purpose and intent of this By-Law? NO.

The proposed use is not in harmony with the general purpose and intent of the By-law, as detailed in the Board's review of the requested use and dimensional variances for the proposed facility. The Board recalled the evidence, including photographs, studies, and anecdotes, submitted by neighbors and experts about the expected detrimental impacts from the proposed use. The Board found the market study information submitted by the applicant to be lacking. The abutters had instead cited a study from Florida that used more a robust analytical technique and regression analysis, which the Board found more persuasive. This study concluded that proximity to cell towers has a negative impact on nearby property values.

Abutters to the proposed project also commented during the hearing that the tower would negatively impact their views. The Board concurs based on its review of the crane test conducted in November and submitted photo simulations of the proposed facility. The externally mounted antenna are unsightly and when the Board asked the applicant to consider internally mounted antennas or unipole design, the applicant expressly rejected the idea.

The purpose of requiring a setback equal to the height of the proposed structure is for safety. The Board finds that the 120(+/-)-foot setback required by § V-E, 7.d is appropriate in that it would keep adjacent residential properties out of harm's way in the event of a catastrophic failure. The proposed 83' setback would derogate from the purpose of the By-Law.

Finally, the Board noted that the cell tower use is prohibited within residential zoning districts as it is not generally seen as compatible with residential uses. The subject property is adjacent to a neighborhood consisting of single-family homes.

b. Does the proposed use comply with the general purposes and standards of the relevant specific sections of this By-Law? NO.

The proposed use does not comply with the purposes or standards of the By-Law as cell towers are a prohibited use in Residence A and the proposed location does not meet the required setback of approximately 120'. In terms of the requested waiver from the maximum height limitation of 100', the Board found that the application did not include sufficient evidence that other carriers would be interested in co-location. Co-location is the only basis for the waiver; however, the Applicant repeatedly testified that no other carrier was interested in locating at the proposed facility.

c. Is the specific site an appropriate location for such use, structure, or conditions, compatible with the characteristics of the surrounding area? NO.

The use is incompatible with the surrounding residences and businesses.

d. Will the use as developed and operated create positive impacts or potential adverse impacts will be mitigated? NO.

The Applicant failed to prove that there will not be hazards related to the proposed inadequate setback or "fall-zone."

Will there be nuisance or serious hazard to vehicles or pedestrians? NO.

In its operating state, it is fair to say that there would be no nuisance or hazard to vehicles or pedestrians.

f. Will adequate and appropriate facilities exist or be provided for the proper operation of the proposed use? YES.

The Board agrees that there are adequate and appropriate facilities for the operation of the use.

g. Does the proposal meet accepted design standards and criteria for the functional design of facilities, structures, stormwater management, and site construction? YES.

The Board finds that the proposal meets accepted design standards as verified by peer review engineer, John Chessia, and conditioned by the Planning Board's site plan approval.

PART II

The Board then reviewed the application in light of the Telecommunications Act ("TCA"). Under the TCA, the Applicant has not shown that a gap in cellular coverage would exist, that could not be otherwise filled, if permission to construct a 120-foot monopole tower at the requested location on the Premises was denied. The TCA preserves local zoning authority over the siting and construction of wireless communication facilities, subject to five exceptions specified in the Act, 47 U.S.C. § 332(c)(7)(B).

The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not unreasonably discriminate among providers of functionally equivalent services;

The Board observed that there is no claim of discrimination by the Applicant on the record. The Board also pointed to other personal wireless services applications from this provider (New Cingular Wireless PCS LLC/AT&T) that have been approved by the Board, including the following:

a) 3 Elm Street, Dimensional Variance issued April 7, 2014;

b) 1 Lincoln Street, Special Permit A2 issued March 14, 2011; and

c) 9 Shipyard Drive, Special Permit A2 issued April 8, 2011.

The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

The Board determined that its actions would not prohibit or have the effect of prohibiting the provision of personal wireless services. See additional findings, infra.

A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

The Board acted within a reasonable period of time, as evidenced by the written continuance and extension agreements between the Applicant and the Board.

Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

The record on this application is voluminous and this Decision is in writing.

No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

There is nothing on the record to suggest that the Board's decision was made on the basis of environmental effects of radio frequency emissions. The Board has not discussed emissions during the proceedings or its deliberation.

Additional Findings: Effective Prohibition.

The Board identified two sets of circumstances where the courts have found a prohibition “in effect” under the TCA. The Board determined that neither set of circumstances applies in this matter.

1. The first set of circumstances is where the town sets or administers criteria that are impossible for any applicant to meet. The Board finds that the Town’s criteria do not create insurmountable or inappropriate barriers to telecommunication providers.

The Board found that there is no evidence to suggest that reasonable efforts to locate a personal wireless services facility in Town would be denied by the Board. In fact, the Board has approved three other cell towers and a number of stealth or host structure installations in recent years. Moreover, in appropriate circumstances the Board has the authority to grant use variances for the construction of towers outside of allowed districts. The Board recently permitted a commercial tower to be installed at 266 Whiting Street. The Board has not taken the position that it would never grant a variance outside the Overlay District or Industrial zones. There can be no credible claim of a blanket prohibition.

2. The second set of circumstances involves the situation where the applicant’s existing application is the only feasible plan to address a significant gap in coverage; in that case, denial of the application might amount to prohibiting personal wireless service. The Board finds that the Applicant has failed to demonstrate the existence of a significant gap, or that its proposal is the only feasible plan to address its asserted gap.

The Board finds that the Applicant has not met the burden of proof to establish that denial of the requested relief would constitute an effective prohibition of personal wireless services. The Board finds the Applicant's claims of a “significant gap” to be conclusory statements, not supported by facts. The physical size of the purported gap in coverage, as described in a memo from SAI Communications, dated June 9, 2014 in terms of street segments, cannot be distinguished from permissible “dead spots”. The Applicant did not provide a number of users affected by the alleged gap. The number of properties affected by the alleged gap is in dispute. The Board noted that there was significant contradictory evidence on the record from the Applicant, the Board's RF Engineer, and the abutters. In weighing the evidence, the Board relies on its expert's opinion that the Applicant's analysis is inadequate.

The Board finds that the Premises is not the only reasonable or most feasible location for a cell tower, and that the Applicant has not met its burden of proof to establish that its proposal is the only feasible plan to address an asserted significant gap in coverage. The Applicant did not consider alterations to existing facilities, either in the area or in surrounding communities, as a means of addressing its systems inadequacies. The AT&T site acquisition specialist testified that the carrier avoided properties with conservation land or wetlands, even though those properties might have addressed the alleged gap and may have also achieved a fall zone that would not go onto a neighbor’s property. The AT&T site acquisition specialist also testified that there was absolutely no written correspondence to document any of the inquiries made about alternative sites. The Applicant dismissed alteration of the Shipyard Smokestack, whereas the Board's RF Engineer concluded that antennas at elevation 186' AGL on the structure would improve the Applicant's services in the area. The Applicant likewise did not adequately consider or improperly dismissed reasonable alternative locations, such as 0 Planters Field Lane, Foster School (55 Downers Ave.), 1 Lincoln Street, Turkey Hill in Cohasset, and various on-site alternatives

Further, the Board finds that the Applicant’s proposal is not a feasible plan to address an asserted significant gap in coverage because the Premises is not centrally located within the purported gap. The proposed facility is not adequate to effectively eliminate the alleged gap because it does not even reach the area of allegedly unreliable service. And there are reasonable alternatives that the Applicant did not adequately consider.

DECISION:

The Board concludes that the Applicant has not shown that it is entitled to a Special Permit A2 or that a gap in cellular coverage would exist, that could not be otherwise filled, if permission to construct a 120' monopole tower at the requested location on the subject property was denied. Accordingly, Mr. Fisher made a motion seconded by Mr. McGrath that the Applicant’s request be denied. The Board considered the Applicant’s multiple requests for relief and then voted unanimously to DENY the requested Use Variance from § V-E, 4 and Dimensional Variance from the setback requirements of § V-E, 7.d of the Zoning By-Law and the Special Permit A2 to construct the proposed personal wireless services facility at the location specified by the Applicant on land of Anchor Plaza Realty Trust located at 207-225 Lincoln Street in Residence District A.

For the Zoning Board of Appeals,

Joseph W. Freeman, Chair

August 29, 2014

VARIANCE DECISION

IN THE MATTER OF:

Applicant: Global Tower Assets LLC & New Cingular Wireless PCS, LLC/AT&T

750 Park of Commerce Blvd. c/o KJK Wireless, LLC

Suite 300 127 Ridge Road

Boca Raton, FL 33487 Nashua, NH 03062

Property Owner: Anchor Plaza Realty Trust

134 East Howard Street

Quincy, MA 02169

Premises: 207-225 Lincoln Street

Hingham, MA 02043

Title Reference: Plymouth County Registry of Deeds Book 22660, Page 46

SUMMARY OF PROCEEDINGS:

This matter came before the Zoning Board of Appeals on the application of Global Tower Assets LLC and New Cingular Wireless PCS, LLC/AT&T (lessee – the “Applicant”) for a Use Variance from § V-E, 4 and a Dimensional Variance from the setback requirements of § V-E, 7.d of the Zoning By-Law and such other relief as necessary to construct a multi-user personal wireless services facility consisting of a 120' cell tower on land of Anchor Plaza Realty Trust located at 207-225 Lincoln Street in Residence District A.

Members of the community were also in attendance at all hearings, including representatives of an abutter’s group known as ACTION (“Against Cell Towers In Our Neighborhoods”).

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:

In areas where Towers are allowed, the Hingham Zoning By-Law, §V-E, 7.c, prohibits Tower heights from exceeding 100 feet, although the Board may waive this restriction to allow for co-location that would reduce the need for other Facilities. However, the Premises are not in an area where Towers are allowed.

In areas where Towers are allowed, the Hingham Zoning By-Law, §V-E, 7.d, prohibits Towers from being erected nearer to any property line than a distance equal to the vertical height of the Tower. The proposed Tower would be approximately 120' in height and located approximately 83' from the nearest residential property line, resulting in an incursion of 37’ into the required “fall zone” buffer, representing over 30% of the tower height.

DISCUSSION:

Coverage Gap

On-Premises Alternatives - The Board requested that the Applicant consider two alternative locations of the proposed Tower, both remaining within the identified Premises:

The Board noted that it should be up to town commissions and boards to make the assessment about environmental concerns and to evaluate possible tradeoffs that might benefit town residents.

Safety Concerns

Visual Impacts

FINDINGS:

PART I

Absent any preemptive authority under the Telecommunications Act of 1996 (“TCA”), as amended, the Applicant has failed to meet the state and local criteria for variance relief.

Circumstances exist relating to soil conditions, shape, or topography of such land or structures, and especially affecting such land or structures but not affecting generally the zoning district in which it is located. The Board was unable to make this finding.

The applicant failed to provide any evidence that the subject property differs from others in the area in terms of its soil, shape or topography. The Applicant's engineer also confirmed that there is no reason related soil, shape or topography of the site that would preclude relocation of the proposed cell tower to the commercial portion of the Premises, which would be further from abutting residential properties. Instead, the engineer noted the applicant's inability to obtain a lease for this area, which is not a permissible circumstance under the statute.

A literal enforcement of the provisions of the Zoning By-Law would involve substantial hardship, financial or otherwise, to the petitioner. The Board was unable to make this finding.

The subject property is currently used in accordance with the Zoning By-Law. “Hardship” would require a showing that the property owner would not reasonably be able to use the Premises for the purposes, or in the manner, allowed by zoning due to circumstances particularly affecting that property. The hardship requirement is stringent, especially when evaluated in the context of a “use” variance, which is what the Applicant has requested. The Applicant has not demonstrated that the property owner would be deprived of the use of the land if the requested relief were not granted.

Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning By-Law. The Board was unable to make this finding.

The Board recalled the evidence, including photographs, studies, and anecdotes, submitted by neighbors and experts about the expected detrimental impacts from the proposed use. The Board found the market study information submitted by the Applicant to be lacking. The abutters had instead cited a study from Florida that used more a robust analytical technique and regression analysis, which the Board found more persuasive. This study concluded that proximity to cell towers has a negative impact on nearby property values.

Abutters to the proposed project also commented during the hearing that the tower would negatively impact their views. The Board concurs based on its review of the crane test conducted in November and submitted photo simulations of the proposed facility. The externally mounted antennas are unsightly and when the Board asked the applicant to consider internally mounted antennas or unipole design, the applicant expressly rejected the idea.

The purpose of requiring a setback equal to the height of the proposed structure is for safety. The Board finds that the 120+/--foot setback is appropriate in that it would keep adjacent residential properties out of harm's way in the event of a catastrophic failure. The proposed 83' setback would derogate from the purpose of the By-Law.

PART II

Under the TCA, the Applicant has not shown that a gap in cellular coverage would exist, that could not be otherwise filled, if permission to construct a 120-foot monopole tower at the requested location on the Premises was denied.

The Board observed that the TCA preserves local zoning authority over the siting and construction of wireless communication facilities, subject to five exceptions specified in the Act, 47 U.S.C. § 332(c)(7)(B).

The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not unreasonably discriminate among providers of functionally equivalent services;

a) 3 Elm Street, Dimensional Variance issued April 7, 2014;

b) 1 Lincoln Street, Special Permit A2 issued March 14, 2011; and

c) 9 Shipyard Drive, Special Permit A2 issued April 8, 2011.

2. The regulation of the placement, construction, and modification of personal wireless service facilities by any Stat

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