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Applicant: T-Mobile Northeast LLC
c/o Tower Resource Management
30 Lyman Street
Westborough, MA

Property Owner: LMB Realty Trust
Lisa Jacobson, Trustee

Premises: 100 Sharp Street
Hingham, MA 02043

Title Reference: Plymouth County Registry of Deeds
Land Court Certificate of Title No. 92841, Book 464, Page 41

This matter came before the Board of Appeals on the application of T-Mobile Northeast LLC (the “Applicant”), c/o Tower Resource Management, 30 Lyman Street, Westborough, MA for a Variance from §V-E 7 (d) along with a Special Permit A2 under §V-E with Site Plan Review to be done by the Planning Board under §I-G and §I-I of the Zoning By-Law and such other relief as necessary to construct a 160' wireless telecommunications facility consisting of a monopole within a 40' x 40' fenced in compound on a portion of the land at 100 Sharp Street (the “Property”), in the Industrial Park District.

Public Hearings were duly noticed and held before the Board of Appeals at the Hingham Town Hall commencing on October 4, 2010 and continuing on November 18, 2010 before a panel consisting of regular members Joseph W. Freeman, Chairman, W. Tod McGrath and Joseph M. Fisher. Site Plan Review was conducted by the Planning Board at the joint public hearing on November 18, 2010. Planning Board members present were Judy Sneath, Paul Healey, Susan Murphy and Sarah Corey. Attorney Francis D. Parisi of Parisi Law Associates, P.C, and Michael P. Johnson, Site Acquisition Specialist with Tower Resource Management represented the Applicant.

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 CEO of Isotrope, LLC, 505 Main Street, Medfield, MA 02052. Mr. Maxson has managed, leased, and built towers and holds a Massachusetts Contractor’s License. Isotrope, LLC (formerly Broadcast Signal Lab, LLP) provides wireless technology consulting services to municipalities considering wireless facility applications.

The Property consists of approximately 2.7 acres of land and is currently the site of an existing warehouse/storage building. T-Mobile is proposing to lease 1,600sq.ft. of land at the rear of the Property and construct a 40’ x 40’ compound that will be secured by a 6’ chain link fence with barbed wire. Inside the compound will be a wireless telecommunications facility consisting of a 160’ monopole tower with external antennas, amplifiers, coaxial cables, radio cabinet, power and telephone panels and a concrete equipment pad. Mounted to the monopole at a height of approximately 157’ (centerline) will be 9 panel antennas. Access to the compound is planned via a 10’ access easement gravel driveway along the east side of the existing building. The facility is unmanned and once it becomes fully operational normal and routine maintenance will be performed by technicians on a monthly basis. Therefore estimated vehicle trip generation rate is 2 trips per month.

During the initial hearing the Applicant stated that within the past year they had filed an application with the Weymouth Board of Zoning Appeals for a wireless telecommunications facility approximately ½ mile from this Property on Liberty Street in Weymouth. After numerous public hearings in Weymouth, which included testimony by the Applicant’s experts, peer review and testimony from abutters, the Weymouth Board of Zoning Appeals denied the application. Subsequently, the Applicant identified this Property in Hingham as a suitable alternative.

During the course of the initial hearing it was determined that the Applicant also needed relief in the form of a Variance from §V-E 7 (d) of the Zoning By-Law, which states “A Tower shall not be erected nearer to any property line than a distance equal to the vertical height of the Tower (inclusive of any appurtenant device), measured at the mean finished grade of the Tower base.” A Variance was subsequently applied for and advertised to be heard concurrently with the Special Permit A2. The Applicant submitted revised plans dated November 5, 2010 which showed that the monopole cannot be placed on the Property in compliance with the setback criteria and without encroaching on the wetlands or riverfront on the Property.

The Applicant’s experts gave testimony concerning its need to enhance service coverage in this area of Hingham and surrounding communities, 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 October 23, 2010. All members of the Board, along with Board’s independent reviewer Mr. Maxson, viewed the crane test on-site.

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 Applicant and the Town’s consultants also evaluated the possibility of a DAS as an alternative to the proposed tower with particular attention to whether a DAS would provide telecommunication service as adequately as the Applicant’s proposed facility. After review the Town’s consultant concluded that DAS networks are typically employed in densely populated or densely utilized areas and 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’, 120’, and 160’. Using the Zoning By-Laws 100’ cap, it would be anticipated that two carriers (at 90’ and 100’), or perhaps even a third (at 80’) could occupy the monopole. Below that, tree height might become an issue. Increasing above 100’, each additional ten feet could benefit a co-locator, therefore a monopole at 160’ could utilize up to seven wireless carriers which reduces the need for additional wireless facilities. 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.

During the course of the hearings no abutters spoke either for or against the application, nor did the Board receive any written correspondence in opposition to the application.

The Planning Board members reviewed the project’s compliance with the Site Plan Criteria as defined in §I-I (6) of the Zoning By-Law and voted to approve the Site Plan as presented, subject to the Board of Appeals approval of the requested relief. The Hingham Planning Board Site Plan Review dated November 29, 2010 is included in this decision as Exhibit A.

At the conclusion of the public hearing the Board of Appeals first considered whether the Applicant qualified for a Variance pursuant to M.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 current uses of the premises were “economically unfeasible.” The property could reasonably be used in the manner currently allowed by the Town 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, 586 F.3d 38 (1st Cir. 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 Applicants its requested 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 in coverage.

Therefore, 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 Sharp Street, Abington Street, Liberty Street and the surrounding area, 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;
3. The Applicant’s proposed telecommunications systems is consistent with the standards for the issuance of a Special Permit A2 and Variance under the Zoning By-Law provisions for telecommunications facilities, and the proposed site is appropriate for the facility; and
4. 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 160’. Accordingly, the Board of Appeals grants a waiver from the 100’ height limitation.

At the conclusion of the public hearing the Board of Appeals voted to GRANT the Special Permit A2 and Variance 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 monopole) is to be constructed in substantial accordance with the plans presented (prepared by T-Mobile Northeast, LLC, 15 Commerce Way, Norton, MA, and Aerial Spectrum, Inc., 20 Blanchard Road, Burlington, MA revised through November 5, 2010 stamped by Eamon T. Kiernan, Civil RPE and Kevin Blake, PLS) and the representations made at the public hearing.
2. The height of the monopole shall not exceed 160’ and shall not deviate from the plans as submitted. The Board grants a waiver from §V-E (7. c.) of the Zoning By-Law for the 160’ height to allow for co-location which will reduce the need for other facilities, which includes the Town’s public safety equipment which can be mounted above the 160’.
3. The Applicant shall reserve space for the Town to install its own public safety equipment, including an equipment cabinet, provided that the Town supplies the equipment to the Applicant at the time of the monopole’s installation.
4. If the Applicant receives requests from other licensed wireless communication providers to co-locate equipment or systems at the monopole, 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 monopole, provided that all co-locations must be consistent will the terms of this Special Permit A2 and Variance and no co-locating provider may claim priority, by virtue of this decision, over the Applicant (without the Applicant’s consent) for use or position on the monopole.
5. A Variance has been granted from §V-E 7 (d) of the Zoning By-Law.
6. Existing on-site vegetation shall be preserved to the maximum extent possible.
7. The monopole shall be 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 November 5, 2010.
10. All network interconnections from the monopole shall be via land lines, with no visible additional antennas to be installed.
11. The area surrounding the monopole 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 monopole 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 monopole the Applicant/Owner shall submit a letter to the Building Commissioner 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 monopole, 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 that would enable the Applicant to provide functionally-equivalent services in a less intrusive manner.

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
January 12, 2011