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Home My WebLink AboutDecision - 122 FOSTER STREET 1/3/2018 (2) Town North Andover TaVw- ' , C' ;7p' ' ti ZONING BO ARD OF APPEALS s DFZ fi Albert P.Mani IN,Esq.,Chairman JAN Ellen P.McJntyre, Vice-Chah-mai? 0.Paul Koch Jr.,Esq.,Clerk Douglas Ludgin To Allan Cuscja '4ssodaze Members KORTH A UD Nathan J.Weitu'eich Alexwidria A.Jacobs,Esq. Ronn R.Faigen Notice of Decision Year 2017 APPLICANT: HEARING(S): Varsity Wireless Investors,LLC October 10,2017,November 14,2017,and December 20,2017 PROPERTY: PETITION: 122 Foster Street(Map 104.1),Parcel 26), 2017-010 North Andover,MA 01845 The North Andover Board of Appeals held a public hearing at the Town Hall, 120 Main Street, North Andover, MA on Tuesday, October 10,2017 at 7:30 PM,,Tuesday,November 14,2017 at 7:30 PM, and Wednesday,December 20,2017 at 7:00 PM.upon the appeal of Varsity Wireless Investors,LLC located at 122 Foster Street(Map 104.1),Parcel 26),North Andover,MA 01845. L PROCEDURAL HISTORY This is an appeal of the denial of the Inspector of Buildings to permit the installation, operation, and maintenance of a 130 foot monopole (135 feet to the top of faux branches)in an R-1 Zoning District. The Applicant requested variances in accordance with the following sections of the Zoning Bylaw: 0 8.9.3 c.v(l)(Setbacks)Actual Right Side 135 feet,required 600 feet, Variance of 465 feet. * 8.9.3-c.v(1)(Setbacks)Actual Front 173 feet,required 600 feet,Variance of 427 feet. * 8.9.3.c.v(1)(Fall Zone)Actual Right Side 135 feet,required 270 feet,Variance of 135 feet. 0 8.9.3.c.v(1)(Fall Zone)Actual Front 173 feet required 270 feet, Variance of 97 feet. 0 8.9-3.c(i)(Height General)Proposed 135 feet,allowed 45 feet,Variance of 90 feet. 0 8-9.3-c(ii)(Height Ground Mounted Facilities)Proposed 135 feet, allowed 45 feet,Variance of 90 feet. 0 8.9.4.a.ii(Camouflage by Vegetation)Required 50 feet. 0 8.9.4.a.iii(2)(Color of Facility)Proposed brown and green monopine,required brown or gray, Variance of color. Legal notices were sent to all the certified abutters provided by the Assessors Office of the Town of North Andover and were published in the Eagle-Tribune, a newspaper of general circulation in the Town of North Andover,on September 26,2017 and October 3,2017. The Applicant has requested that the Board make a Finding as a party aggrieved from the Inspector of Buildings also known as the Zoning Enforcement officer. PETITION:2017-010 Page 1 of 4 Town of North Andover ZONING BOARD OF APPEALS 1. The Board held public hearings and heard evidence presented by the Applicant and other parties on.October 10,2017,November 14,2017, and December 20,2017. E 2. At the November 14,2017 public hearing,the Applicant introduced a revised design for the proposed tower reducing the height from the initial proposal of 130 feet(135 feet to the top of the faux branches)down to 110 feet(115 feet to the top of the faux branches). 3. The Board held two site walks on October 22,2017 and November 18,2017. A visual demonstration for the reduced tower height was performed on November 18,2017. 4. The Board closed the public hearing on December 20,2017. H. DECISION The Board took the following action:upon a motion by D.Paul Koch,Jr. and seconded by Allan Cuscia,the Board voted four in favor(Cuscia,Jacobs,Koch, and Ludgin)and one against (McIntyre) (4-1)to grant the following relief and make the following determination: • 8.9.3.c.v(1)(Setbacks)Actual Right Side 135 feet,required 600 feet,Variance of 465 feet. • 8.9.3.c.v(1)(Setbacks)Actual.Front 173 feet,required 600 feet,Variance of 427 feet. • 8.9.3.c.v(1)(Fall Zone)Actual Right Sade 135 feet,required 230 feet,Variance of 95 feet. • 8.9.3.c.v(1)(Fall Zone)Actual Front 173 feet,required 270 feet,Variance of 97 feet. • 8.9.3.c(i)(Height General)Proposed 115 feet,allowed 45 feet,Variance of'70 feet. 8.9.3.c(ii)(Height Ground Mounted Facilities)Proposed 115 feet, allowed 45 feet,Variance of 70 feet. • 8.9.4.a.iii(2)(Color of Facility)Proposed brown and green monopine,required blue or gray, Variance of color. • 8.9.4.a.ii(Camouflage by Vegetation)Required 50 feet,the Applicant's proposed facility complies with the requirements of Section 8.9.4.a.ii(Camouflage by Vegetation)and therefore no variance is required from this section of the Bylaw. III. FINDINGSIDISCUSSION Pursuant to Sections 10.4 and 10.22.2 of the Bylaw,M.G.L. c.40A, § 10, and the Federal Telecommunications Act of 1996 ("TCA"),the Board determined that the Applicant's proposed facility("Facility") satisfies the required findings for grant of the requested variances as follows: 1. There are special conditions relating to the soil condition, shape, or topography of the land or structures for which the variances are requested, which especially affect the land or structures, but do not generally affect the zoning district in which it is located. There are unique circumstances relating to the topography and location of the Property that especially affect the Property,but that do not generally affect the zoning district(Residence 1 3 District(R-1)) in which the Property is located. Page 2 of 4 PE'1MON:2017-010 Town of North Andover ZONING BOARD OF APPEALS The Applicant submitted information and testimony demonstrating that there are no (i)pre- existing structures upon which either carrier can co-locate a facility, (ii)alternative technologies (e.g. distributed antenna systems or other similar small cell systems), or(iii)reasonably feasible alternative locations for a proposed tower to provide adequate coverage to the significant gaps in the carriers'networks. The Applicant provided information and testimony that the reduced tower height of 115 feet(to the top of the faux branches) is the minimum height necessary to provide ;E adequate coverage to both carriers' significant gaps in their wireless communications networks. Due to the shape of the Property,topography of the Property, and wetlands on or near the Property, in addition to the location of existing structures on the Property, a variance is required from the requirement that a tower be setback from any property line by at least two tunes the height of the tower including any appurtenances (equal to 230 feet). The Facility will be located on a partially cleared and topographically higher portion of the Property. Although the area of the Property exceeds eleven (11)acres,the lot is oddly shaped, includes wetlands,and significantly varying topography/elevation. The middle of the Property is approximately 30 feet lower than the proposed tower location. Due to wetlands on the Property in the northeast and along or near the entire rear of the Property, even if the tower were located toward the rear of the Property,the resulting necessary height increase of the tower to compensate for the significant drop in elevation,would still not allow the tower to comply with the required setbacks to the nearest property lanes. Based on the existing vegetation on the Property and the character,topography, and morphology of the surrounding area,the proposal to camouflage the tower as a pine tree is necessary to reduce the overall visual impact of the tower on the surrounding area. Therefore, in order to blend with the vegetation on and near the Property to the extent feasible,rather than a tower painted light blue or gray,the proposed tower and appurtenances must be painted or colored brown or green as appropriate(including the tower, faux branches,antennas, and tower mounted equipment, and faux pine needles)in order to avoid giving the Facility an unnatural appearance and defeating the proposed camouflage. 2. Due to those circumstances especially affecting the land or structure, literal enforcement of the provisions of the Bylaws would involve substantial hardship,financial or otherwise. The Board finds that substantial hardship will result if the provisions of the Bylaw are interpreted to preclude the proposed use on the subject Property. The Board incorporates the findings set forth above. Further, any proposed facility that can,address the targeted coverage area will not be able to comply with this setback requirement, and a literal enforcement of this provision would prohibit the location of the Facility. The Applicant provided information and testimony, confirmed by the Board's consultant,that the reduced tower height(115 feet to the top of the faux branches)is the minimum height necessary to provide adequate coverage to both carriers'significant gaps in their wireless communications networks. The Board's consultant also concurred with the Applicant that relocating the tower to Page 3 of 4 PETITION:2017.010 Town of North Andover ZONING BOARD OF APPEALS another location on.the Property that is at a lower ground elevation(above mean sea level)would require additional height to compensate for the loss in ground elevation. t Accordingly, the Board determined that a literal enforcement of the provisions of the Bylaw would prevent elimination of the identified significant gaps and thereby effectively prohibit the provision of personal wireless services to this area of North Andover. 3. Desirable relief may be granted without nulling or substantially derogatingfrom the intent or purpose of this Bylaw, and without substantial detriment to the public good. The Board determined that granting the requested variances will not nullify or substantially derogate from the intent or purpose of the Bylaw or be detrimental to the public good. In making these findings,the Board incorporates the findings set forth herein. The Facility complies with the requirements of the Bylaw because,to the extent feasible,the design(1)buffers the Facility to the surrounding area, (2) screens the Facility from view,and(3)utilizes an existing access corridor on the Property thereby minimizing required tree cutting. The Facility will promote the public good by providing enhanced wireless communications service to residents and businesses in North Andover for personal,business,and emergency purposes. Granting the requested relief will also not cause substantial detriment to the public good or impair the intent or purpose of the Bylaw. The Facility's design minimizes the overall height and camouflages the Facility to the extent feasible to.minimize any visual impacts. The Facility is unmanned and will only be visited one to two times per month for routine maintenance. It will not burden any municipal services. Further,the Facility will promote and conserve the convenience and general welfare of the inhabitants of the Town by enhancing wireless communications services within the Town for personil,business and emergency purposes. For the foregoing reasons the Facility meets the standards for the grant of the requested variances pursuant to the Bylaw and M.G.L. c. 40A, § 10. Therefore, the Board granted the requested variances and made the requested determination which combine to permit the Facility to be constructed as proposed and to the height as amended during the hearing process to allow a facility with a tower of a maximum height of 115 feet (inclusive of the faux branches). North Andover Zonin Board of Appeals Ellen P.McTutyre,Acting Chair D.Paul Koch Jr.,Esq. Allan Cuscia Douglas Ludgin Alexandria A.Jacobs,Esq. Page 4 of 4 PBTITION:2017-0I0