HomeMy WebLinkAboutApplication - 122 FOSTER STREET 9/13/2017 i
ANDERSON
BRIAN S.GRosSMAN KREIGER
bgrossman@andersonkreiger.co
T:617-621-6582
F:617-621-6682
September 13, 2017
Town Clerk Board of Appeals
Town Hall Town Hall
Town of North Andover Town of North Andover
120 Main Street 120 Main Street
North Andover,MA 01845 North Andover,MA 01845
APPLICANT: Varsity Wireless Investors, LLC
OWNER: Steven B. Young
SITE: 122 Foster Street,North Andover, Massachusetts
ASSESSOR'S PARCEL ID: 104.D-0026-0000
RELIEF SOUGHT: (1) Variances pursuant to Section 10.4 and 10.22.2 of the
Bylaw from:
(a) 8.9.3.c.i (Height, General),
(b) 8.9.3.c.ii (Height, Ground-Mounted Facilities),
(c) 8.9.3.c.v(1) (Setback from property line and residential
property),
(d) 8.9.4.a.ii (Camouflage by Vegetation), and
(e) 89.4.a.iii(2) (Color of Facility) of the Bylaw; and
(2) Any other relief required within the jurisdiction of the
Board of Appeals (All relief if and to the extent necessary,
all rights reserved under the Federal Telecommunications
Act of 1996 and otherwise)
Dear Town Clerk and Members of the Board of Appeals:
Pursuant to the applicable provisions of the Town of North Andover Zoning Bylaw(the
`Bylaw"), Massachusetts General Laws, and the Telecommunications Act of 1996, Varsity
Wireless Investors, LLC ("Varsity" or the "Applicant") applies to the Board of Appeals(the
"Board") for the above-captioned zoning relief to construct, operate and maintain a Wireless
Service Facility (the"Facility") including without limitation a 130 foot tower' camouflaged to
appear as a pine tree (the "Tower"),panel antennas, GPS antennas, remote radio heads, cables,
12-foot by 16-foot equipment shelter,radio communications equipment cabinets and proposed
generator for emergency backup power, located within a fenced compound, on the Property
located at 122 Foster Street,North Andover(the "Property"). The Property is located within the
Residence 1 Zoning District. The Facility will address significant gaps in wireless
communications network coverage for Verizon Wireless and AT&T.
135 feet to the top of the camouflage branches.
{A0447021.1.1__._
ANDERSON & KREIGER LLP 1 50 MILK STREET, 21ST FLOOR, BOSTON, MA 02109 1617.621.6500
Board of Appeals
Town of North Andover
September 13,2017
Page 2
Enclosed are two checks one in the amount of$250 for the filing fee and the other for$73.32 for
the cost of mailing, four sets of address labels for all abutters identified on the Certified Abutters
List, and the required number of stamps. Also enclosed are one original and eleven (11) copies
of this memorandum and the following materials:
1. Board of Appeals Application Form;
2. Plans for the proposed facility prepared by ProTerra Design Group, LLC., dated
July 5,2017 (the "Plans");
3. Radio frequency report prepared by C Squared Systems on behalf of Verizon
Wireless, dated July 27, 2017;
4. Radio frequency propagation maps prepared by C Squared Systems on behalf of
AT&T, dated July 27, 2017;
5. Alternatives Analysis;
6. Environmental Sound Assessment prepared by Modeling Specialties, dated July
10, 2017;
7. Tree Cover Assessment prepared by Forester William R. VanDoren(MA
Licensed Forester#380), dated June 4, 2015;
8. Zoning Map with Property identified;
9. FAA TOWAIR;
10. AT&T's Relevant FCC License Information;
11. Verizon Wireless' Relevant FCC License Information;
12. Radio Frequency Emissions Compliance Report, dated June 1, 2017,prepared by
Donald L. Haes, Jr., Ph.D., CHP;
13. Letter of Authorization;
14. Certified Abutters List;
15. Building Inspector's Determination Letter; and
16. Deed for the Property.
(A0447021.1)
Board of Appeals
Town of North Andover
September 13,2017
Page 3
II. THE PROPOSED FACILITY
Varsity builds, owns and operates the infrastructure that supports wireless telecommunications
services. Varsity provides its customers, and the communities they serve, with creative, cost
efficient solutions to the ever-growing demand for wireless ubiquity and bandwidth. Varsity's
founders, senior management and staff bring more than 50 years of wireless industry experience
to the company, including leadership positions with wireless operators, tower companies,
telecommunication infrastructure developers and the FCC. Varsity's exceptional human
resources are augmented with equity capital from investors who share the long-term view of
investing in responsible communications infrastructure.
Wireless telecommunications carriers are in the process of independently designing, constructing
and upgrading wireless telecommunications networks to serve areas in and around the Town of
North Andover. Such a network requires a grid of radio transmitting and receiving cell sites
located at varying distances depending on the location of existing and proposed installations in
relation to the surrounding topography. The radio transmitting and receiving facilities require a
path from the facility to the user on the ground. This requires the antennas to be located in a
location above the tree line where the signal is not obstructed or degraded by buildings or
topographical features.
Once constructed,the proposed Facility will be unmanned and will involve only periodic
maintenance visits. The only utilities required to operate the facility are electrical power as well
as telephone service which are currently available at the property. The traffic generated by the
facility will be one or two vehicle trips per month by maintenance and technical personnel to
ensure the telecommunications site remains in good working order. These visits will not result in
any material increase in traffic or disruption to patterns of access or egress that will cause
congestion hazards or cause a substantial change in the established neighborhood character. The
Applicant's maintenance personnel will make use of the existing access roads and parking at the
Property. The proposed Facility will not obstruct existing rights-of-way or pedestrian access and
will not change the daily conditions of access, egress,traffic, congestion hazard, or character of
the neighborhood. The installation will not require the addition of any new parking or loading
spaces.
The construction of the Applicant's Facility will enhance service coverage in the Town of North
Andover and surrounding communities. The enhancement of service coverage in the Town of
North Andover is desirable to the public convenience for personal use of wireless services and
for community safety in times of public crisis and natural disaster. Wireless communications
service also provides a convenience to residents and is an attractive feature and service to
businesses. In addition,the requested use at this location will not result in a change in the
appearance of the surrounding neighborhoods. The use is passive in nature and will not generate
any traffic, smoke, dust,heat, glare, discharge of noxious substances, nor will it pollute
waterways or groundwater. Once constructed, the facility will comply with all applicable local,
state and federal safety regulation.
JAD447021.1]
Board of Appeals
Town of North Andover
September 13,2017
Page 4
Moreover and most importantly:
i
1. The proposed Facility will promote and conserve the convenience
and general welfare of the inhabitants of the Town of North Andover by
enhancing telecommunications services within the Town.
2. The proposed Wireless Services Facility will lessen the danger from fire
and natural disasters by providing emergency communications in the event of
such fres and natural disasters.
3. The proposed Wireless Services Facility will preserve and increase the
amenities of the Town by enhancing telecommunications services.
4. The proposed Wireless Services Facility will facilitate the adequate
provision of transportation by improving mobile telecommunications for
business,personal and emergency uses.
Wireless service is important to public safety and convenience. As of the end of 2013, there were
almost 340 million wireless telephone users in the United States. See FCC's Seventeenth Report
to Congress on the State of Competition in the Commercial Mobile Radio Services Marketplace,
page 10 (December 18, 2014). There are now more wireless subscriptions than landline
telephone subscriptions in the United States, and the number of landline telephone subscribers
across the nation is declining each year while the number of wireless users increases.
For many Americans, wireless devices have become an indispensable replacement for
traditional landline telephones. Even when Americans maintain both types of telephone service,
Americans are opting increasingly to use wireless devices over their landline telephones. For
Americans living in"wireless-only"homes and for those others while away from their homes,
cell phones are often their only lifeline in emergencies. Almost 40 percent of American
households are now"wireless only."Id. The FCC estimates that approximately 70% of the
millions of 911 calls made daily are placed from cell phones, and that percentage is growing.
See http.-//Wi4,w-fqc.goy/g uideslwireless-91]-services.
As depicted on the Plans submitted with this application, Varsity proposes to construct a 130 foot
monopole tower to be camouflaged appear as a pine tree (sometimes referred to as a
"Monopine").2 The proposed Facility will structurally accommodate at least five wireless
communications carriers and their associated antennas, electronic equipment and cabling; and
fence at the base of the tower will be sufficient to accommodate ground based radio
communications equipment. As shown on the Plans that accompany this Application,AT&T's
panel antennas will be located at a height of 127 feet(antenna centerline) on the tower and
Verizon Wireless will locate its panel antennas at a height of 117 feet(antenna centerline) on the
2 In order to allow for a more natural appearance and camouflage,the faux branches will extend up to 135 feet.
{E (A0447021.1)
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Board of Appeals
Town of North Andover
September 13,2017
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tower. The antennas and cables will be"camouflaged" by the Monopine design within the E
meaning of§§ 8.9.2.d, 8.9.3.b.ii, 8.9.3.c.i, 8.9.4.a.ii, and 8.9.4.d.ii of the Bylaw.
The carriers' radio communications equipment cabinets or shelter along with an emergency
backup generator and 500 gallon propane tank will be located within the compound surrounded
by an 8 foot high wooden stockade fence. Power/telephone cabinets will be installed just outside
the fenced in compound. Additional details for the proposed Facility are set forth below and in
the enclosed plans.
Varsity anticipates that in the future additional wireless communications providers may also co-
locate wireless communications equipment at the Facility.
The Facility will be an unmanned, passive use,will not generate any appreciable noise, dust or
odors and will not adversely affect existing developed and natural environments around the
Town of North Andover. The location of the Facility will mitigate adverse visual impacts. The
Facility will enable users to access a state-of-the-art, fully digital system for voice
communication, messaging, and data transmission and reception.
III. FEDERAL TELECOMMUNICATIONS ACT OF 1996
Varsity's application is governed by the provisions of the Federal Telecommunications Act of
1996, which the United States Supreme Court has explained as follows:
Congress enacted the Telecommunications Act of 1996 {TCA) ... to promote competition
and higher quality in American telecommunications services and to "encourage the rapid
deployment of new telecommunications technologies." ... One of the means by which it
sought to accomplish these goals was reduction of the impediments imposed by local
governments upon the installation of facilities for wireless communications, such as
antenna towers. To this end, the TCA amended the Communications Act of 1934 ... to
include § 332(c)(7), which imposes specific limitations on the traditional authority of
state and local governments to regulate the location, construction, and modification of
such facilities ... 47 U.S.C. § 332(c)(7). Under this provision, local governments may
not"unreasonably discriminate among providers of functionally equivalent services," §
332(c)(7)(13)(i)(1),take actions that"prohibit or have the effect of prohibiting the
provision of personal wireless services," § 332(c)(7)(B)(i)(li), or limit the placement of
wireless facilities"on the basis of the environmental effects of radio frequency
emissions," § 332(c)(7)(B)(iv). They must act on requests for authorization to locate
wireless facilities "within a reasonable period of time," § 332(c)(7)(B)(ii), and each
decision denying such a request must"be in writing and supported by substantial
evidence contained in a written record," § 332(c)(7)(B)(iii).
City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115-116 (U.S. 2005) (internal
citations omitted).
{ao447021.1f
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Board of Appeals
Town of North Andover
September 13,2017
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The TCA was intended to provide for a pro-competitive, deregulatory national policy framework
designed to accelerate rapidly private sector deployment of advanced telecommunications and
information technologies to all Americans. The proposed Facility will help bring advanced and
improved telecommunications and information technologies to North Andover.
IV. VARIANCE RELIEF REQUESTED
Pursuant to Section 10.4 and 10.22.2 of the Bylaw, Varsity has filed this application requesting
variances from the following provisions of the Bylaw to permit the proposed Facility on the
Property:
(i) 89.3.c.i(Height, General):3 The proposed 130 foot Tower(135 feet to the top
of the proposed camouflage branches) exceeds the height of the average 1-story
buildings within three hundred feet of the Tower and the 35 foot height limit
permitted in the Residence 1 zoning district by more than 10 feet. However,
consistent with the requirements of this section permitting a Tower to exceed such
limitations, the Tower will be camouflaged to appear as a pine tree. Accordingly,
a variance from this provision is sought to the extent that the Board determines
that the proposed camouflaged monopine design does not permit the Facility to
exceed the height requirements of this section.
(ii) 8.9.3.c.ii (Height, Ground-Mounted Facilities):4 The proposed 130 foot Tower
(135 feet to the top of the proposed camouflage branches) exceeds the height of
3
Section 8.9.3.c provides the following"General"height limit:
Height,General.Regardless of the type of mount,wireless service facilities shall be no
higher than ten feet above the average height of buildings within 300 feet of the proposed
facility. In addition,the height of a wireless service facility shall not exceed by more than
10 feet the height limitations of the zoning district in which the facility is proposed to be
located,unless the facility is completely camouflaged such as within a flagpole,steeple,
chimney,or similar structure.Wireless service facilities may locate on a building that is
legally non confonning with respect to height,provided that the facilities do not project
above the existing building height.
4
Section 8.9.3.c provides the following"Ground-Mounted Facilities"height limit:
Height,Ground-Mounted Facilities. Ground-mounted wireless service facilities shall
not project higher than ten feet above the average building height or,if there are no
buildings within 300 feet,these facilities shall not project higher than ten feet above the
average tree canopy height,measured from ground level(AGL).If there are no buildings
within 300 feet of the proposed site of the facility,all ground-mounted wireless service
facilities shall be surrounded by dense tree growth to screen views of the facility in all
directions.These trees may be existing on the subject property or planted on site.
(A0447021.1) '.,.
Board of Appeals
Town of North Andover
September 13,2017
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the average 1-story buildings within three hundred feet of the Tower and the
average tree canopy by more than 10 feet.5
(iii) 8.9.3.c.v(l) (Setback from property line and residential property):G Pursuant
to this section of the Bylaw,the proposed 130 foot Tower (135 feet to the top of the proposed
camouflage branches)requires a minimum setback to the nearest property line of 270 feet (2
times 135 feet). The proposed Tower will be located 138 feet to the nearest property line (the
side lot line the east) and 173 feet to the front lot line (to the south). In addition, the proposed
Facility is within 600 feet of adjacent property lines of properties which are either zoned for, or
contain, residential and or educational uses of any types (the nearest residentially zoned or used
property is 56 feet from the compound associated with the Facility).
(iv) 8.9.4.a.ii (Camouflage by Vegetation):' The proposed Tower is camouflaged
from view through its design to appear as a pine tree. In addition, as depicted on the Sheet A-1
of the Plans and set forth in the Tree Assessment, the Facility is surrounded by existing trees,
vegetation and structures that shield the Facility from view in all directions with some modest
gaps due to development on the Property. As demonstrated by the"[m]ean tree height (basal-
area weighted ranged from 56.5-89.1 ft, while top height ranged from 68-106.3 ft." Accordingly,
the mean tree height exceeds the 50 foot requirement of this provision, and the top average tree
height complies with the 75% of height requirement. However, Varsity requests a variance from
5
Pursuant to the Tree Cover Assessment prepared by Forester William R.VanDoren(MA Licensed Forester
#380), dated June 4,2015 submitted herewith(the"Tree Assessment"),the"lm]ean tree height(basal-area weighted
ranged from 56.5-89.1 ft,while top height ranged from 68-106.3 ft."
6
Section 8.9.3.c.v(l) provides the following setbacks:
Setbacks All wireless service facilities and their equipment shelters shall comply with
the building setback provisions of the zoning district in which the facility is located. In
addition,the following setbacks shall be observed.
(1)In order to ensure public safety,the minimum distance from the base of any ground-
mounted wireless service facility to any property line,shall be 2x the height of the
facility/mount,including any antennas or other appurtenances.This set back is
considered the"fall zone".A minimum setback of 600 feet shall be required for all
wireless devices,antenna and their mounting structures,whether attached to a new or
existing structure, as measured from the adjacent property line of properties which are
either zoned for,or contain,residential and or educational uses of any types.
7
Section 8.9.4.a.ii provides as follows:
Camouflage by Vegetation. If wireless service facilities are not camouflaged fi-om
public viewing areas by existing buildings or structures,they shall be surrounded by
buffers of dense tree growth and under story vegetation in all directions to create an
effective year-round visual buffer. Ground-mounted wireless service facilities shall
provide year-round vertical evergreen vegetated buffer of 50 feet,or 75%of the overall
height of the structure,in all directions.Trees and vegetation may be existing on the
subject property or installed as part of the proposed facility or a combination of both.
Vegetation should be natural in appearance and consistent with surroundings.
(A0447021.1)
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Town of North Andover
September 13,2017
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the requirements of this provision to the extent the Board determines that the existing vegetation
does not comply with the height requirements or that such modest gaps in the surrounding
vegetation do not comply with the requirements of this section.
(v) 8.9.4.a.iii(2) (Color of Facility):8 As discussed herein, consistent with the
camouflage requirements of the Bylaw, Varsity proposes to camouflage the Tower to appear as a
pine tree. In order to maintain a natural appearance,the proposed Tower and appurtenances will
be painted or colored brown or green as appropriate (including the Tower, faux branches,
antennas and tower mounted equipment, and faux pine needles). Therefore,painting the portions
of the Tower that exceed the height of the surrounding vegetation either light blue or light gray
would give the Tower an unnatural appearance and defeat the proposed camouflage.
Accordingly,to the extent this requirement is interpreted to apply to the proposed camouflaged
Tower,Varsity has requested a variance from this provision of the Bylaw.
All of the above relief is requested, if and to the extent necessary, all rights reserved.
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"), Varsity's proposed Facility satisfies the required
findings for grant of a variance as follows:9
A. There are special conditions relating to the soil condition, shape or topography of
the land or structures for which the variance is 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 Residential 1 zoning
districts in which the Property is located. Due to the location of the significant gap in
both the Verizon Wireless and AT&T wireless coverage networks,the size, topography
and nature of the area within the Town of North Andover, as discussed in the Verizon
Wireless Radio frequency report and demonstrated by the Verizon Wireless and AT&T
radio frequency propagation maps, existing facilities are unable to provide adequate
coverage to this area of North Andover. As demonstrated by the Alternatives Analysis
submitted herewith,there are no pre-existing structures upon which either carrier can co-
locate a facility. In addition, as demonstrated by the Alternatives Analysis, the Property
is the only feasible property from which these significant gaps can be addressed.
8
Section 8.9.4.a.iii(2) provides in relevant pant:"To the extent that any wireless service facilities extend
above the height of the vegetation immediately surrounding it,they must be painted in a light gray or light blue hue
which blends with sky and clouds."
9
The Bylaw's required findings virtually the same as the criteria for grant of a variance prescribed by
M.G.L. c.40A, § 10. Differences between the Bylaw and the Massachusetts statute are immaterial and do not affect
the merits of AT&T's application or the Board's required findings.
(aa447021.1)
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Town of North Andover
September 13,2017
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The Facility camlot be sited on the Property in a manner that will comply with the 600
foot setback to residentially zoned or used properties. The targeted coverage area
depicted on the radio frequency propagation maps is residentially zoned. The nearest
non-residential district nearest the targeted area is the General Business district located
almost a mile to the west and close to an existing facility that includes both Verizon
Wireless and AT&T facilities. In addition,the district is comprised of two small lots that
are developed with no area upon which a tower could be located. In addition,the two
lots are surrounded by residentially zoned and utilized lots and therefore would not meet
be able to meet the required 600 foot setback.
Further, in order to comply with the 600 foot setback requirement, a proposed tower
would be required to be located in an area that does not have a residentially zoned or used
parcel (or used for education) within at least 25.9 acres of the proposed location. As
demonstrated in the Alternatives Analysis and by the Zoning Map submitted herewith,no
such parcel is available. As a result, any proposed facility that can address the targeted
coverage area will not be able to comply with this setback requirement.
The proposed Facility also requires a variance from the requirement that it be setback
from any property line by at least two times the height of the tower including any
appurtenances for a setback equal to 270 feet(an area equal to a minimum of 5.25 acres).
However, due to the shape, topography and wetlands on or near the Property, in addition
to the location of existing structures on the Property, a variance is required from this
requirement. Although the parcel is over 11 acres,the lot is oddly shaped, includes
wetlands and significantly varying topography.
The proposed Facility is located on a partially cleared and topographically higher portion
of the Property. The proposed location also takes advantage of significant amounts of
existing vegetation to help screen it from view while minimizing the removal of
vegetation.
The Property slopes away from the Tower location from over 180 feet(above mean sea
level C AMSL)) down to approximately 150 feet AMSL near the center of the Property.
The Property then rises again towards the rear,however due to the existence of wetlands
on the Property in the northeast and along or near the entire rear of the Property, even if a
Facility were located toward the rear of the Property, it would still not be able to comply
with the 270 foot setback to the nearest property lines.
The Property possesses unique radio frequency characteristics due to the topography of
the land and the location and elevation of the Property within the narrow geographic area
within which it is necessary for Verizon Wireless and AT&T to locate a facility. The
wireless communications networks being developed have been designed using
sophisticated radio frequency engineering tools. Radio frequency engineers use these
tools, computer engineering models, and key performance indicator data factoring in,
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Town of North Andover
September 13,2017
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without limitation, topography and population to determine areas of inadequate coverage
within each carriers respective wireless communications network. Based on this analysis,
there is a limited geographic area as a necessary location for a communications Facility to
remedy an existing significant gap in adequate coverage within the area surrounding the
Property.
As set forth in the Tree Assessment, the"[m]ean tree height(basal-area weighted ranged
from 56.5-89.1 ft, while top height ranged from 68-106.3 ft." The proposed height is
necessary to allow both AT&T and Verizon Wireless to provide coverage to the targeted
coverage area. Therefore,the proposed height will allow the carriers to clear obstructions
to provide coverage to the targeted area while also providing for potential co-location in
the future.
Based on the existing vegetation on the Property, and the character, topography, and
morphology of the surrounding area, Varsity proposes to camouflage the proposed Tower
as a pine tree. In order to maintain a natural appearance and blend with the nearby
vegetation on the Property, the proposed Tower and appurtenances will be painted or
colored brown or green as appropriate (including the Tower, faux branches, antennas and
tower mounted equipment, and faux pine needles). Therefore, painting the portions of
the Tower that exceed the height of the surrounding vegetation either light blue or light
gray would give the Tower an unnatural appearance, cause it to stand out from the
surrounding vegetation, and defeat the proposed camouflage.
Unless the requested relief is granted to allow Varsity to install, operate and maintain the
proposed Facility upon which Verizon Wireless and AT&T will co-locate, each carrier
will continue to have a significant gap in its wireless network coverage. The radio
frequency coverage maps and report of Verizon Wireless' radio frequency engineer,
submitted herewith, confirm that a wireless communications Facility located at the
Property is required to address the existing gap in wireless network coverage in the area.
The radio frequency engineers have determined that the requested height is necessary to
connect coverage from the proposed Facility with coverage from adjacent cell sites
within their respective existing and proposed wireless communications networks.
In the context of a utility service where the critical criteria in the development of each
Facility is its ability to integrate with a network of surrounding sites and, subsequently,
for each cluster of sites to function within a regional/national network, each site chosen
by a wireless communications carrier for a Facility possesses a unique location and
topographical characteristics. As noted in Nextel Communications of the Mid-Atlantic,
Inc. v. Town of Wayland, 231 F.Supp. 2d 396, 406-407 (D. Mass. 2002), the "need for
closing a significant gap in coverage, in order to avoid an effective prohibition of
wireless services, constitutes another unique circumstance when a zoning variance is
required." No existing structure is technically suitable to resolve the existing significant
gap in AT&T's wireless communications network. Due to the topography, size and
location of the other properties in area and the structures thereon,the proposed location is
(AO447021.1)
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Town of North Andover
September 13,2017
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uniquely suited for the proposed Facility to address AT&T's significant coverage gap at
issue. Accordingly, the proposed Facility on the Property is the only feasible location
from which AT&T can remedy this significant gap in coverage in its wireless
communications.network.
B. Due to those circumstances especially affecting the land or structure, literal
enforcement of the provisions of this Bylaw would involve substantial
hardship,financial or otherwise.
Substantial hardship will result if the provisions of the Bylaw are interpreted to preclude
the proposed use on the subject Property. Varsity's tenants require a Facility in this area
of North Andover to serve their existing and potential customers effectively, to satisfy the
mandate of its federal licenses and the federal statute and regulations pursuant to which
they is issued,to provide effective wireless communication services to the general public
in this area, and to improve competition in the telecommunications industry as set forth in
the Telecommunications Act of 1996. In addition,the property owner will suffer
financial hardship if deprived of the revenue from this Facility.
Verizon Wireless and AT&T each have an immediate and compelling need for a location
for its wireless communications facility in this area of North Andover. Varsity's
proposed Facility, and the co-location of Verizon Wireless and AT&T, is necessary to
address a significant gap in its wireless network coverage and is therefore consistent with
the TCA which was enacted by the U.S. Congress to institute a framework to promote
competition and innovation within the telecommunications industry. Under their Iicenses
from the FCC,Verizon Wireless and AT&T must provide reliable wireless
communications services in the area to be served by the license. In addition, subscriber
usage patterns and expectations have grown to demand increasingly dynamic and reliable
voice and data services.
These consumer demands require competing wireless communications providers to
identify and address existing significant gaps in wireless network coverage, or gaps that
result frorn increasing subscriber voice and data traffic that is not adequately and reliably
served by the existing network infrastructure. A carrier's failure to remedy network gaps
in a timely fashion can result in a significant loss of subscribers to competing
telecommunications carriers. As demonstrated in the RF Report and radio frequency
coverage maps provided herein, the proposed facility and corresponding relief requested
are necessary to remedy a significant gap Verizon Wireless' and AT&T's existing
wireless networks.
As set forth in the Alternatives Analysis, Varsity has investigated alternative sites in and
around the defined geographic area within which a facility must be located to fill these
gaps in its wireless network coverage and to function effectively within their tenants'
respective networks. Varsity determined that no existing structure or property in or near
the vicinity of the proposed Facility is available or otherwise feasible for the location of
(A0447021.1)
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Town of North Andover
September 13,2017
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its proposed Facility that will allow Verizon Wireless and AT&T to address this area of
North Andover. As demonstrated by the RF Report and coverage maps,without the
Facility at the proposed height and location at the Property,there will continue to be a
significant coverage gaps in Verizon Wireless' and AT&T's wireless communications
networks in and around this area of North Andover.
Where, as here, an application to build a wireless communications tower is designed to
fill a significant gap in coverage,the suitability of a specific parcel of land for that
purpose must be considered for purposes of determining hardship. See Wayland, 231.
F.Supp. 2d at 406-407 ("Under the Telecommunications Act, the Board cannot deny the
variance if in so doing it would have the effect of prohibiting wireless services. In other
words,the need for closing a significant gap in coverage, in order to avoid an effective
prohibition of wireless services, constitutes another unique circumstance when a zoning
variance is required.") (infernal citation omitted).10 The Property is uniquely well suited
ro This federal court precedent from Massachusetts is reinforced by state Supreme Court precedent in our sister
state of New Hampshire. In Daniels v.Laudonderry,953 A.2d 406(N.H.2008),the New Hampshire Supreme
Court applied New Hampshire's variance standards(which are similar to Massachusetts'test for a variance)to be
consistent with the TCA. The Court affirmed the grant of a use variance and two area variances for a 170'
monopole on property located in an agricultural-residential zone where wireless communication facilities were
otherwise not permitted. Id. at 411. In particular,the Court credited radio frequency coverage information showing
that the facility at the proposed location would fill a substantial gap in coverage. Id.at 410. In upholding the
variance relief,the Daniels court reconciled"our statutory variance criteria,specifically,the hardship standard,with
the overarching standards set forth in the TCA." Id. at 412. The Court held that:
[W]e believe that a broader,more inclusive view of hardship is required under these
circumstances. When an application to build a wireless telecommunications tower is designed
to fill a significant gap in coverage,the suitability of a specific parcel of land for that purpose
should be considered for purposes of determining hardship. The fact that a proposed location
is centrally located within the gap,has the correct topography,or is of an adequate size to
effectively eliminate the gap in coverage,are factors that may make it unique under the
umbrella of the TCA. Similarly,that there are no feasible alternatives to the proposed site
may also make it unique. Thus,although a parcel of land may be similar to the surrounding
properties in terms of its general characteristics, it may still be`unique' for purposes of
hardship when considered in light of the TCA.
Similarly,the Property is uniquely and ideally situated within the carriers'targeted coverage area,and Varsity has
demonstrated through its Alternatives Analysis attached hereto that there are no feasible alternatives that would fill
the identified coverage gaps. As the Daniels Court stated,"[wlith respect to the `uniqueness' factor,the evidence
before the ZBA demonstrated the necessity of a tower,at the height ultimately approved,on the proposed parcel,in
order to fill what could be considered a significant gap in coverage." Id. at 412-413. Similarly,Varsity's proposed
Tower at the Property is necessary to fill identified"significant gap in coverage"in North Andover.
rA0447021.1f
Board of Appeals
Town of North Andover
September 13,2017
Page 13
for a wireless communications facility due to its location and elevation in relation to the
significant coverage gap at issue. Given the lack of feasible alternatives, the literal
enforcement of the Bylaw will prevent both carriers from addressing significant coverage
gaps. A carrier's failure to address this significant gap in its network could potentially
result in the loss of subscribers and an inability to effectively compete for subscribers
with FCC licensed competitors in the market, contrary to the intent of the Bylaw and the
U.S. Congress in enacting the TCA. This constitutes a substantial hardship, financial and
otherwise.
Due to the size and location of the other properties in the area and located within the
Residential 1 district and the structures thereon, there are no parcels in the area on which
the necessary facility could be located without requiring similar relief from the Bylaw
and the requested variances are necessary to permit the proposed Facility on the Property.
The Facility cannot be sited on the Property in a manner that will comply with the 600
foot setback to residentially zoned or used properties. The targeted coverage area
depicted on the radio frequency propagation maps is residentially zoned. The nearest
non-residential district nearest the targeted area is the General Business district located
almost a mile to the west and close to an existing facility that includes both Verizon
Wireless and AT&T facilities. In addition,the district is comprised of two small lots that
are developed with no area upon which a tower could be located. In addition, the two
lots are surrounded by residentially zoned and utilized lots and therefore would not meet
be able to meet the required 600 foot setback.
Further, in order to comply with the 600 foot setback requirement, a proposed tower
would be required to be located in an area that does not have a residentially zoned or used
parcel (or used for education)within at least 259 acres of the proposed location. As
demonstrated in the Alternatives Analysis and by the Zoning Map submitted herewith,no
such parcel is available. As a result, 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 provision of personal wireless services.
The proposed Facility also requires a variance from the requirement that it be setback
from any property line by at least two times the height of the tower including any
appurtenances for a setback equal to 270 feet(an area equal to a minimum of 5.25 acres).
However, due to the shape,topography and wetlands on or near the Property, in addition
to the location of existing structures on the Property, a variance is required from this
requirement. Although the parcel is over 11 acres, the lot is oddly shaped, includes
wetlands and significantly varying topography.
The proposed Facility is located on a partially cleared and topographically higher portion
of the Property. The proposed location also takes advantage of significant amounts of
existing vegetation to help screen it from view while minimizing the removal of
vegetation.
(A0447021.1)
Board of Appeals
Town of North Andover
September 13,2017
Page 14
The Property slopes away from the Tower location from over 180 feet(above mean sea
level ("AMSL)) down to approximately 150 feet AMSL near the center of the Property.
The Property then rises again towards the rear,however due to the existence of wetlands
on the Property in the northeast and along or near the entire rear of the Property, even if a
Facility were located toward the rear of the Property, it would still not be able to comply
with the 270 foot setback to the nearest property lines.
The Property possesses unique radio frequency characteristics due to the topography of
the land and the location and elevation of the Property within the narrow geographic area
within which it is necessary for Verizon Wireless and AT&T to locate a facility. The
wireless communications networks being developed have been designed using
sophisticated radio frequency engineering tools. Radio frequency engineers use these
tools, computer engineering models, and key performance indicator data factoring in,
without limitation,topography and population to determine areas of inadequate coverage
within each carriers respective wireless communications network. Based on this analysis,
there is a limited geographic area as a necessary location for a communications Facility to
remedy an existing significant gap in adequate coverage within the area surrounding the
Property.
As set forth in the Tree Assessment,the"[m]ean tree height (basal-area weighted ranged
from 56.5-89.1 ft,while top height ranged from 68-106.3 ft." The proposed height is
necessary to allow both AT&T and Verizon Wireless to provide coverage to the targeted
coverage area. Therefore,the proposed height will allow the carriers to clear obstructions
to provide coverage to the targeted area while also providing for potential co-location in
the future.
Based on the existing vegetation on the Property, and the character, topography, and
morphology of the surrounding area, Varsity proposes to camouflage the proposed Tower
as a pine tree. In order to maintain a natural appearance and blend with the nearby
vegetation on the Property, the proposed Tower and appurtenances will be painted or
colored brown or green as appropriate (including the Tower, faux branches, antennas and
tower mounted equipment, and faux pine needles). Therefore,painting the portions of
the Tower that exceed the height of the surrounding vegetation either light blue or light
gray would give the Tower an unnatural appearance, cause it to stand out from the
surrounding vegetation, and defeat the proposed camouflage.
Accordingly, 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.
C. Desirable relief may be granted without nullifying or substantially derogating
from the intent or purpose of this Bylaw, and without substantial detriment to the
public good.
(A0447021.11
Board of Appeals
Town of North Andover
September 13,2017
Page 15
Granting the requested variances will not nullify or substantially derogate from the intent
or purpose of the Bylaw. As set forth herein,the proposed Facility complies with the
requirements of the Bylaw to the extent feasible. The design and location of the Facility
(1)buffers the wireless communication Facility to the surrounding area, (2) screen the
facilities from view as much as reasonably possible, (3)utilize an existing access corridor
on the property thereby minimizing required tree cutting, and (4)present an
environmentally sound and secure Facility.
Granting the requested relief will not be detrimental to the public good. The requested
variances will permit Varsity to construct the proposed Facility in the only feasible
location for theprovision of seamless wireless communications. 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.
In addition, granting the requested relief will not cause substantial detriment to the public
good or impair the intent or purpose of the Bylaw because:
1. The proposed use complies with the Bylaw to the extent reasonably
feasible and will reduce the number of new structures ultimately needed to
provide wireless communication services in the surrounding area by
providing opportunities for co-location.
2. The proposed location is reasonably adaptable to the proposed wireless
communications use.
3. The proposed Facility is designed to be at the minimum height necessary
to provide adequate coverage to the area and keep potential visual impacts
to a minimum.
4. The Facility will comply in all respects with RF emission standards
established by the FCC.
S. The proposed Facility will not cause any adverse effect on the value of
land and buildings in the neighborhood or on the amenities thereof. The
proposed use is passive, requires no employees on the premises, and has
no characteristics that are incompatible with the Residential 1 zoning
district. Specifically, it will generate only about two vehicle trips per
month by a service technician for routine maintenance, will be served by
standard electrical and telephone service, and requires no water, septic, or
other town services.
6. The proposed Facility will promote and conserve the convenience and
{A0447621.1}
Board of Appeals
Town of North Andover
September 13,2617
Page 16
general welfare of the inhabitants of the Town by enhancing wireless
communications services within the Town.
7. The proposed Facility will lessen the danger from fire and natural disasters
by providing emergency communications in the event of such fires and
natural disasters.
8. The proposed Facility will involve no overcrowding of land or undue
concentration of population because it is an unmanned facility.
9. The proposed Facility will preserve and increase the amenities of the
Town by enhancing wireless communications services.
10. The proposed Facility will involve no adverse effects on public and
private water supplies and indeed will utilize no water at all.
11. The proposed Facility will facilitate the adequate provision of
transportation by improving mobile telecommunications for business,
personal, commuters and emergency uses.
12. The proposed Facility will involve no adverse effects on drainage, schools,
parks, open space, or other public requirements.
13. The proposed Facility will involve no excessive noise or pollution to the
environment.
14. The proposed Facility will involve no adverse effects on historic sites.
15. The proposed Facility will be an appropriate use of land within the Town.
For the foregoing reasons the proposed Facility meets the standards for the grant of the
requested variance, to the extent necessary, pursuant to the Bylaw and M.G.L. c. 40A, §
10. However, even if the'Board determines that the above local and state standards are
not met, as discussed herein, approval of the requested variance is appropriate to avoid an
effective prohibition of personal wireless services pursuant to the TCA. See Wayland,
231 F.Supp. 2d at 406-407.
(A0447021.1)
Board of Appeals
Town of North Andover
September 13,2017
Page 17
V. CONCLUSION
Varsity respectfully requests that the Board grant the requested zoning relief, and any other
zoning relief required, for the proposed Facility. Varsity further respectfully requests that the
Board schedule this application for a public hearing at its next meeting for which proper notice
can be given.
If I can provide any further information regarding this application, please let me know.
Sincerely,
Enclosures
{A0447021.1)