HomeMy WebLinkAboutMiscellaneous - 1267 OSGOOD STREET 4/30/2018 (4) r �
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.P• RECEIVED
• �SttYY� JOYCE BRADSHAW
TOWN CLERK
NORTH ANDOVER
1000 AUG - I P 12: 4 5
North Andover
Zoning Board of Appeals
27 Charles Street
North Andover, Massachusetts 01845
Phone (978) 688-9541 Fax(978) 688-9542
Any appeals shall be sled NOTICE OF DECISION
within(20)days after the Year 2000
date of filing ofthis notice Property at: 1267 Osgood Street
in the office ofthe Town Clerk.
NAME: AT&T Wireless,PCS,LLC.; d/b/a AT&T Wireless Services, DATE: 7/27/2000
400 Blue Hill Drive, Suite 100, Westwood MA 02090
ADDRESS: for premises at: 1267 Osgood Street PETITION: 017-2000
North Andover,MA 01845 HEARING: 5/9/2000,6/20,7/11 &
Special Meeting on 7/24/2000
The Board of Appeals held a special meeting on Monday afternoon,July 24,2000 at 4:30 PM upon the
application of AT&T Wireless,PCS,LLC,d/b/a AT&T Wireless Services, 400 Blue Hill Drive, Suite
100,Westwood,MA.for premises at: 1267 Osgood Street,North Andover,MA. Petitioner is
requesting a variance from the requirements of Section 8.9.3. c.i. and 8.9.3.c.ii(restricting height to 10'
above the average building height within 300' or,if no such buildings, 10'above average tree canopy
height);Section 8.9.3. c.ii,8.9.4.a.ii,and 8.9.4.d.ii(requiring dense tree growth to screen views); Section
8.9.3.c.v.I (requiring flagpole setback 2x its height and 300'from habitable dwelling or business); Section
8.9.4.a.iii.2(restricting color above regulation to light grey or blue); Section 8.9.4,e.ii(requiring fully
enclosed containment for use of any hazardous materials), Section 8.9.9.c and 8.9.1 Lb(requiring escrow
accounts for removal and maintenance activities);in order to construct a telecommunications wireless
service facility within the R-2 Zoning District.
The following members were present: Walter F. Soule,Robert Ford,John Pallone,Ellen McIntyre, George
Earley.
Upon a motion made by Robert Ford to grant the petitioner the variances from the height limitation from
Section 8.9.3.c.i.and 8.9.3.c.ii to a height of 120' and also a variance from the setback requirement under
Section 8.9.3.c.i. (Restricting height to 10'above the average building height within 300'or,if no such
buildings, 10'above average tree canopy height),on the condition that favorable action is taken by the
Board on the remaining relief required by the petitioner,and also based upon that granting of the Special
Permit by the Special Permit granting authority(Planning Board),2°d by John Pallone, no votes were cast
in favor,therefore,the motion was DENIED,the following Board members voted in opposition: Robert
Ford, Walter F. Soule, John Pallone, George Earley,Ellen McIntyre:
Upon a motion made by John Pallone to DENY the request of a variance from Section 8.9.3.c.i. that
restricts the height to 10'above the average building height or tree canopy height because the requested
Page 1 of 2
RECEIVED
Decision of: AT&T Wireless,PCS,LLC.for premises at: 1267 Osgood Street,NorjQ'AQ5A A.N
AW
TO C�
NORTH ANDOVER
1000 AUG - P 12: 4 5
variances would be a detriment to the neighborhood and they have not established(explored)an existing
structure that would serve the purpose in another location, 2nd by George Earley, motion DENIED,vote
unanimous:RF/WFS/JP/GE/EM.
Upon a motion made by John Pallone and 2nd by Ellen McIntyre to DENY the request for a variance from
Section 8.9.3.c.ii,&8.9.4.a.ii,8.9.4.dii,(requiring dense tree growth to screen views),because the
requested variances would be a detriment to the neighborhood,vote unanimous: RF/WFS/JP/GE/EM.
Upon a motion made by John Pallone and 2nd by Ellen McIntyre to DENY the request for a variance from
Section 8.9.3.c.v.1 (requiring flagpole setback 2x its height and 300'from habitable dwelling or business),
because the requested variances would be a detriment to the neighborhood,vote unanimous:
RF/WFS/JP/GE/EM.
Upon a motion made by Robert Ford and 2nd by John Pallone to GRANT a variance from Section
8.9.4.a.iii.2(restricting color above vegetation to light grey or blue)on the condition that no other color be
required,vote unanimous:RF/WFS/JP/GE/EM.
Upon a motion made by John Pallone and 2nd by George Earley to DENY the request for a variance from
Section 8.9.4.e.ii(requiring fully enclosed containment for use of any hazardous materials)because the
requested variance would be a detriment to the neighborhood,vote unanimous:RF/WFS/JP/GE/EM.
Upon a motion made by John Pallone and 2❑d by George Earley to DENY the request for a variance from
Section 8.9.9.c and 8.9.1 Lb(requiring escrow accounts for removal and maintenance activities),because
the requested variance would be a detriment to the neighborhood,vote unanimous: RF/WFS/JP/GE/EM.
Furthermore,ifthe rights authorized by the variance are not exercised within one(1)year ofthe date of the grant,they shall lapse,and
maybe re-established only after notice,and anew hearing. Furthermore,if a Special Permit granted under the provisions contained
herein shall be deemed to have lapsed after a two(2)year period from the date on which the Special Permit was granted unless
substantial use or construction has commenced,they shall lapse and may be re-established only after notice,and a new hearing.
By order of the Zoning Board of Appeals,
CG -
William J. 'uilivan, Chairman
ml/decisions2000/28/29
Page 2 of 2
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NORTH ANDOVER
OFFICE OF .
THE ZONING BOARD OF APPEALS
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27 CHARLES STREET
NORTH ANDOVER,MASSACHUSETTS 01845
FAX(978)688-9542
Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior
Center, 120R Main St.,North Andover,MA., on Tuesday the 20a`day of June, 2000 at
7:30 PM to all parties interested in the appeal of AT&T Wireless, PCS, LLC, d/b/a
'AT&T Wireless Services, 400 Blue Hill Drive, Suite 100, Westwood MA 02090, for
premises at: 1267 Osgood St.,North Andover,MA for a Variance from the requirements
of Section 8.9.3.c.i. and 8.9.3. c.ii (restricting height to 10' above the average building
height within 300' or,if no.such buildings, 10' above average tree canopy height);
Section 8.9.3. c.ii, S.9.4.a.ii, and 8.9.4.d.ii (requiring dense tree growth to screen views);
Section 8.9.3.c.v.1 (requiring flagpole setback 2x its height and 300' from habitable
dwelling or business);.Section 8.9.4.a.iii.2 (restricting color above vegetation to light grey
or blue); Section 8.9.4.e.ii(requiring fully enclosed containment for use of any hazardous
materials), Section 8.9.9.c and 8.9.l l.b (requiring escrow accounts for removal and
maintenance activities); in order to construct a telecommunications wireless service
facility.
Said premises affected is property with frontage on the West side of Osgood St. within
the R-2 Zoning District.
Plans are available for review at the office of the Building Dept., 27 Charles Street,North
Andover, MA Monday through Thursday from the hours of 9:00 AM to 1:00 PM.
By order of the Board of Appeals,
William J. Sullivan, Chairman
i
Published in the Eagle Tribune on May 30 & June 6, 2000.
N l/Legalno2000_/_16
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BOARD OF.APPEALS 688-9541 BUILDINGS 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
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NORTH ANDOVER
OFFICE OF
THE ZONING BOARD OF APPEALS
27 CHARLES STREET
NORTH ANDOVER,MASSACHUSETTS 01845
FAX(978)688-9542
Notice is hereby given that the Board of Appeals will hold a public hearing at the Senior
Center, 120R Main St.,North Andover, MA., on Tuesday the 20a`da-Y of June 2000 at
7:30 PM to all parties interested in the appeal of AT&T Wireless, PCS, LLC, d/b/a
AT&T Wireless Services, 400 Blue Hill Drive, Suite 100, Westwood MA 02090, for
premises at: 1267 Osgood St.,North Andover, MA for a Variance from the requirements
of Section 8.9.3.c.i. and 8.9.3. c.ii (restricting height to 10' above the average building
height within 3
g t 00 or, if no such buildings, 10' above average tree canopy height);
Section 8.9.3. c.ii, 8.9.44.ii, and 8.9.4.d.ii (requiring dense tree growth to screen views);
Section 8.9.3.c.v.1r
( equirmg flagpole setback 2x its height and 300 from habitable
dwelling or business); Section 8.9.4.a.iii.2 (restricting color above vegetation to light grey
or blue); Section 8.9.4.e.ii (requiring fully enclosed containment for use of any hazardous
materials), Section 8.9.9.c and 8.9.1 Lb (requiring escrow accounts for removal and
maintenance activities); in order t6 construct a telecommunications wireless service
facility.
Said premises affected is property with frontage on the West side of Osgood St. within
the R-2 Zoning District.
Plans are available for review at the office of the Building Dept., 27 Charles Street,North
Andover, MA Monday through Thursday from the hours of 9:00 AM to 1:00 PM.
r
By order of the Board of Appeals,
William J. Sullivan, Chairman
Published in the Eagle Tribune on May 30 & June 6, 2000.
Ml/Legalno2000/16
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BOARD OF.APPEALS 688-9541 BUILDINGS 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535
1
10
Town of North Andover , "ORT1y
OFFICE OF �/ os°•'"`° '•,�0
COMMUNITY DEVELOPMENT AND SE VICES p
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30 School Street
North Andover,Massachusetts 0 18 5 '°••.,°.�•'`�5
WILLIAM J.SCOTT - dSAr—tSf
NOTICE
� c,
Director
1yOTICE OF DECISION ry o
—i—c
Any appeal shall be filled
within (20) days after the
date of filling this Notice _ -y= 17-1
in the Office of the Town
Clerk.
Date April 21,1999
Date of Hearing MArch 16, 1999, April 6, 199S-
April 20, 1999
Petition of AT & T wireless
Premises affected5 Boston.Hill Road
Referring to the above petition for a special permit from the
requirements of the North Andover zoning Bylaw Section 8.9
so as to allow to install and operate, on a parcel of privately owned land at 5 Boston
Hill Road wireless communications facilities consisting of an antenna array& certain radio elect
nic & telephone equipment
After a public hearing given on the above date, the Planning Board
voted to APPROVE the Special Permit
based upon the following conditions:
1.
CC: Director of Public Works Richard S.Rowen, Chairman
Building Inspector
Natural Resource/Land Use Planner Alison Lescarbeau, V. Chairman
Health Sanitarian
Assessors John Simons. Clerk
Police Chief
Fire Chief Richard N-ardella
Applicant
Engineer Joseph V. Mahoney
Towns Outside Consultant
File Planning Board
1 Interested Parties
CONSERVATION.(978)688 9530 • HE.aLTH-(978)638-9540 PLANNING-(978)688-9535
AT & T Wireless Services—5 Boston Hill Road �f
Special Permit
The Planning Board herein approves the Special Permit to install and operate, on a parcel
of privately owned land at 5 Boston Hill Road wireless communications facilities
consisting of an antenna array (to be mounted to existing steel lattice tower) and certain
radio electronic and telephone equipment (to be installed on second floor of existing
building that serves as the base of the lattice tower) in the Village Residential Zoning
District. This Special Permit was requested by AT & T Wireless PCS, 400 Blue Hill
Drive, Suite 100, Westwood, NIA 02090-2161. This application and additional
documentation as cited herein was filed with the Planning Board on February 16, 1999
with subsequent submittals on file.
The Planning Board makes the following findings as required by the North Andover
Zoning Bylaw Section 8.9:
FINDINGS OF FACT:
1. The specific site is an appropriate location for the project as it is being collocated on
an existing wireless location.
2. The use as developed will not adversely affect the neighborhood as indicated by the
analysis conducted by AT&T and Donald Haes.
3. The carrier has demonstrated that the facility is necessary in order to provide adequate
service to the public.
4. The plan meets the requirements of the Wireless Seryice Facilities by-law section 8.9.
5. Adequate and appropriate facilities will be provided for the proper operation of the
proposed use.
Finally the Planning Board finds that this project generally complies with the Town of
North Andover Zoning Bylaw requirements as listed in Section 8.9 but requires conditions
in order to be fully in compliance. The Planning Board hereby grants an approval to the
applicant provided the following conditions are met:
SPECIAL CONDITIONS:
1: Discontinuance Abandonment
a) At such time that a licensed carrier plans to abandon or dis�4ntinue operation of a
wireless service facility, such carrier will notify the Town by certified US mail of
the proposed date of abandonment or discontinuation of operations. Such notice
shall be given no less than 30 days prior to abandonment or discontinuation of
AT&T Wireless Services—5 Boston Hill Road 1
1
operations. In the event that a licensed carrier fails to give such notice,rthe wireless
service facility shall be considered abandoned upon discontinuation ofoperations.
b) Upon abandonment or discontinuation of use, the carrier shall physically remove
the wireless service facility within 90 days from the date of abandonment or
discontinuation of use. "Physically remove" shall include, but not be limited to:
i) Removal of antennas, mount, equipment shelters and security barriers from the
subject property.
ii) Proper disposal of the waste materials from the site in accordance with local
and state solid waste disposal regulations.
iii) Restoring the location of the wireless service facility to its natural condition,
except that any landscaping and grading shall remain the after-condition.
c) As a condition of any special permit for the placement, construction or
modification of a wireless service facility, a carrier shall place into escrow a sum of
money to cover the costs of removing the facility from the subject property. Said
amount shall be certified by an engineer, architect or other qualified professional
registered to practice in the Commonwealth of Massachusetts. Said funds shall be
held by an independent escrow agent to be appointed by the carrier and the SPGA.
The carrier shall authorize and, as necessary, shall obtain the authorization of the
owner of the property to allow the escrow agent to enter upon the subject property
to remove the facility when the facility has been abandoned or discontinued. In the
event the posted amount does not cover the cost of demolition and/or removal the
Town may place a lien upon the property covering the difference in cost.
d) A facility shall be deemed to be abandoned or discontinued if it has not been used
for the purpose for which it was originally constructed for a period of six (6)
months or more. Once abandonment or discontinuance has occurred, the carrier
shall remove the facility from the subject property within ninety days. In the event
that the carrier fails to remove the facility, the town shall give notice to the carrier
and the independent escrow agent that the facility shall be removed by the escrow
agent forthwith and the escrow agent, after affording written notice seven days in
advance to the carrier, shall remove the facility.
2) Performance Guarantees
a) Insurance in a reasonable amount*determined and approved by the SPGA after
consultation at the expense of the applicant with one (1) or more insurance
companies shall be in force to cover damage from the structure, damage from
transmissions and other site liabilities. Annual proof of said insurance must be filed
with the SPGA.
b) Funds, sufficient in the opinion of the SPGA to cover annual maintenance of the
facility, shall be placed into escrow and shall be held by the independent escrow
agent who shall be authorized to expend the funds for the maintenance of the
AT&T Wireless Services—5 Boston Hill Road 2
facility on terms to be agreed upon by the carrier and the SPGA as a cQtidition of
approval of the special permit.
c) Annual certification demonstrating continuing compliance with the standards of the
Federal Communications Commission, Federal Aviation Administration and the
American National Standards Institute shall be filed with the SPGA by the Special
Permit holder.
3) Term of Special Permit. _
a) A Special Permit issued for any wireless service facility shall be valid for three (3)
years. The special permit may be renewed under the same criteria as the original
special permit, provided that the application for renewal of the special permit is
made prior to the expiration date of the original or any renewed special permit.
Additional measures governing the administration of the special permit are found
in Section 10.3 of the Zoning Bylaw.
b) After the facility is in operation, the applicant shall submit to the SPGA, within 90
days of beginning operations and at annual intervals from the date of issuance of
the Special Permit, preexistent and current RFR measurements. Such
measurements shall be signed and certified by an RF engineer, stating that RER
measurements are accurate and are in compliance or why the measurements fail to
comply with all applicable FCC Guidelines as specified in Section 3.9(4)(c)(1)
RFR Filing Requirements of this Bylaw. The measurements shall be submitted for
both the applicant and all co-locators.
c) After the wireless service facility is in operation the applicant shall submit to the
SPGA; within 90 days of the issuance of the Special Permit, and at annual intervals
from the date of issuance of the Special Permit, preexistent and current
measurements of acoustic noise from the wireless service facility Such
measurements shall be certified and signed by an acoustical engineer, stating that
noise measurements are accurate and meet the Noise Standards sub-section
6.13.14.5 of this Bylaw. The applicant shall forward to a separate consulting
engineer, selected by the Town, the above materials for review. The applicant
shall pay for such review.
d) The applicant and co-applicant or their successor in interest shall maintain the
wireless service facility in good condition. Such maintenance shall include, but
shall not be limited to, painting, structural integrity of the mount and security
barrier and maintenance of the buffer and landscaping.
4. Prior to the endorsement of the plans by the Planning Board, the applicant
must comply with the following conditions:
a) The applicant shall provide a map indicating the intended locations for testing
as required above.
AT&T Wireless Services—5 Boston Hill Road 3
b) A bond in the amount of$5,000 shall be posted for the purpose of/tnsuring that
a final as-built plan showing the location of all on-site structures. The bond is
also in place to insure that the site is constructed in accordance with the
approved plan. This bond shall be in the form of a check made out to the
Town of North Andover. This check will then be deposited into an interest
bearing escrow account.
5. Prior to the start of construction:
a) A construction schedule shall be submitted to the Planning Staff for the
purpose of tracking the construction and informing the public of
anticipated activities on the site.
c) The applicant shall determine the preexisting conditions of the noise levels
emanating from the site are to determine the baseline noise conditions of the
site area. The noise survey will provide evidence of the origin of surrounding
noise and therefore a baseline condition from which the applicant determine
their increases. The noise levels shall not increase the broadband level by more
then 10 dB (a) above the ambient levels or produce a"pure tone" condition as
set forth in DAQC Policy 90-001, the guideline for 310 CMR 7.10. The
applicant may use relevant professional sound emitting data from the prior
building use to build a baseline based on prior use of the building and grounds.
References to sources for data must be included in the material.
d) The applicant shall provide the necessary escrow accounts and insurance as
required in the above sections.
3. 'Prior to FORM U verification (Building Permit Issuance):
a) The final site plan mylars must be endorsed and three (3) copies of the
signed plans must be delivered to the Planning Department.
b) A certified copy of the recorded decision must be submitted to the Planning
Department.
4. Prior to verification of the Certificate of Use and Occupancy:
a) The applicant must submit a letter from the architect or engineer of the project
stating that the construction and operations substantially-comply with the plans
referenced at the end of this decision as endorsed by the Planning Board.
b) All lighting shall have underground wiring and shall.be so arranged that all
direct rays from such lighting falls entirely within thi' ite and shall be
shielded or recessed so as not to shine upon abutting properties or streets.
The Planning Office must approve any changes to the approved lighting
plan as submitted by the applicant.
AT T Wireless Services—5 Boston Hill Road 4
5. Prior to the final release of security: A final as-built plan showing final
construction and location of the wireless hardware shall be submitted to and
reviewed by the Planning Staff.
6. Any stockpiling of materials (dirt, wood, construction material, etc.) must be
shown on a plan and reviewed and approved by the Planning Staff. Any approved
piles must remain covered at all times to minimize any dust problems that may
occur with adjacent properties. Any stock piles to remain for longer than one
week must be fenced off and covered.
7. In an effort to reduce noise levels, the applicant shall keep in optimum working
order, through regular maintenance, any and all equipment that shall emanate
sounds from the structures or site.
8. No equipment or other equipment that will emanate noise-exceeding levels cited
herein shall be placed on the exterior of the structure. Such equipment shall be
enclosed as shown on the plans.
9. All site lighting shall provide security for the site and structures however it must
not create any glare or project any light onto adjacent residential properties.
12. The contractor shall contact Dig Safe at least 72 hours prior to commencing any
excavation.
13. The provisions of this conditional approval shall apply to and be binding upon the
applicant, its employees and all successors and assigns in in or control.
14. Any action by a Town Board, Commission, or Department that requires changes in
the plan or design of the building as presented to the Planning Board, may be
subject to modification by the Planning Board.
15. Any revisions shall be submitted to the Town Planner for review. If these revisions
are deemed substantial, the applicant must submit revised plans to the Planning
Board for approval.
16. This Special Permit approval shall be deemed to have lapsed after two years from
the date permit granted unless substantial use or construction has commenced.
Substantial use or construction will be determined by a majority vote of the
Planning Board.
17. No further structures shall be constructed on the ground frq�ri the base of the
tower within an area equal to twice the height of the tower on which the devices
are to be installed.
AT&T Wireless Services—5 Boston Hill Road 5
18. The following information shall be deemed-part of the decision: ,r°
Plan titled: AT & T Wireless Services
Boston Hill '
North Andover, MA 01845
E 424.2
Prepared for: AT & T Wireless Services _
400 Blue Hill Road, Suite 100
Westwood, MA 02090-2160
Prepared by: Greenman-Pedersen, Inc.
Consulting Engineers
33 Boston Post Road
Marlborough, MA 01752
Dated: February 12, 1999
Sheets: 1 through 19
b) Report:
Application to Planning Board Town of North Andover
by AT&T Wireless Services February 16, 1999
Prepared for: AT&T Wireless PCS
400 Blue Hill Drive Suite 100 Westwood MA 02090-2161
Co-Applicant Benjamin Farnum LLC
397 Farnum Street North Andover
Prepared by: Thomas G. Schnorr
Attorney for AT&T Wireless Services
Palmer& Dodge
One Beacon Street
Boston Mass. 02108
CC. Director of Public Works
Building Inspector
Health Administrator
Assessors
Conservation Administrator
Planning Board
Police Chief
Fire Chief
Applicant
Engineer
File
AT&T Wireless Services—5 Boston Hill Road 6
ANDERSON&KREIGER LLP
Attorneys at Law
STEPHEN D.ANDERSON The Bulfinch Building ACHESON H.CALLAGHAN
Also admitted in Cr 47 Thorndike Street Of Counsel
Cambridge,MA 02141 DOUGLAS H.WILKINS
ARTHUR P.KREIGER (617) 252-6575 Of Counsel
Also admitted in NY Fax: (617) 252-6899
PETER J.CURA
GEORGE A.IQ.L,JR. RACHEL GRAHAM EVANS
o admitted in NH JEFFREY L.ROELOFS
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BY HAND
Zoning Board of Appeals
Town of North Andover
Office of Community
Development & Services
27 Charles Street
North Andover, MA 01845
RE: Applicant: AT&T Wireless PCS LLC by and through its Agent AT&T
Wireless Services, Inc. d/b/a AT&T Wireless Services
Site: Barker Farm, 1267 Osgood Street, North Andover
(Map 34, Lot 12)
Dear Members of the Board:
Thank you for continuing the public hearing on this matter to June 13, 2000. As
discussed with the Board last evening, AT&T Wireless Services stipulates that the 100 day
period for the Board to act on the application for variances under G.L. c. 40A, § 15, shall begin
on May , 2000, and expire on May, August 18, 2000. Z -`�
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For your convenience, enclosed are (1) a check in the amount of$25.00 payable to the
Board of Appeals as the updated application fee, (2) the updated certified list of abutters and
abutters to abutters within 300 feet, (3) a set of mailing labels to each abutter, and (4) 56 stamps.
Please let me know if there is anything else you need to process the application. In the interim, I
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Zoning Board of Appeals
May 10, 2000
Page 2
look forward to receiving from you the proposed newspaper notice. Thank you for your
assistance.
Since ely,
L
Stephen D. Anderson
sanderson@andersonkrei.ger.com
Enclosures
cc: Taylor Whiteside, Esq. (by email w/o encl.)
John C. Dorr(by email w/o encl.)
North Andover Town Clerk (by hand w/o encl.)
att\n.andbarker\1\ZB A008.wpd
ANDERSON&K"JGER LLP
Attorneys at Lara
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ANDERSON&KREIGM LLP
Attorneys at Lara
STEPHEN D.ANDERSON The Bulfinch Building ACHESON H.CALLAGHAN
Also admitted in Gr - 47 Thorndike Street Of Counsel
Cambridge,MA 02141 DOUGLAS H.WILKINS
ARTHUR P.KREIGER (617) 252-6575 Of Counsel
Also admitted in NY Fax: (617) 252-6899
PETER J.CURA
GEORGE A. HALL,JR. RACHEL GRAHAM EVANS
Also admitted in NH JEFFREY L.ROELOFS
May 16, 2000
BY HAND
Planning Board
Town of North Andover
Office of Community
Development&Services
27 Charles Street
North Andover, MA 01845
RE: Applicant: AT&T Wireless PCS LLC by and through its Agent AT&T Wireless
Services, Inc. d/b/a AT&T Wireless Services
Owner: George &Dorothea Barker
Site: 1267 Osgood Street, North Andover
Map/Lot: Map 34, Lot 12
Facility: Flagpole Style Wireless Communication Facility
Dear Members of the Board:
I. RESPONSE TO COMMENTS OF PLANNING BOARD'S CONSULTANT
By memo dated May 11, 2000 (Exhibit A), the Planning Board's consultant Timothy B.
McIntosh, P.E., Senior Project Engineer—Highway and Municipal Engineering, of Vanasse
Hangen Brustlin, Inc., has commented on AT&T Wireless Services' ("AWS") application for
approvals to install and operate a wireless communication facility at the Barker Farm, 1267
Osgood Street, North Andover. Mr. McIntosh recommended that AWS provide written
responses to the issues and comments presented in his memo. The letter presents those
responses.
VHB COMMENT 1: H 8.9.3.C.1 AND 8.9.3.C.II
The Applicant has requested a waiver from these sections of the Zoning Bylaw.
Height: The proposed height of the flagpole' is 120 feet. According to this section, the
height limit is 10 feet above the average height of building within 300 feet. Using the
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existing barn height of 45 feet as a reference, the height limit would be SS feet.
AWS Response 1
If and to the extent necessary, AWS has applied for a variance from the height
requirements provided in Section 8.9.3.c of North Andover's Wireless Services Facilities
Zoning Bylaw. AWS will provide evidence at the public hearing documenting the lowest
height that will satisfy AWS's coverage needs for which the facility is proposed and
justifying the height needed.
VHB COMMENT 2: H 8.9.3.C.II, 8.9.4.A.II AND 8.9.4.D.II
The Applicant has requested a waiver from these sections of the Zoning Bylaw. The
proposed site is required to be surrounded year-round by a vertical evergreen vegetated
buffer(dense tree growth) of 50 feet. The Applicant is proposing an 8 foot wood fence
surrounded by a row of evergreen trees.
AWS Response 2
If and to the extent the proposed landscaping does not satisfy the vegetative buffer
requirements of Sections 8.9.3.c.ii., 8.9.4.a.ii. and 8.9.4.d.ii, AWS is applying for a
variance from those buffer requirements. Section 8.9.3.c.ii requires a"dense buffer" of
trees if there are "no buildings within 300 feet of the proposed site of the facility ...."
Section 8.9.4.a.ii. Requires "Camouflage by Vegetation"if the wireless service facility is
not"camouflaged from public viewing areas by existing buildings or structures ...."
Section 8.9.4.d.ii. Requires "dense tree growth buffer" for a ground mounted wireless
service facility that is not camouflaged by existing buildings or structures ....
However, the definitions in Section 8.9.2(d, m, n, and p) make clear that(1) the proposed
flagpole is not a tower or a monopole as defined by the Bylaw, and (2) the proposed
flagpole itself qualifies as a "proposed" structure within which the antennas will be
camouflaged. As such, the dense vegetated buffet- is not required by the Bylaw. If it is,
AWS is applying for a variance from those setback requirements.
VHB COMMENT 3: H 8.9.3.C.V.1
The Applicant has requested a waiver from this-section of the Zoning Bylaw.. This section
requires that the base of the proposed wireless service facility be 2X the height(240 feet
ANDERSON(-G�KREIGER LLP
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Page 3
in this case) of the facility away from the property lines. Also, this section requires that
the facility be 300 feet away from any habitable dwellings.
The facility is located 222 feet from the property line near Osgood Street.
The facility is located approximately 140 feet from the existing two story
house. VHB assumes that the existing barn is not considered a habitable
dwelling.
It appears that the wireless facility could be relocated on the property to meet the
requirements of this section. The revised location would be at a much lower elevation
than the current location (156 versus 170). Due to the existing topography of the lot, it is
anticipated that the Applicant would increase the height of the facility by approximately
14 feet.
AWS Response 3
As shown on Exhibit B hereto and Sheet C-IA of the enclosed plans (Exhibits C and D)',
the Barker Farm is subject to an agricultural classification under M.G.L. c 61A. Only 1
acre of the premises is excluded from that classification.z AWS seeks to avoid the
undesirable result of siting the proposed facility on land classified for agricultural use
under Chapter 61A. AWS also seeks to avoid the hardship for the owner of triggering
back taxes by declassifying a portion of the farm. As a result, the facility has been sited
within the 1 acre excluded from the agricultural designation under Chapter 61A. In
addition, the location is screened by the house, the barn, and the tall trees at the residence
compound. Further, the chosen location is preferable because, as acknowledged by VHB,
the topography drops off considerably elsewhere at the site.
1 Exhibit C is a set of plans for the proposed one carrier installation. Exhibit D is a set of plans for the
proposed two carrier installation. Compared to the plans submitted with the original application,these plans have
been updated as follows:
1. Sheet C-IA has been added to both sets to show the land classified as agricultural.
2. Sheet Z-I has been amended to show the proposed two carrier shelter detail.
3. Sheet Z-4 has been amended to show a shelter with clapboard siding and a pitched, shingled roof.
4. Sheet T-t has been updated to reflect the new sheet C-I.
2 The deed for the subject property recorded at Book 4038,Page 79,and the application for classification as
agricultural land indicate that the subject property consists of 17 acres,of which one acre is classified as
agricultural. The deed does not contain metes and bounds for the property. The plans, which set forth metes and
bounds for the property indicate that the property consists of 19.3 acres,of which one acre is classified as
agricultural. AWS has asked the surveyor to recalculate the acreage to determine if the deed is correct or the plans
are correct.
ANDERSON&KMGER LLP
Attu s as at Lara
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May 16, 2000
Page 4
The proposed 120' flagpole poses no material risk of falling onto the public way 222'
away or onto the residence at the site 140' away. See Exhibit 13 to application dated
April 6, 2000. Further, AWS will discuss at the public hearing whether a height of the
flagpole lower than 111' is possible; if so, the street setback variance will be unnecessary.
VHB COMMENT 4: §§ 8.9.4.A.III.2
The Applicant has requested a waiver from this section of the Zoning Bylaw. This section
requires that the color of the wireless service facility above the surrounding vegetation
must be gray or light blue. The proposed color is white.
AWS Response 4
Traditional flagpoles are white. The gray/blue color scheme would not be attractive or
appropriate for the flagpole.
i
VHB COMMENT 5: §§ 8.9.4.E.II
The Applicant has requested a waiver from this section. The Applicant states that the
battery for back-up power may contain hazardous materials. However, this battery will
be certified to be "non-spillable"pursuant to US Department of Transportation
Standards.
AWS Response 5
The Building Commissioner confirms enclosed containment is not required for the
proposed backup batteries. See Exhibit 20 to application dated April 6, 2000.
VHB COMMENT 6: §§ 8.9.4.E.IV
The Applicant has stated that the facility will not generate noise in excess of 50 dB at the
property boundary. This section requires that the facility not generate noise in excess of
50 dB at the security barrier(proposed wood fence). The Applicant should state what the
proposed noise levels will be at the security barrier to verify compliance to this section.
If necessary, the Applicant should request a waiver from this to section.
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AWS Response 6
Enclosed as Exhibit E is a copy of Alactronic, Inc.'s letter dated April 5, 2000,
confirming that the calculated noise level from the Marvair HVAC Unit for the proposed
facility will be "37 dBA, approximately 15 dB below the ambient level" at the nearest
property boundary, which will be "significantly lower than the ambient conditions." To
the extent that the Bylaw requires a noise level of`r50 dB at the security barrier," AT&T
Wireless Services respectfully requests a waiver from the Planning Board because (1) the
proposed installation is surrounded by the extensive acreage of the Barker Farm, (2) the
closest public way is approximately 220' away, and (3) the ambient noise level of 53 dB
at the property boundary exceeds the 50 dB nominally required at the security fence.
VHB Comment 7 H 8.9.5.d.ii.4
While the Applicant has shown the location of existing AT&T owned facilities in the area,
existing facilities owned by other Carriers has not been shown. The Applicant has
requested a waiver frons this requirement.
AWS Response 7
AWS is not privy to other carriers' network design information.
VHB COMMENT 8: H 8.9.5.D.III.3 AND 8.9.5.D.III.4
The Applicant has requested a waiver from these sections. These sections require the
Applicant to show tree cover on surrounding properties by dominant species and average
height. These sections also require that all existing building outlines with the building
purpose be shown on a plan.
AWS Response 8
The Site Plans provide the information required by Section 8.9.5.d.iii (Siting Filing
Requirements) and Section 8.3.5 (Information Required for Site Plan Review) of the
Zoning Bylaw. If and to the extent the plans do not provide sufficient information to
meet the requirements of Section 8.9.5.d.111.3 (requiring the plans to show tree cover on
the subject property and all abutting properties, by dominant species and average height)
and Section 8.9.5.d.111.4 (requiring the plans to show an outline of all existing buildings
and uses on subject property and all abutting properties), AWS requests a waiver.of those
filing requirements, pursuant to Section 8.9.5.d.ix, because given the detailed information
submitted, any additional information regarding tree cover and the use of distant
buildings is not needed for a thorough review of the proposed facility.
ANDERSON&KREIGER LLP
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May 16, 2000
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VHB COMMENT 9: H 8.9.5.D.V.3
The Applicant has requested a waiver to this section which requires the submission of a
color board. The color board would depict the colors proposed for antenna mounts,
equipment shelters, security barrier, etc. The Applicant has stated that the proposed
colors of these items would be matched to the existing color scheme of the existing barn
_and dwelling.
AWS Response 9
The antennas will be mounted inside the white flagpole and will not be visible to the
outside. The fence will be cedar stockade. The equipment shelter will be screened
behind the stockade fence and landscaping. However, as shown on Sheet Z-4of the
enclosed plans, AWS can use clapboard siding and a pitched roof on the exterior of the
shelter and can match the color of the clapboard siding to the existing white garage or the
existing red barn at the site.
VHB COMMENT 10: §4 8.9.5.D.VI.1
The Applicant has requested a waiver from the noise filing requirements as outlined in
this section. The Applicant justifies this waiver request based on section 8.9.5.d.ix which
states that one or more of the application filing requirements may be waived if the
information is not required for a thorough review. VHB cannot offer an opinion as to
whether the noise requirements are necessaryfor a thorough review. However, the
Applicant states that the noise levels at the property boundary would not exceed SO dB.
Noise measurements have not been provided to verify the noise level at the property
boundary.
AWS Response 10
Additional information regarding noise levels is provided in response to comment 6,
above.
VHB COMMENT 11: H 8.9.5.D.V11.3
The Applicant states that an approval letter from the Massachusetts Department of'
Public Health will be submitted at a future date.
AWS Response 11
The MDPH letter will be provided on receipt.
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VHB COMMENT 12: H 8.9.5.D.VIII.2
The Applicant is requesting a waiver from the requirements of this section. The
Applicant states that the Building Commissioner has indicated that this section did not
apply due to the negligible amounts of hazardous material that may be present in this
facility. The Applicant lists the sources of negligible amounts of hazardous material to
be the thermostat(potential mercury) and the smoke detector(low level radiation).
AWS Response 12
It is possible that negligible amounts of hazardous materials will be present such as in the
thermostat (potential mercury) and/or the smoke detector(potential low level radiation)
that will be used at the facility. Given these negligible amounts and the Building
Commissioner's indication that Section 8.9.5.d.viii.2 did not apply to such materials
under these circumstances, AWS has not submitted a detailed list of the location, type and
amount of such de minimis hazardous materials. If and to the extent necessary, a waiver
of that filing requirement is requested, pursuant to Section 8.9.5.d.ix, because it is not
needed for a thorough review of the proposed facility.
VHB COMMENT 13: H 8.9.8
It does not appear that the Applicant has addressed this section, Monitoring and
Maintenance. VHB recommends that this section be addressed by the Applicant.
AWS Response 13
The monitoring and maintenance requirements apply"[a]fter the facility is in operation."
See §§ 8.9.8.a and 8.9.8.b. AWS will comply with these requirements as applicable at the
time.
VHB COMMENT 14: H 8.9.9.0
The Applicant is requesting a waiver from this section. VHB cannot offer an opinion as
to whether a performance bond or a cash deposit is more appropriate./or the Town.
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AWS Response 14
AWS prefers a performance bond, as is standard in other communities.
VHB Comment 15: H 8.9.11.a*
*VHB believes that the Applicant is referring to section 8.9.11.b. The Applicant is
requesting a waiver from this section which requires an escrow to cover annual
maintenance.
AWS Response 15
VHB correctly cites the section in question. AWS conducts routine maintenance of its
facility approximately once or twice per month. The escrow for maintenance is
unnecessary.
VHB COMMENT ON SECTION 10.3 SPECIAL PERMIT
(§§ 10.3.1.a and 10.3.1.b) VHB agrees that the American flagpole style will blend well
with the existing site and not adversely affect the surrounding neighborhood.
AWS Response
AWS agrees with VHB's assessment.
VHB COMMENT ON SECTION 8.3.6 SITE PLAN REVIEW CRITERIA/DESIGN
GUIDELINES
With the exception of the height requirements of the Residential 2 District, it appears that
the requirements of this section of the Zoning Bylaw have been satisfied.
AWS Response
AWS agrees with VHB's assessment. AWS has applied for any necessary height
variance.
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I
II. CORRECTIONS AND ADDENDA TO MATERIALS PREVIOUSLY
SUBMITTED
AT&T Wireless Services also submits the following list of corrections to the information
previously submitted in support of its application:
1. Owners
The Owners identified in plans and application are George and Dorothea Barker. Each
owns a Life Estate in the property in question. In addition, Dorothea Barker is a Trustee
of the Dorothea C. Barker Personal Residence Trust, which owns the fee interest in the
property. From the most recent instrument of record, the additional Trustees of the Trust
are Elizabeth E. Barker and Karen Barker. Submitted herewith as Exhibit F is an
amended Owners' Consent to this application, signed by various Barkers in their !
respective capacities.
2. Deed Reference
The Barkers' Deed referenced in the plans and application is recorded at Book 4038, page
66. This Deed is also referred to in the Town's Assessors' Records for the property.
However, on the same day that the owners recorded this Deed, the owners also recorded a
subsequent Deed at Book 4038, page 79, into the Trust referenced above. Since this
Deed was recorded more recently, it is the correct Deed reference for the property. (The
Assessors' Records should be corrected accordingly.)
3. Bylaw Citation
As noted by the Planning Board's consultant, AT&T Wireless Services sought a variance
from Section "8.9.1 La". The correct citation is 8.9.1 Lb. The correct citation is referred
to on the Board of Appeals' published and posted notice for the June 13, 2000, public
hearing.
4. Abutter's List
Submitted herewith as Exhibit G is a corrected, Certified List of Abutters and Abutters to
Abutters within 300' of the subject property. Timely notice has been provided to all
interested parties on this List, as evidenced by the undersigned's letter to the Planning
Board of even date herewith.
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5. Appraisal Report
Submitted herewith as Exhibit H is an Appraisal Report prepared by Newport Appraisal
Group, LLC dated May 8, 2000, confirming that the proposed facility "will not result in a
material change to the existing character of the site or the neighborhood" and "will not
result in a negative impact on the surrounding properties or upon the wider community"
(Exhibit G, page 11). This conclusion is reenforced by the conclusion of the Planning
Board's consultant that "the American flagpole style will blend well with the existing site
and not adversely affect the surrounding neighborhood."
6. Flagpole Dimensions
For the Board's convenience, submitted as Exhibit I is a sheet showing the actual
dimensions for the one carrier 110' Southborough flagpole and the two-carrier 115'
Canton flagpole. The diameter of the proposed flagpole would be comparable to'these
actual flagpoles for the one-carrier and two-carrier options respectively.
7. FAA Analysis
Attached as Exhibit J is a letter dated March 24, 2000, from John P. Allen, Airspace
Consultants, Inc., predicting that the FAA will not require marking and lighting for the
120' flagpole.
If you require any additional information, please let me know.
Sincerely,
Stephen . Anderson
sande' n@andersonkreiaencom
Enclosures
cc: Town Clerk (by Federal Express w/encl.)
Timothy B. McIntosh, P.E., VHB(by email w/o encl.and by Federal Express w/encl.)
Taylor Whiteside (by email w/out encl. and Federal Express w/encl.)
Phil Posner (by email w/out encl. and Federal Express w/encl.)
Jim Wilson (by email w/out encl.)
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ANDERSON&KREIGER LLP
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ANDERSON&KREIGER LLP
Attorneys at Lazo
STEPHEN D.ANDERSON The Bulfinch Building ACHESON H.CALLAGHAN
Also admitted in CT 47 Thorndike Street Of Counsel
Cambridge,MA 02141 DOUGLAS H.WILKINS
ARTHUR P.KREIGER (617) 252-6575 Of Counsel
Also admitted in NY Fax: (617) 252-6899
PETER J.CURA
GEORGE A.HALL,JR. RACHEL GRAHAM EVANS
Also admitted in NH JEFFREY L.ROELOFS
May 17, 2000
1
BY FEDERAL EXPRESS a
Zoning Board of Appeals +
Town of North Andover
Office of Community '
Development& Services
27 Charles Street
North Andover, MA 01845
RE: Applicant: AT&T Wireless PCS LLC by and through its Agent AT&T Wireless
Services, Inc. d/b/a AT&T Wireless Services
Owner: George & Dorothea Barker et al.
Site: 1267 Osgood Street,North Andover
Map/Lot: Map 34, Lot 12
Facility: Flagpole Style Wireless Communication Facility
Dear Members of the Board:
As you know, AT&T Wireless Services ("AWS") is involved in a parallel review process
before North Andover's Planning Board and Board of Appeals relating to AWS' proposed
wireless communication facility at the Barker Farm, 1267 Osgood Street,North Andover. The
Planning Board's consultant Timothy B. McIntosh, P.E., Senior Project Engineer—Highway and
Municipal Engineering, of Vanasse Hangen Brustlin, Inc., provided us with a memorandum
dated May 11, 2000 commenting on AWS' application. AWS has prepared a response to Mr.
McIntosh' memorandum consisting of a letter dated May 16, 2000 from me to the Planning
Board and the attachments thereto.
To assist the Board of Appeals in its review of AWS' application, I enclose 11 copies of
this letter and AWS' May 16, 2000 response package to the Planning Board, including the
transmittal letter and the following exhibits:
A. May 11, 2000 memorandum of the Planning Board's consultant, Timothy B.
McIntosh, P.E., Senior Project Engineer—Highway and Municipal Engineering,
of Vanasse Hangen Brustlin, Inc.;
B. Application For Classification As Agricultural Or Horticultural Land for fiscal
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May 17, 2000
Page 2
year 2000, dated September 23, 1999;
C. Revised plans for the proposed one-carrier facility;'
D. Revised plans for the proposed two-carrier facility;
E. Letter from Alactronic, Inc. dated April 5, 2000, confirming that the calculated
noise level from the Marvair HVAC Unit for the proposed facility will be "37
dBA, approximately 15 dB below the ambient level" at the nearest property
boundary, which will be"significantly lower than the ambient conditions";
F. Amended Owner's Consent to AWS' application;
G. Corrected, Certified List of Abutters and Abutters to Abutters within 300' of the
subject property, dated May 10, 2000 (previously provided to the Board of
Appeals);
H. Appraisal Report prepared by Newport Appraisal Group, LLC dated May 8, 2000,
confirming that the proposed facility"will not result in a material change to the
existing character of the site or the neighborhood" and"will not result in a
negative impact on the surrounding properties or upon the wider community" (p.
11);
I. Actual dimensions of AWS' Southborough and Canton flagpoles, photographs of
which were previously submitted to the Board with the original application; and
J. Letter dated March 24, 2000, from John P. Allen, Airspace Consultants, Inc.,
predicting that the FAA will not require marking and lighting for the 120'
flagpole.
1 Exhibit C to the enclosed May 16,2000 package is a set of plans for the proposed one carrier installation.
Exhibit D thereto is a set of plans for the proposed two carrier installation. Compared to the plans submitted with
the original application,these plans have been updated as follows:
1. Sheet C-IA has been added to both sets to show the land classified as agricultural.
2. Sheet Z-1 has been amended to show the proposed two carrier shelter detail.
3. Sheet Z-4 has been amended to show a shelter with clapboard siding and a pitched,shingled roof.
4. Sheet T-1 has been updated to reflect the new sheet C-1.
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AWS also submits the following list of corrections to the information previously
submitted in support of its application:
1. Owners
The Owners identified in plans and application are George and Dorothea Barker. Each
owns a Life Estate in the property in question. In addition, Dorothea Barker is a Trustee
of the Dorothea C. Barker Personal Residence Trust, which owns the fee interest in the
property. From the most recent instrument of record, the additional Trustees of the Trust
are Elizabeth E. Barker and Kareri Barker.
2. Deed Reference
The Barkers' Deed referenced in the plans and application is recorded at Book 4038,
page 66. This Deed is also referred to in the Town's Assessors' Records for the property.
However, on the same day that the owners recorded this Deed, the owners also recorded
a subsequent Deed at Book 4038, page 79, into the Trust referenced above. Since this
Deed was recorded more recently, it is the correct Deed reference for the property. (The
Assessors' Records should be corrected accordingly.)
3. Bylaw Citation
As noted by the Planning Board's consultant,AT&T Wireless Services sought a variance
from Section"8.9.1 La". The correct citation is 8.9.1 Lb. The correct citation is referred
to on the Board of Appeals' published and posted notice for the June 13, 2000,public
hearing.
If you require any additional information,please let me know.
Sincerely,
Steph D. Anderson
sand ersonQandersonkreiger.com
Enclosure
cc: Town Clerk(w/out encl.)
Taylor Whiteside (by email w/out encl.)
Phil Posner(by email w/out encl.)
Jim Wilson (by email w/out encl.)
John C. Dorr(by email w/out encl.)
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ZONING RELIEF REQUESTED FROM BOARD OF APPEALS
Variances from the following Zoning Bylaw Sections (If and to the Extent Necessary, All
Rights Reserved):
A. §§ 8.9.3.c.i and 8.9.3.c.11 (restricting height to 10' above the average building
height within 300' or, if no such buildings, 10' above average tree canopy height);
B. §§ 8.9.3.c.ii, 8.9.4.a.ii, and 8.9.4.d.ii (requiring dense tree growth to screen
views); ,
C. § 8.9.3.c.v.I (requiring flagpole setback 2x its height and 300' from habitable
dwelling or business);
D. § 8.9.4.a.iii.2 (restricting color above vegetation to light grey or blue);
E. § 8.9.4.e.ii (requiring fully enclosed containment for use of any hazardous
materials)
F. §§ 8.9.9.c and 8.9.1 La (requiring escrow accounts for removal and maintenance
activities);
Transportation
Land Development
Environmental .
Services
magtnatron innovation energy Cre,itiI,�re,ults for our clients and ixenetit,for''(11 CUnlnittIll ties
May 25,2000 Vanasse_Hangen-Brustlin,_Inc._
Ref: 06716.13
Ms. Heidi A. Griffin
Town Planner
Community Development&Services
Town of North Andover
27 Charles Street
North Andover,MA 01845
Re: Barker Farm—1267 Osgood Street
Wireless Service Facility Site Plan Review
North Andover,MA
I
Dear Heidi,
Vanasse Hangen Brustlin,Inc. (VHB)has received Anderson&Kreiger LLP's written
response letter(dated 5-16-00) to our Engineering Review for the above referenced project.
The Applicant has satisfied VHB's concerns in this matter and no further engineering review will be
required.
If you have any questions or concerns,please call me at your convenience.
Very truly yours,
VANASSE HANGEN BRUSTLIN,INC.
Timothy B.-McIntosh, P.E.
Senior Project Engineer—Highway&Municipal Engineering
cc: Stephen D. Anderson—Anderson&Kreiger LLP
Rick Carey—VHB
101 Walnut Street
Post Office Box 9151
Watertown, Massachusetts 02471-9151
\\MAWATR\te\0671613\docs\letters\at&t-response-052300.doc 617.924.1770 . FAX 6?7.924.2286
email: info@vhb.cotn
www.vhb.com
,ORTN
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9
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T�ACH'�CHUSt�{
^� NORTH ANDOVER
OFFICE OF
THE ZONPi iG BOARD OF APPE AL5
27 CHARLES STREET
NORTri ANDOVER,2VL?SSACH-USE i l S 01845
FAX(9 3) 633-95422
Date.- /l An
TO- Town of North Andover
Zoning Board of Appeals
27 Charles Street
North Andover, MA 01845
phone # 978-688-9541
fax # 978-688-9542
Please be advised that I have agreed to waive the time constraints for
the Zoning Board of Appeals to make a decision regarding the granting of a
VARIANCE for property located at:
STREET: ( 2 6 7 ar a-V
TOWN:
NAME OF PETITIONER: ��'
Signed: 4r-+-T
petitioner (or petitioner's repres ntative)
10.4 Variance and Appeals .
The Zoning Board of Appeals shall have power upon appeal to grant variances from the
terms of this Zoning Bylaw where the Board finds that owing to circumstances relating to soil
conditions, shape,or topography of the land or structures and especially affecting such land or
structures but not affecting generally the zoning district in general, a literal enforcement of the
provisions of this Bylaw will involve substantial hardship,financial or otherwise,to the petifioner or
applicant, and that desirable relief may be granted without substantial detriment to the public good
and without nullifying or substantially derogating from the intent or purpose of this Bylaw.
/�� MI/variance
J
30AR—D OF.-_PPE,�LS 63S-9511 BUiLD[NGS 6SS-9f45 CONSERVATiGN 5 3-9`30 PL. ,\Ni-I :G tiS3-9:3; -
!� I -;
40 Town Of North Andover tt°RrH
` Office of the Planning Department
Ir Community Development and. Services Divi.si®n
William J. Scott, Division Director *�" '�:_" *
27 Charles Street Ss
North
North Andover,Massachusetts 01845 Telephone(978)688-9535
Heidi Griffin
fax-(978)688-9542
Planning Director
I NOV 2 7 2000 3
NOTICE OF DECISIO __ lw' . G' mo
No.-4-<
C:Dz
Any appeal shall be filed 3=-- 50
r f,
Within 20 days after the r.► r oma"
( ) .0 c-;0Cno
Date of filing this Notice
In the Office of the Town w
Clerk o
Date: November 17,2000
Date of Hearing: May 16,2000,June 27,2000
August 1,2000 September 5,2000 and November 14,2000
Petition of: AT&T Wireless PCS LLC d/b/a AT&T Wireless Services
400 Blue Hill Drive, Suite 100,Westwood,MA 02090
Premises affected: 1267 Osgood Street
Referring to the above petition for a Special Permit with Site Plan Approval. The application was
noticed and reviewed in accordance with Sections 8.3,8.9,10.3,and 10.3.1 of the Town of North
Andover Zoning Bylaw and MGL a 40-A,sec.9.
So as to allow: The construction of an 80' tall telecommunications wireless service facility in
the Residential 2 Zoning District
After a public hearing given on the above date,the Planning Board voted to APPROVE the Special
Permit with Site Plan Approval, based upon the following conditions:
Signed
Alison Lescarbeau, Chairman
CC: Applicant
Engineer
John Simons,Vice Chairman
Alberto Angles,Clerk
Richard Nardella
Richard Rowen
William Cunningham
HOARD)OF APPS-u.S 688-9541 BUILD NG 688-9545 CONSERVATION 688-9530 HEALTH 683-9540 PLANNMI NG 688••9535
i
1267 Osgood Street—Barker Farm—AT&T Wireless Services Facility
Special Permit with Site Plan Approval
The Planning Board herein approves the Special Permit with Site Plan Approval to
- construct an 80' tall telecommunications wireless service facility in the Residential 2
Zoning District. This Special Permit and Site Plan Approval were requested by AT&T
Wireless PCS LLC by and through its agent AT&T Wireless Services, Inc. d/b/a AT&T
Wireless Services, 400 Blue Hill Drive, Suite 100, Westwood, MA 02090. This
application and additional documentation as cited herein was filed with the Planning
Board on April 6, 2000 with subsequent submittals on file. The applicant submitted a
complete application which was noticed and reviewed in accordance with Sections 8.3,
8.9, 10.3, and 10.3.1 of the Town of North Andover Zoning Bylaw and MGL c.40A, Sec.
9.
The Planning Board makes the following findings as required by the North
Andover Zoning Bylaw Section 8.9:
FINDINGS OF FACT:
1. The specific site is an appropriate location for the project as the site is extremely
large, topographically higher than the surrounding area, and contains a variety of farm
structures, fields and agricultural improvements (such as the house, the barn, and the
agricultural fields and related areas) with which the proposed American Flagpole-
style facility will blend for an aesthetic and understated wireless communication
installation.
2. The use as developed will not adversely affect the neighborhood as indicated by the
submittals and reports referenced at the end of this decision in Condition#19.
3. The use will not result in any nuisance or serious hazard to vehicles or pedestrians.
4. The carrier has demonstrated. that the facility is necessary in order to provide
adequate service to the public as indicated by the submittals and reports referenced at
the end of this decision in Condition#19.
5. The plans meet the requirements of the Wireless Service Facilities By-law Section
8.9,with the exception of the waivers granted hereby and listed in Condition#18.
6. Adequate and appropriate facilities will be provided for the proper operation of the
proposed use. The proposed flagpole, antennas cables and equipment area are
described in detail on the plans and reports referenced herein. The proposed
equipment shelter will be an unoccupied, unmanned, specialized area for the wireless
communications equipment.
7. The Board finds that because this particular flagpole-style installation constitutes a
camouflaged facility under Sections 8.9.2.d, 8.9.3.b.2, 8.9.3.c.i, 8.9.4.a.ii and
8.9.4.d.ii, the requirements for dense tree growth to screen views under Sections
8.9.3.c.11, 8.9.4.a.ii and 8.9.4.d.ii do not apply.
Finally the Planning Board finds that the project is in harmony with the general purpose
and intent of the Town of North Andover Zoning Bylaw and generally complies with the
requirements of the Bylaw as listed in Sections 8.3, 8.9 and 10.3, but requires conditions
in order to be fully in compliance. The Planning Board hereby grants this Special Permit
with Site Plan Approval to the applicant provided the following conditions are met:
SPECIAL CONDITIONS:
l: Discontinuance Abandonment
a) At such time that a licensed carrier plans to abandon or discontinue operation of
wireless service equipment, such carrier will notify the Town by certified US mail
of the proposed date of abandonment or discontinuation of operations. Such
notice shall be given no less than 30 days prior to abandonment or discontinuation
of operations. In the event that a licensed carrier fails to give such notice, the
wireless service equipment shall be considered abandoned upon discontinuation
of operations.
b) Upon abandonment or discontinuation of use, the carrier shall physically remove
the wireless service equipment placed on the site by the carrier within 90 days
from the date of abandonment or discontinuation of use. "Physically remove"
shall include, but not be limited to:
i) Removal of antennas, mount, equipment shelters and security barriers
installed by the carrier (unless the same will continue to be used by the owner)
from the subject property.
ii) Proper disposal of the waste materials generated by the carrier from the site in
accordance with local and state solid waste disposal regulations.
iii) Restoring the location of the wireless service facility in its natural condition,
except that any landscaping and grading shall remain the after-condition.
c) As a condition of any special permit for the placement, construction or
modification of a wireless service equipment at the site, the carrier shall place into
escrow a sum of money to cover the costs of removing the facility from the
subject property. Said amount shall be certified by an engineer, architect or other
qualified professional registered to practice in the Commonwealth of
Massachusetts. Said funds shall be held by an independent escrow agent to be
appointed by the carrier and the SPGA. The carrier shall authorize and, as
necessary, shall obtain the authorization of the owner of the property to allow the
escrow agent to enter upon the subject property to remove the facility when the
facility has been abandoned or discontinued. In the event the posted amount does
not cover the cost of demolition and/or removal the Town may place a lien upon
the property covering the difference in cost.
d) The equipment shall be deemed to be abandoned or discontinued if it has not been
used for the purpose for which it was originally constructed for a period of six (6)
months or more. Once abandonment or discontinuance has occurred, the carrier
shall remove the equipment placed by the carrier from the subject property within
ninety days. In the event that the carrier fails to remove the equipment, the town
shall give notice to the carrier and the independent escrow agent that the
equipment shall be removed by the escrow agent forthwith and the escrow agent,
after affording written notice seven days in advance to the carrier, shall remove
the facility.
2) Performance Guarantees
a) Insurance in a reasonable amount determined and approved by the SPGA after
consultation at the expense of the applicant with one (1) or more insurance
companies shall be in force to cover damage from the equipment on the structure,
damage from transmissions and other site liabilities. Annual proof of said
insurance must be filed with the SPGA.
b) Funds, sufficient in the opinion of the SPGA to cover annual maintenance of the
equipment on the facility, shall be placed into escrow and shall be held by the
independent escrow agent who shall be authorized to expend the funds for the
maintenance of the equipment on the facility on terms to be agreed upon by the
carrier and the SPGA as a condition of approval of the special permit.
c) Annual certification demonstrating continuing compliance with the standards of
the Federal Communications Commission, Federal Aviation Administration and
the American National Standards Institute shall be filed with the SPGA by the
Special Permit holder.
3) Term of Special Permit.
a) A Special Permit issued for any wireless service facility shall be valid for three
(3) years. The special permit may be renewed under the same criteria as the
original special permit, provided that the application for renewal of the special
permit is made prior to the expiration date of the original or any renewed special
permit. Additional measures governing the administration of the special permit
are found in Section 10.3 of the Zoning Bylaw.
b) After the equipment on the facility is in operation, the applicant shall submit to
the SPGA, within 90 days of beginning operations and at annual intervals from
the date of issuance of the Special Permit, preexistent and current RFR
measurements. Such measurements shall be signed and certified by an RF
engineer, stating that RFR measurements are accurate and are in compliance or
why the measurements fail to comply with all applicable FCC Guidelines as
specified in Section 8.9(4)(c)(1) RFR Filing Requirements of this Bylaw. The
measurements shall be submitted for both the applicant and all co-locators.
c) After the wireless service facility is in operation the applicant shall submit to the
SPGA; within 90 days of the issuance of the Special Permit, and at annual
intervals from the date of issuance of the Special Permit, preexistent and current
measurements of acoustic noise from the wireless service facility. Such
measurements shall be certified and signed by an acoustical engineer, stating that
noise measurements are accurate and meet the Noise Standards sub-section
6.13.14.5 of this Bylaw. The applicant shall forward to a separate consulting
engineer, selected by the Town, the above materials for review. The applicant
shall pay for such review.
d) The applicant and co-applicant or their successor in interest shall maintain the
wireless service equipment in good condition. Such maintenance shall include,
but shall not be limited to, painting, structural integrity of the flagpole and
maintenance of the buffer and landscaping.
4. Prior to the endorsement of the plans by the Planning Board, the applicant
must comply with the following conditions:
a) The applicant shall provide a map indicating the intended locations for testing
as required above.
b) A bond in the amount of$5,000 shall be posted for the purpose of insuring
that a final as-built plan showing the location of all on-site structures. The
bond is also in place to insure that the site is constructed in accordance with
the approved plan. This bond shall be in the form of a check made out to the
Town of North Andover. This check will then be deposited into an interest
bearing escrow account.
c) The applicant shall provide the necessary, escrow accounts and insurance as
required in the above sections 1 c, 2a and 2b.
5. Prior to the start of construction:
a) A construction schedule shall be submitted to the Planning Staff for the
purpose of tracking the construction and informing the public of anticipated
activities on the site.
b) The applicant shall determine the preexisting conditions of the noise levels
emanating from the site to determine the baseline noise conditions of the site
area. The noise survey will provide evidence of the origin of surrounding
noise and therefore a baseline condition from which the applicant determine
their increases. The noise levels shall not increase the broadband level by
more than lOdb(a) above the ambient levels or produce a "pure tone"
condition as set forth in DAQC Policy 90-001, the guideline for 310 CMR
7.10. The applicant may use relevant professional sound emitting data from
the prior building use to build a baseline based on prior use of the building
and grounds. References to sources for data must be included in the material.
6. Prior to FORM U verification (Building Permit Issuance):
a) The final site plan mylars must be endorsed and three (3) copies of the
signed plans must be delivered to the Planning Department.
b) A certified copy of the recorded decision must be submitted to the
Planning Department.
c) The applicant must have obtained a variance from the Zoning Board of
Appeals for the height of the proposed facility to be constructed at 80'
above ground level. A recorded copy of the Zoning Board Decision
certifying that the variance has been received must be provided to the
Planning Department as proof of such.
7. Prior to verification of the Certificate of Occupancy:
a) The applicant must submit a letter from the architect or engineer of the
project stating that the construction and operations substantially comply with
the plans referenced at the end of this decision as endorsed by the Planning
Board.
b) All lighting placed by the carrier on the subject property shall have
underground wiring and shall be so arranged that all direct rays from such
lighting falls entirely within the site and shall be shielded or recessed so as
not to shine upon abutting properties or streets. The Planning Office must
approve any changes to the approved lighting plan as submitted by the
applicant.
8. Prior to the final release of security:
a) A final as-built plan showing final construction and location of the
wireless hardware shall be submitted to.and reviewed by the Planning
Staff.
9. Any stockpiling of materials (dirt, wood, construction material, etc.) must be
shown on a plan and reviewed and approved by the Planning Staff. Any approved
piles must remain covered at all times to minimize any dust problems that may
occur with adjacent properties. Any stock piles to remain for longer than one
week must be fenced off and covered.
10. In an effort to reduce noise levels, the applicant shall keep in optimum working
order, through regular maintenance, any and all equipment that shall emanate
sounds from the structures or site.
11. No equipment or other equipment that will emanate noise-exceeding levels cited
herein shall be placed on the exterior of the structure. Such equipment shall be
enclosed as shown on the plans.
12. All site lighting shall provide security for the site and structures however it must
not create any glare or project any light onto adjacent residential properties.
13. The contractor shall contact Dig Safe at least 72 hours prior to commencing any
excavation.
14. The provisions of this conditional approval shall apply to and be binding upon the
applicant, its employees and all successors and assigns in interest or control.
15. Any action by a Town Board, Commission, or Department that requires changes
in the plan or design of the building as presented to the Planning Board, may be
subject to modification by the Planning Board.
16. Any revisions shall be submitted to the Town Planner for review. If these
revisions are deemed substantial, the applicant must submit revised plans to the
Planning Board for approval.
17. This Special Permit approval shall be deemed to have lapsed after three years
from the date permit was granted unless substantial use or construction has
commenced. Substantial use or construction will be determined by a majority
vote of the Planning Board. As long as the applicant is diligently pursuing
necessary governmental approvals for the proposed project, including without
limitation the height variance identified in Section 6(c) above, the three year
period shall be tolled during the pendency of any litigation challenging the grant
or denial of any such governmental approval.
18. The following waivers were granted in determining this decision in accordance
with the authority designated by Section 8.9.3.c.v.3 of the Zoning Bylaw and
Section 8.9.5.d.ix:
a) Waiver to reduce the required setback distance of 300' from a habitable
dwelling or business required by Section 8.9.3.c.v.1 and 8.9.3.c.v.3 of the
Zoning Bylaw so as to allow a reduced setback of 150', which is 50% of the
required setback distance. The Board finds that the setback of 300' is
satisfied, without the need for a waiver, with respect to every abutting
property. (See Sheet Z-1, Site Plan). The closest habitable dwellings to the
proposed flagpole are situated on Assessor's Map 35, Lot 103 (which is
approximately 450' from the proposed flagpole) and Assessor's Map 34, Lot
13 (which is approximately 420' from the proposed flagpole). (See Sheet C-
lA, Land Use Plan). The Barker residence at Assessor's Map 34, Lot 12 is
located on the same lot as the proposed flagpole. With respect to the Barker
c
residence, the Board finds that the setback of 150' will provide adequate
safety, allow for an improved design of the facility and will not significantly
impact the character and appearance of the neighborhood. The applicant has
presented the required certification that the tower is designed to collapse upon
itself in the event of failure as indicated in the letter dated March 14, 2000
from Paul I Ford and Company, Structural Engineers, to Tectonic
Engineering regarding the"bend-over"design of the flagpole.
b) Waiver to provide a color board required by Section 8.9.5.d.(v)3.
Photographs have been provided in the reports referenced herein, which
adequately display the color of the flagpole facility.
c) Waiver to require a balloon or crane test at the proposed site required by
Section 8.9.5.d.(v)7. The plans and visibility study provided by the applicant
contain sufficient information to evaluate the application, without the need for
an additional crane test or balloon test.
d) Waiver to provide location, type and amount of any materials considered
hazardous by the federal state or local government required by Section
8.9.5.d.viii.2. However, the applicant does list the sources of negligible
amounts of hazardous materials to be the thermostat (potential mercury) and
the smoke detector(low level radiation).
19. The following information shall be deemed part of the decision:
a) Plan titled: Unmanned Wireless Communication Equipment Site
Site No. #445 —Barker Farm
1267 Osgood Street
80' One Carrier Flagpole
North Andover,MA
Essex County
Prepared for: AT&T Wireless Services, 400 Blue Hill Drive, Suite 100,
Westwood, MA 02090
Prepared by: Tectonic Engineering Consultants, P.C.
Northborough Commons— Suite 401
4 West Main Street
Northborough,MA 01532
Dated: 3/16/00, revised 4/4/00, 5/8/00, 8/3/00
Sheets:
Sheet Number Title
T-1 Title Sheet
C-1A Site Plan
Z-1 Site Plan& Site Detail Plan
Z-2 North&West Elevations
Z-3 South&East Elevations
Z-4 Site Line Profile& Site Details
Z-5 Landscape Plan and Landscape
Details
b) Documentation Submitted:
1. Letter from Stephen D. Anderson, Esq.,Anderson&Kreiger LLP to the
Planning Board, dated April 6, 2000 (with enclosures),transmitting AWS'
original application;
2. Letter from Stephen D. Anderson, Esq., Anderson&Kreiger LLP to the
Planning Board, dated May 16, 2000(with enclosures), providing
supplemental information related to AWS' application;
3. Letter from Stephen D. Anderson, Esq., Anderson&Kreiger LLP, dated
August 4, 2000 (with enclosures), submitting Amended Application.
4. Original Planning Board Application for Special Permit with Site Plan
Approval, dated April 6, 2000;
5. Amended Planning Board Application for Special Permit with Site Plan
Approval, dated August 4, 2000;
6. Letter from Stephen D. Anderson, Esq., Anderson& Kreiger LLP to
Abutters and Parties in Interest for 1267 Osgood Street, dated May 5, 2000
(with enclosures), providing notice of upcoming Planning Board public
hearing;
0
7. An RF report, with coverage charts, demonstrating(1)the need for the
facility, (2)the coverage it will provide, (3)"that there are no feasible
preexistent structures upon which to locate"under § 8.9.3.b.9, and (4)the
other existing
AWS facilities in North Andover and outside North Andover within one
mile of its boundary;
8. RF coverage charts depicting drive test data at 32', 50', 80', 100'and 120'
above ground level.
9. Owner's Consent to Municipal Development Application,,submitted with
April 6, 2000 application materials;
10. Revised Owners' Consent to Municipal Development Application,
submitted with May 16, 2000 supplemental application package;
11. View Shed Analysis prepared by Tectonic Engineering dated March 13,
2000;
12. Letter dated March 14, 2000 from Paul J. Ford and Company, Structural
Engineers,to Tectonic Engineering regarding the"bend-over" design of
the flagpole;
13. Specifications for the antennas;
14. Specifications for the equipment shelter,
15. Specifications for the cables and cable runs;
16. MSDS for the batteries to be used for backup power;
17. Report to the Massachusetts Department of Public Health certifying that
the maximum allowable frequencies, power levels and standards will not
be exceeded for the facility;
18. Approval letter from the Massachusetts Department of Public Health,
dated June 7, 20K-
19. Notice to the Federal Aviation Administration of the proposed
construction;
20. Letter from John P. Allen, Airspace Consultants, Inc. to AWS, dated
March 24, 2000, predicting that the Federal Aviation Administration will
not require marking and lighting for a 120'flagpole at the site;
n
21. Letter from Steven G. Langlais,P.E.,to Jeffrey L. Roelofs, dated June 5,
2000, concurring with Airspace Consultant, Inc.'s conclusions related to
potential aviation issues;
22. Four color photographs of an actual AWS installation in front of the
Southborough Town Hall consisting of a 110' single-carrier flagpole;
23. Three color photographs of an actual AWS installation at the former
Ponkapoag School property in Canton, consisting of a 115'two-carrier
flagpole.
24. Sheet describing the actual dimensions for the one carrier 110'
Southborough flagpole and the two-carrier 115' Canton flagpole.
25. Memorandum from Vanasse Hangen Brustlin, Inc. to Stephen D.
Anderson, dated May 12, 2000,with attached engineering review report.
26. Letter report from Vanasse Hangen Brustlin, Inc., dated May 25, 2000.
27. Memorandum from Heidi Griffin to North Andover Planning Board, dated
May 10, 2000;
28. Memorandum from Heidi Griffin to North Andover Planning Board, dated
July 27, 2000
29. Application for Classification as Agricultural or Horticultural Land for
Fiscal Year 2000, relating to 1267 Osgood Street property;
30. Application for Consent of the Planning Board Under G.L. c. 40A, § 16
To Reapply For Height Variance Based on Specific and Material Changes
to Plans, dated August 4, 2000;
31. Letter from Alactronic, Inc., dated April 5, 2000, related to noise issues.
32. Appraisal Report prepared by Newport Appraisal Group, LLC, dated May
8, 2000.
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Transportation
Land Development
Environmental
8 a r v i c e e
101 Walnut Street
yQn=A Nazzeen Rruct insInc-
Post Office Box 9151
Watertown
Massachusetts 02471
617 9241770
PAX 617 924 2286
FAX
Transmittal Deliver To: Mr.Stephen D.Anderson Prom: Timothy B.McIntosh,P.E.
Company: Anderson&Kreiger LLP VHD Project No.: 06716.13
Telephone No.: 617-252-6575 FAX No-- 617-252-6899
Original of Tek=pyY Will be sent on 5-12-00 Date and ISme: May 12,2000
Total Number of Pages ancluding Transmittal Form): 4
Mr.Anderson,
Please find enclosed for your use,a copy of VHB's engineering review report for the proposed
wireless service facility at#1267 Osgood Street(Barker Farm)in the Town of North Andover. This is
transmitted so you may prepare for the public hearing next week, I will mail a copy of this report to
you today.
Tim _"Y_41,t
cc: Heidi Griffin—Town Planner,North Andover
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TOWN OF NORTH ANDOVER PLANNING BOARD
REVIEW OF WIRELESS SERVICE FACILITY SITE PLAN
FOR CONFORMANCE WITH THE TOWN OF NORTH ANDOVER
ZONING BYLAW&STANDARD ENGINEERING PRACTICE
Site Plan Title: SITE NO.E•455—BARKER FARM VHB No.:06716.13
Location: # 1267 Osgood Street
Owner: George R. Barker and Dorothea C.Barker
Applicant: AT&T Wireless PCS LLC d/b/a AT&T Wireless Services
Applicant's Engineer: Tectonic Engineering Consultants P.C.
Plan Date: 0404-00 Review Date: 05-11-00
The Applicant submitted plans,reports and documents to VHB for review. This site plan
submission was reviewed for conformance to the appropriate sections of the 1972 Town of North
Andover Zoning Bylaw reprinted in 1998 and standard engineering practice. The following
comments note non-conformance with specific sections and questions/comments on the proposed
design. VHB offers the following comments:
SECTION 8.9 WIRELESS SERVICE FACILITY
1. (8.9.3.c.i and 8.9.3.c-ii) The Applicant has requested a waiver from these sections of the
Zoning Bylaw.
■ Height: The proposed height of the `flagpole' is 120 feet. According to this section,the
height limit is.10 feet above the average height of building within 300 feet. Using the
existing barn height of 45 feet as a reference,the height limit would be 55 feet.
2. (8.9.3.c.ii, 8.9.4.a.ii and 8.9.4.d,ii)The Applicant has requested a waiver from these sections
of the Zoning Bylaw. The proposed site is required to be surrounded year-round by a vertical
evergreen vegetated buffer(dense tree growth)of 50 feet.The Applicant is proposing an 8
foot wood fence surrounded by a row of evergreen trees.
3. (8.9.3.c.v,1)The Applicant has requested a waiver from this section of the Zoning Bylaw.
This section requires that the base of the proposed wireless service facility be 2X the height
(240 feet in this case)of the facility away from the property lines. Also,this section requires
that the facility be 300 feet away from any habitable dwellings.
• The facility is located 222 feet from the property line near Osgood Street.
• The facility is located approximately 140 feet from the existing two story house. VHB
assumes that the existing barn is not considered a habitable dwelling.
It appears that the wireless facility could be relocated on the property to meet the
requirements of this section. The revised location would be at a much lower elevation than
the current location (156 versus 170). Due to the existing topography of the lot, it is
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anticipated that the Applicant would increase the height of the facility by approximately 14
feet.
4. (8.9.4.a.iii.2)The Applicant has requested a waiver from this section of the Zoning Bylaw.
This section requires that the color of the wireless service facility above the surrounding
vegetation must be gray or light blue, The proposed color is white.
5. (8.9.4.e.ii) The Applicant has requested a waiver from this section. The Applicant states
that the battery for back-up power may contain hazardous materials. However,this battery
will be certified to be"non-spillable"pursuant to US Department of Transportation
Standards.
6. (8.9.4.e.iv) The Applicant has stated that the facility will not generate noise in excess of 50
- dB at the property boundary. This section requires that the facility not generate noise in
excess of 50 dB at the security barrier(proposed wood fence). The Applicant should state
what the proposed noise levels will be at the security barrier to verify compliance to this
section. If necessary,the Applicant should request a waiver from this to section.
7. (8.9.5.d.ii.4). While the Applicant has shown the location of existing AT&T owned facilities
in the area,existing facilities owned by other Carriers has not been shown. The Applicant
has requested a waiver from this requirement,
8. (8.9.5.d.iii.3 and 8.9.5.d,iii.4) The Applicant has requested a waiver from these sections.
These sections require the Applicant to show tree cover on surrounding properties by
dominant species and average height. These sections also require that all existing building
outlines with the building purpose be shown on a plan.
9. (8.9.5.d.v.3) The Applicant has requested a waiver to this section which requires the
submission of a color board. The color board would depict the colors proposed for antenna
mounts,equipment shelters, security barrier,etc. The Applicant has stated that the proposed
colors of these items would be matched to the existing color scheme of the existing barn and
dwelling.
10. (8.9S.d.vi.1) The Applicant has requested a waiver from the noise filing requirements as
outlined in this section. The Applicant justifies this waiver request based on section
8.9.5.d.ix which states that one or more of the application filing requirements may be
waived if the information is not required for a thorough review. VHB cannot offer an
opinion as to whether the noise requirements are necessary for a thorough review. However,
the Applicant states that the noise levels at the property boundary would not exceed 50 dB.
Noise measurements have not been provided to verify the noise level at the property
boundary.
11. (8.9.5.d.vii.3) The Applicant states that an approval letter from the Massachusetts
Department of Public Health will be submitted at a future date.
12. (8.9.5.d-viii-2) The Applicant is requesting a waiver from the requirements of this section.
The Applicant states that the Building Commissioner has indicated that that this section did
not apply due to the negligible amounts of hazardous material that may be present in this
facility. The Applicant lists the sources of negligible amounts of hazardous material to be
the thermostat(potential mercury)and the smoke detector(low level radiation).
2
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13. (8.9.8) It does not appear that the Applicant has addressed this section,Monitoring and
Maintenance. VHB recommends that this section be addressed by the Applicant.
14. (8.9.9.c) The Applicant is requesting a waiver from this section. VHB cannot offer an
opinion as to whether a performance bond or a cash deposit is more appropriate for the
Town.
15. (8.9.1 l.a*) *VHB believes that the Applicant is referring to section 8.9.1 l.b. The Applicant
is requesting a waiver from this section which requires an escrow to cover annual
maintenance.
_ SECTION 10.3 SPECIAL PERMIT
1, (10.3.1.a and 10.3.1.b) VHB agrees-that the American flagpole style will blend well with the
existing site and not adversely affect the surrounding neighborhood,
SECTION 8.3.6 SITE PLAN REVIEW CRITERIA/DESIGN GUIDELINES
With the exception of the height requirements of the Residential 2 District, it appears that the
requirements of this section of the Zoning Bylaw have been satisfied.
GENERAL COMMENTS
The Applicant has made references to and statements regarding the Telecommunications Act of
1996. VHB cannot comment on the requirements of the Telecommunication Act of 1996 or how
this act affects the Zoning Bylaw. Our review is based on the Town of North Andover Zoning
Bylaw.
The proposed location of this wireless facility does not meet several of the requirements of the
Zoning Bylaw and as such the Applicant has requested waivers. In most instances,VHB has
identified the waiver being requested,the conditions that are required by the Zoning Bylaw and
the conditions that the Applicant is proposing.
It is recommended that the applicant provide'WRITTEN RESPONSES,as appropriate,to the
issues and comments contained herein.
Reviewed by: Date: �2
Timothy B.McIntosh,P.E.
Senior Project Engineer—Highway and Municipal Engineering
3
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' To be submitted not later than October I State'rax Form AH-1
APPLICATION FOR CLASSIFICATION AS AGRICULTURAL OR HORTICULTURAL LAND
(Under General Lbws Ch.61A)
I
FISCAL YEAR
COMMONWEALTH/DOFF MASSACHUSETTS
Town of AZ
Name R 1 A/Gr
Address
1. Description of the property covered by this application.
(Give general location and area and identify b assessors'map,deed or plan-reference.)
ll. Use of land to which this application applies:
List by classes as established by the Farmland Valuation Advisory Commission:
Land Use Class No.of Acres: Use,crops grown,etc.
Ill. Number of years land,described in I has been used in conformity with G.L.Chapter 61 A:
IV. Total income in the previous year from the following sources:
A. Gross sales from agricultural-horticultural use $ —
B. Amount received under a Massachusetts or U.S.soil
conservation or pollution abatement program: TOTAL
V. Desc a in detail source of income in IV-A d IV-B above: 1/7
_
A
I certify that all statements in this application are accurate and true to the best of my knowledge and agree that they are made subject to the
penalties of perjury.
I further certify that I will notify the Board of Assessors in writing of any circumstances developing subsequent to this date which may cause a
change in use from that described herein.
I understand that it is my obligation to notify by certified mail the mayor and city council of a city or the board of selectmen of a town,the con-
servation commission and planning board,if any,and the board of assessors of any intention of sale or conversion of this land.No sale or con-
version shall be consummated until 60 days have passed since the mailing of notification or I have been notified in writing that the city or town
will not exercise the option to purchase.
Signed -
:.
Date
NOTE: IF LAND IS BEING LEASED to another,sections 11, Ill and IV should be answered on the basis of the lessee's use of the land,and the
following statement must be signed by the lessee.
I lessee of the above described
property hereby certify that the land is being used as described in above sections 11, Ill and IV and that I intend to so use the land in this
manner during the fiscal year to which this application applies.
Additional statements may be attached Signed --
i
in the event of more than one lessee.
Date
FORM 889 HOBBS&WARREN,INC. REVISED 1978. THIS FORM APPROVED BY THE DEPARTMENT OF REVENUE.
V
y
3
7
CODE NUM. LAND USE CATEGORY
SOD.OURSERY
1 VEGETABLES,TABAc
2 DAIRY, FORAGE CROPS, FIELD CROPS
g ORCHARDS,VINEYARDS
4
5 PERMANENT PASTCRANBERRIES
URE, WOODLAND, NECESSARY RELATED LAND
g NON-PRODUCTIVE LAND
TO THE BEST
F KNOWLEDGE WLEDGE THIS IS A TRUE AND ACCURATE LIST, AND I SIGN
4RTINALTIES OF PER URY.RECORD OWNER
SEE LAND USE LIST FOR CODE NUMBER
4; SH1512
1%s,RUXMT ML:T hl. 111'Ll FILED 1'01t KWAD OR RMIKI11AI111A _
Wim»Tag r.-M AM t _
1, i.
_NORTM AN _.
-!tuns or cKy .r TO&P r{
OFFICE OF THE BOARD OF ASSESSORS
AGRICULTURAL OR HORTICULTURAL LAND TAX UBN
:i --------------
The Board of Assessors of the city/town of .. NORTH ANDOV Q '••hereby data that It
' has accepted and approved the application of Georqe R• Harker-
.Jre Barker Street Trust
1 '
_. _... __ - ..._._ ..._._.._._..._ ...... ._. . ... ................... _
owner or owners of the hereinafter described Iand for valuation, mptessment and taxation of jueh
1: land under the provisions of General Laws, Chapter IilNfor the fiscal year ending June SO, 19 Ol
DESCRIPTION OF LAND
_ Assessors Plan34 Assessors Lot..12,1088,_ _
i'
.Aasesaora_!>e#tt..Plan..61 Asaeasora..Lots..9, 6,.5,10,11 . . •
Statement made this 11 day of . June ,lg el .
A11D OF ASSESSORS
CotiDi0Y1VF.ALTH OF b1ASSACHUSE•CPS
18
Then,personalir pinalred Edward.N. Phelan a member of the Board u
Of Asses;ors.of.lt�elty/town of . NORTH AN DOVER and acknowledged the foregoing
instruglcht*-o tV.�t-h-i flee act and deed o: the Board of Assessors of. No TH ANDOVER
Cz
before.mtr,
rum
• Recorded June 19,1981 at 2t51PM 06228
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_, ...AFFIDAVIT
194 1.
;s
I, Edward N. Phelan, Chairman of the Board of Assessors
3 for the Town of North Andover, Massachusetts, swear to the
ak following facts based upon personal knowledge and say that on
June 11, 1981 the Board of Assessors signed a certificate with
respect to an application of George R. Barker, Jr., in
accordance with Massachusetts General Law Chapter 61A with
respect to an Agricultural or Horticultural Land Tax Lienj }
that the certificate was recorded with Essex North District ti
Registry of Deeds at Book 1512, Page 238; that the property '
t < described included Assessor's Plan 34, Assessor's Lot 8; that
the inclusion of Assessor's Plan 34, Assessor's Lot 8 was in
error; that said lot was never assessed in accordance with the
Agricultural or Horticultural Land Tax Lien, and the.Town of
North Andover has never treated Plan 34, Lot 8 as agricultural i
or horticultural land. _
The Town of North Andover never intended to create, nor
does it now have an Agricultural or Horticultural Land Tax
Lien with respect to Assessor's Plan 34, Assessor's Lot 8. ; Y
This Affidavit is given to correct the record at Essex
North District Registry of Deeds.
J
Signed under the pains and penalties of.perjury.
i �0 cJ ?'
Iate Edward w. Phelan, Chairman
of the Board of Assessors
1 `: 1
COMMONWEALTH OF CASSACHUSETTS
Essex, SS. June /� 1984 :+
Subscribed and sworn to before me by Edward W. Phelan, ;
Chairman of the Board of Assessors for the Town of North
Andover, Massachusetts.
Notary Public
1
1
My commission expires: 3/25/88
Recorded June 1,1984 at 4:31PI•i #9483
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Alactronics
192WorcesterSt, Wellesley,MA 02181
617/239-0000
April 5, 2000
Mr. Phil Posner
AT&T Wireless Services
400 Blue Hill Drive, Suite 100 -
Westwood, MA 02090-2161
Dear Phil,
Here are the results of the noise impact study for the E-445 site, to be located behind an existing barn on
the Barker Farm at 1267 Osgood Street in North Andover, Massachusetts. I was able to acquire good field
data at approximately 7:OOPM on April 4, 2000. The ambient noise levels were measured at 53 dBA at a
point on the property line along Barker and Osgood Streets closest to the proposed equipment shed.
Occasional transitory noises was noted from airplanes, (75 dBA) and automobiles, (78 dBA).
The most significant noise source from the AT&T equipment will be from an air conditioning unit, most
likely a single Marvair 3.5 ton mounted to the exterior wall of the equipment cabinet. This unit is similar,
but smaller in size than most residential central air conditioner units. The calculated noise level from this
unit varies with distance and at approximately 45 feet from the air conditioner will drop below the ambient
level. The calculated noise level from the air conditioner at the nearest property line on Osgood Street,
(approximately 220 feet away),will be 37dBA,approximately 15 dB below the ambient level. Under these
conditions, the AT&T equipment noise will be significantly lower than the ambient conditions.
Please feel free to call if you have any questions,or if I can be of further assistance.
Sincerely,
Bob Alach
Alactronics, Inc.
F
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OWNER'S CONSENT TO MUNICIPAL DEVELOPMENT APPLICATION
Commonwealth of Massachusetts May , 2000
County of Essex
We, Dorothea C. Barker, Elizabeth E. Barker and Karen Barker, Trustees of the Dorothea C.
Barker Personal Residential Trust, u/d/t dated April 28, 1994 and recorded with the Essex North
District Registry of Deeds in Book4038, Page 68, owners in fee of the subject property known
as 1267 Osgood Street, Lot 12 in the Town of North Andover, Essex County, Massachusetts,
grant the applicant,AT&T WIRELESS SERVICES, PCS, LLC by and through its agent,AT&T
WIRELESS SERVICES, INC., a Delaware corporation, with offices at 15 East Midland Avenue,
Paramus,New Jersey 07652 ("AT&T Wireless Services"), the authority to make the within
zoning application and the undersigned hereby consents-to the making of same.
I, George R. Barker, Jr., owner of a life estate in the subject property known as 1267 Osgood
Street, Lot 12, in the Town of North Andover, Essex County, Massachusetts, as reserved by me
as grantor of a deed dated April 28, 1994 and recorded with the Essex North District Registry of
Deeds in Book 4038, Page 66, as confirmed in a deed of Dorothea C. Barker recorded in said ,
Deeds in Book 4038, Page 79, grant AT&T Wireless Services the authority to make the within
zoning application and the undersigned hereby consents to the making of same.
I, Dorothea C. Barker, owner of a life estate in the subject property known as 1267 Osgood
Street, Lot 12, in the Town of North Andover, Essex County, Massachusetts, as reserved by me
as grantor of a deed recorded with the Essex North District Registry of Deeds in Book 4038,
Page 79, grant AT&T Wireless Services the authority to make the within zoning application and
the undersigned hereby consents to the making of same.
e?D Cys C ��-
Dorothea C. Barker, as Trustee of the
Dorothea C. Barker Personal Residence
Trust
Eliza eth E. Barker, as Trustee of the
Dorothea C. Barker Personal Residence
Trust
Karen Barker;as Trustee of the
Dorothea C. Barker Personal Residence
Trust
r
George . Barker, Jr., Owner of a fe
Estate, as aforesaid
6,7 e • ��"-2/
Dorothea C. Barker, Owner of a Life -
Estate, as aforesaid
Subscribed and sworn to before me on this day of , 2000.
Notary Public
My commission expires:
atl\n.andbarkcr\rn\owncr'sconsent00
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ACTUAL DIMENSIONS: Southborough Flagpole (110' AGL)
Top Section: 13' 0" long by 9 3/4" in diameter
Second Section: _24' 3" long by 10 3/4" in diameter
Third Section: 24' 3" long by 14" in diameter
Fourth Section: 24' 3" long by 16" in diameter
Bottom Section: 24' 3" long by 18" in diameter
ACTUAL DIMENSIONS: Canton Flagpole (115' AGL)
Top Section: 19' long by 18" in diameter
Second Section: 52' long by 18.00" to 23.377" in diameter
Bottom Section: 46' long by 22.692" to 27.500" in diameter
atttntattapstclub�rn\dimens ions.wpd
J
JOHN P ALLEN
AIRSPACE CONSULTANTS, INC.
P.O. BOX 1008
` FERNANDINA BEACH,FL 32035-1008*
JOHN P. ALLEN TELEPHONE (904)261-6523
MARY C. LOWE FAX (904)277-3651
March 24, 2000
Mr. Joe Sweet -
AT&T Wireless Services - -
400 Blue Hill Drive, Suite 100
Westwood, MA 02090
Dear Joe:
Pursuant to your request an aeronautical evaluation was conducted
near the Barker Farm site area, Massachusetts (SITE E446) for your
proposed antenna tower application. The aeronautical evaluation
was conducted in accordance with the standards for determining
obstructions to the navigable airspace as set forth in Subpart C
of Part 77 of the Federal Aviation Regulations.
COORDINATES: Latitude 42-43-17 . 40 N - Longitude 71-06-37 . 00 W
(NORTH AMERICAN DATUM - 1983 )
HEIGHT: 170 feet AMSL 120 feet AGL 290 feet AMSL
The evaluation disclosed that the proposed site is located 0 . 31
nautical miles from the Lawrence Municipal Airport reference
point. The proposal as specified does not exceed the standards of
Part 77 . Notice to the FAA has been provided and the FAA will not
require marking and lighting.
The nearest private airport, Lawrence General Hospital Heliport,
is located 1 .91 nautical miles from the proposed site. The
nearest AM radio station, WLLH, is located 2 . 88 statute miles
from the proposed site.
If there are any questions regarding the evaluation, please do
not hesitate to call .
Sincerely,
Aar C . Lowe
Vice President
SHIPPING ONLY 905 S.b*STREET,FERNANDINA BEACH.FL 32034
Federal Aviation Administration AERONAUTICAL STUDY
NEW ENGLAND REGION, ANE-520 No: 00-ANE-0216-0E
12 NEW ENGLAND EXECUTIVE PARKS
BURLINGTON, MA 01803
ISSUED DATE: 04/03/00
JOE SWEET
AT&T WIRELESS
400 BLUE HILL DR, SUITE 100
WESTWOOD, MA 02090
** THIS IS NOT A DETERMINATION **The Federal Aviation Administration has received your notice
concerning:
Description: ANTENNA TOWER
1900 MHZ 76 WATT ERP
Location: NORTH ANDOVER MA
Latitude : 42-43-17.40 NAD 83
Longitude : 071-06-37. 00
Heights : 120 feet above ground level (AGL)
290 feet above mean sea level (AMSL)
NOTE: If the coordinates of your notice were submitted in
NAD 27 datum, they have been converted to NAD 83 datum
as shown above. NAD 83 datum will be referenced on all future
correspondence and will be used for the purpose of this study.
Your notice has been assigned Aeronautical Study Number
00-ANE-0216-OE and we are in the process of conducting an
aeronautical study to determine the effect on air navigation.
A determination or response will be forthcoming.
Please inform involved consultants of this correspondence.
If you have any questions, please contact SUZANNE E. DEMPSEY
at 781-238-7522. On any future correspondence concerning
this matter, please refer to Aeronautical Study Number
00-ANE-0216-OE.
(REC)
s
JOHN P. ALLEN
AIRSPACE CONSULTANTS, INC.
P.O, BOX 1008
FERNANDINA BEACH,FL 32035-1008*
JOHN P. ALLEN TELEPHONE (904)261-6523
MARY C. LOWE FAX (904)277-3651
March 24, 2000
Mr. Dave Bayley
Federal Aviation Administration
New England Regional Office/ANE-520
12 New England Executive Park
Burlington, Massachusetts 01803
Dear Dave:
The purpose of this letter is to request an aeronautical
evaluation on the enclosed proposed antenna tower application
located near North Andover, MA.
Preliminary review indicates that the proposed tower will not
exceed the standards for determining obstructions to the
navigable airspace as set forth in Subpart C of Part 77 of the
Federal Aviation Regulations _
MARKING AND LIGHTING: NONE
If there are any questions, please do not hesitate to call . Thank
you for your cooperation in this matter.
Sincerely
Mary C. Lowe
Vice President
Enclosure
cc : Joe Sweet
SHIPPING ONLY 905 S.8`STREET,FERNANDINA BEACH.FL 32034
Form Approved OM13 N0.2120-0001
• Notice of Proposed Aeronautical Study Number
vSOMAvl"y°A&ft *vh, Construction or Alteration
FeoOr'rrl Avbrbrr Adfnuw�giar,
1. Nature of-Proposal 2.Com tete Description of Structure
A.type 13.Class C.Work Schedule Oates Please describe the proposed oonstnrcfion or ahsration.
zNew Construction Z Permanent05/23/2000
+9 A For proposals involving uarurnining stations,include
[j Alteration* ❑Temporary(Ouration months) F11d 08/23/2000 effective radiated power(ERP)and assigned frequency. It
tt 0 Alteration.provide previous FAA Aeronautical Study Number,d available: not known,give frequency band and maximum ERP.
3A. Name,address,and telephone number of indirrdual,company corporation.etc.proposing the S.For proposals involving overhead Wire,transmission lines.
construction or alteration. (Number,Street Cay.State,aria Z;p Code) etc..Include the site and the configuration of the wires and
JOE SWEET E 446 their supporting structures.
AT&T WIRELESS C.For buildngs,include site orientation,dimensions.and
construction materials of the proposed or altered structure.
WE STWOOD,MA 02090 inBLUE HILL DRIVE SUITE 100 0.Optional—Describe the type of obstruction marking and
lighting system desired.The FAA will consider this their
( (781) ) 407-4520 study. _
Area Code Telephone Number _ -
3f3 Name,address and telephone number of proponents representative.X different than 3A.above.
JOHN P.ALLEN
JOHN P.ALLEN AIRSPACE CONSULTANTS,INC. See Attached
P.O.BOX 1008
FERNANDINA BEACH,FL. 32035
( (904) ) 261-6523
Area Code Telephone Number
4. Location Of Structure S. Height and Elevation no newoor toot,
A.Coordinates1 t",o,,,,4 as 6eoi0� 8.Nearest City or Town C:Nearest public«military airport, A.Elevation of site above mean
and State hellport fligNpark,or seaplane base sea teve4.
Latitude 0 w
42 43 17.40 North Andover,MA LWM:LAWRENCE MUNI 00170
Longitude o , „ (I I.Distance to 48 (1).Oistance from svucture to nearest l3 Height d structure inauafng an
71 06 37.0 point of nearest runway appurtenances aria a9hong aoo�e
2 statute miles .315 nm ground or water. 0120
40. Source of coordinate information
for Item all above. (2) Direction to 46 14 Direction from struewre to airport C Overaff hegnt above mean sea level
X]USGs 7.5' t� Other (A+81
Quad chart U Sunsy ❑Spec{ry, 225 degrees 241.67 degrees 00290
W;tm.rh-MMMCe coni~ 4E.Description of site location with respect to highways,streets,airports,prominent terrain,features,
NAD 27 n Na0 83 D Other existing structures,etc. Please attach a U.S.Geological Survey Map(or equivalent)showing the construction
Specify site.If available,attach a copy of a documented site survey with the surveyor's certification.
NNice is required by Pan 77 of the Federal Aviation'P490btions(14 C.F.R.Pan 77)pursuant 10 Section 1101 of the Fedsrat Aviation Act of 19%as amended 149 U.S.C.app.§15011.Persons who
1958 as xrnd "i9 violate Ifle U cop§Ot 471 a well requirements of P24 77 the rte(a suoject
a a cwN penally at St:0(70 per day wu the rwtice a receives pursuant io Section got a)of the Federal Aviation Aa d
( ( pena A of not more fort 1500 for the first dense and not more than$2.000 for tuoseWom offenses.pursuant to Section
a)of the FW&W Aviadoa Aa of 19A as amended(49 U.S.0 cop§1472(all.
I HEREBY CERTIFY that all of the above statements made by me are true,complete,and correct to the best of my knowledge.In addition,l
My**to obstruction mark and/or light the structure in accordance with established marling b lighting standards as necessary.
f?atc Ywwr N O.wrt M.rw.arYr Twp N Gw.w L;rw,wrr.. 9�fture ,� V
03/24/2000 JOHN P.ALLEN AIRSPACE CONSULTANTS,INC.
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Page 2 NOTICE OF PROPOSED
CONSTRUCTION OR ALTERATION
I et�uae: a2.43-17.40 Aeronautical Study Number
l.origltude: 71-0637.0
2- COMPLETE DESCRIPTION OF STRUCTURE AT: North Andover, MA
A-For proposals involving transmitting stations,including effective radiated power(ERP)and assigned frequency. If not known,give
frequency band and maximum ERP.
ANTENNA TOWER FREQ. 1900 MHZ ERP 76 W
B.For proposals involving overhead wire,transmission lines,etc.,include the size and the configuration of the wires and their
supporting structures.
1
C_For Buildings,include site orientation,dimensions,and construction materials.
D.Optional-Describe the type of obstruction marking and lighting system desired. The FAA will consider this in their study.
NONE
4. LOCATION OF STRUCTURE
4E-Description of site location with respect to highways,street,airports,prominent terrain,features,existing structures,etc-
Please attache a U.S.Geological Survey Map(or equivalent)showing the construction site. If available,attach a copy of a
documented site survey with the surveyor's sertification.
Consulting Report for Property Located—1267 Osgood Street,North Andover,MA 01845
`-� This is a Summary Consulting Report which is intended to comply with the reporting
requirements set forth under Standards Rule 5-2 of the Uniform Standards of Professional
DAppraisal Practice for a Consulting Assignment. As such, it presents only summary
discussions of the data, reasoning, and analyses that were used in the evaluation process to
develop the consultant's opinions. Supporting documentation concerning the data,
reasoning, and analyses is retained in the consultant's file. The depth of discussion
contained in this report is specific to the needs of the client and for the intended use stated
below. The consultants are not responsible for unauthorized use of this report.
DATE: May 8, 2000
TO: Steven D. Anderson Esquire
O q
Anderson&Kreiger LLP
The Bullfinch Building
47 Thorndike Street
Cambridge,MA 02114
FROM: J. Nathan Godfrey
Newport Appraisal Group, LLC
790 Aquidneck Avenue
Middletown,RI 02842
RE: AT&T Site E-445
1267 Osgood Street(Barker Farm)
Map 34 Lot 12
North Andover, MA 01845
I have evaluated the proposal to construct a 12 feet high wir ess communication flagpole style
monopole and associated equipment shelter-'-0� r Farm site. The monopole will house
the proposed AT&T Wireless communication facility. The purpose of my evaluation is to
determine if this proposed communication facility would have a negative impact on the general
character of the surrounding area, and to determine if the subject proposal meets the standards of
the municipal land use policy.
The conclusions reached in my analysis are based on my present knowledge with respect to the
impact of wireless communication facilities on their respective communities, as of the effective
date of this report May 3, 2000. Based upon the data gathered, and my analysis of the market
lace I have formed the following o
p g pinions:
�J
1
Consulting Report for Property Located—1267 Osgood Street,North Andover,MA 01845
1. My review of the subject petition indicates that this plan to construct the proposed wireless
communication facilities and their associated equipment in accordance with the stated plans
and specifications will not result in a material change to the existing character of the Barker
Is-�II Farm site. Therefore, I conclude the site is an appropriate location for the proposed use
U and structures. Conforms to Section 10.3.1.a of the bylaw.
2. The design and location of the proposed facility is sensitive to the surrounding residential
properties. The flagpole style design serves to minimize any visual impact from the proposed
wireless communication facility. After careful review of the plan, I have formed the opinion
that this proposal will not adversely affect the neighborhood. Conforms to Section
ri0.3.1.b of the bylaw.
D3. 11 My review of the neighborhood did not reveal any existing structures that would offer a
viable alternative location for the proposed wireless communication facility. Conforms to
Sections 8.9.3.b.9 and 8.9.6 of the bylaw.
4. The proposed use will not create any nuisance or serious hazard to vehicles or pedestrians.
Conforms to Section 10.3.1.c of the bylaw.
5. The requested use includes and incorporates the necessary accessory facilities including
safeguards to allow for the proper operation of such a facility. Conforms to Section 10.3.1
of the bylaw.
6. The special site conditions of this 19.3-acre parcel are unique and do not affect generally the
zoning district in which the property is located. Conforms to Section 10.4 of the bylaw.
7. The approval of this application, to construct the proposed wireless communication facilities
on the subject property will not result in a material change to the existing character of the
site or the neighborhood. Therefore, it is my professional opinion that this proposal is
consistent with the spirit and intention of the bylaw. The proposed use is in harmony with
the general purpose and intent of the North Andover Zoning Bylaw. Conforms to
Section 10.3.1.1e of the bylaw
L-�
L.1
2
Consulting Report for Property Located— 1267 Osgood Street,North Andover,MA 01845
Purpose and Intended Use of this Consulting Service 7
�J The purpose of this assignment is to determine if the proposed AT&T Wireless communication
facility will have a negative impact on the surrounding area, and to determine if the subject
proposal meets the standards of the municipal land use policy. This report will be included with
other materials to be presented to the North Andover Zoning Board of Review, Appeals &
Planning Board, and will be the basis for my verbal testimony.
Client Relationship
The client for this assignment is AT&T Wireless Services. My compensation for this consulting
service is not contingent upon the outcome of the application pending before the municipality.
1ri J Identification and Description of Real Estate
The subject property is located in the northerly end of North Andover, at the intersection of
Osgood Street and Barker Street. The site is further identified as Map 34, Lot 12, of the Tax
Assessor's Records of the Town of North Andover. The site, which consists of approximately
�} 19.3 acres of land, is mostly active crop fields. The existing physical improvements include a
�J traditional barn building, several outbuildings and residential dwelling.
The proposed wireless communication flagpole style monopole will be located adjacent to the
barn. The centerline of the proposed AT&T antennas will be located approximately 120 feet
above ground level (AGL). The equipment shelter will be fenced and located at the base of the
flagpole.
The site is a large parcel when compared to nearby and surrounding parcels. The uses on site
include the dwelling, traditional field crops and retail farm stand sales. The site is zoned R-2.
DI
n
3
Consulting Report for Property Located— 1267 Osgood Street North Andover MA 01845
i
Scope of the Assignment
In performing this consulting assignment, the evaluation process consisted of-
*
f• physical inspection of the subject property on March 15, 2000, and May 3, 2000,
including photographing the property and neighborhood inspection;
• research of the subject property in North Andover Town Hall;
• review subject zoning file, and interview with municipal staff,
• research on the region, city, and county is based on information available through
L1 State and Local Government Agencies;
• research on comparable sites and impact on residential neighborhoods was based on
information at various town and city halls, - interviews with municipal officials were
conducted; and,
• evaluated the data reconciled and formed an opinion, and provided a summaryre ort.
r
Neighborhood Description
A neighborhood is defined as "a group of complementary land uses."' Neighborhood boundaries
are drawn to include those uses within an area that are affected in the same way by the social,
economic, environmental, and governmental forces that influence property value. Neighborhood
boundaries may be determined by physical barriers (e.g. roadways and waterways), legal
nboundaries (e.g. zoning or city limits), availability of utilities and services, or by the change in
LJ land uses.
The subject area is generally everything northerly of Great Pond Road which is off of Osgood
Street. More specifically, the subject neighborhood is between Osgood Street and Barker Street
and includes the sides off of both. The northerly boundary would be the Haverhill town line or
Bradford Road.
The area is zoned a mixture of industrial and residential. The Industrial District encompasses
everything on the westerly side of Osgood Street, Birchwood Office Park and the Lucent
I Technology facility. Land uses in this area include a landfill, recycling cent and incinerator. The
The Appraisal Institute,The A raisal of Real Estate (Eleventh Edition, 1996),Page 189.
t�J
4
Consulting Report for Property Located— 1267 Osgood Street,North Andover,MA 01845
L '
residential district follows Barker Street up to Bradford Street. The side streets and residential
developments are very consistent with other residential sections of North Andover.
The area supports a wide variety of uses. Other significant non-residential uses include the
Lawrence Municipal Airport and typical retail strip development along Route 125. Therefore,
(� the subject property serves as a transition use zone whereby industrial uses on the westerly side
lu of Osgood Street give way to residential uses along Barker Street.
Neighborhood Map
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Consulting Report for Property Located—1267 Osgood Street,North Andover, MA 01845
Subject Property Photographs
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6
Consulting Report for Property Located— 1267 Osgood Street, North Andover, MA 01845
r Neighborhood Properties
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Consulting Report for Property Located—1267 Osgood Street, North Andover,MA 01845
Evaluation Work Plan
In order to evaluate the impact of this proposal on the character of the area I performed the
I
following tasks:
• conducted a survey of land uses in the area to establish the character of the neighborhood;
• inspected the subject location, and reviewed the plans filed with the petition;
• interviewed the applicant to ensure that I understood the nature and character of the intended
use;
• reviewed similar communication uses in other communities to determine if there has been
any history of adverse impacts to the character of the host community or any evidence of
diminishing property values that could be attributed to these types of facilities and have
conducted the following studies or research:
1. evaluated sales data before and after the introduction of a wireless communication
facility;
2. evaluated peer studies in both Rhode Island and Massachusetts, and researched
professional journals for national experiences;
3. surveyed municipalities throughout Rhode Island and Massachusetts to seek
information regarding their experience with these facilities;
4. surveyed real estate brokers active in areas where these facilities exist to determine
market reaction;
• reviewed the zoning bylaw for the Town of North Andover;
• identified the size and configuration of the subject site, the location of the proposed
communication facility on the site, and the relationship of the proposed facility to the
abutting properties;
• reviewed the photo renderings prepared by Tectonic Engineering Consultants,P. C.
L' • compared the character of the proposed use with those that currently exist on this site to
determine if there will be any substantial change;
• evaluated the proposed use of the property to determine if there were any features of the
j petition that might have a negative impact on the character of this neighborhood, or be
detrimental to surrounding property values; and,
�+ 9
�J
Consulting Report for Property Located— 1267 Osgood Street,North Andover,MA 01845
�' • evaluated the proposed use to determine if these proposals conform to the current municipal
land use policy for this class of use.
Findings of Fact
I reviewed the petition for any factors that might be adverse to the either the surrounding
properties, or the general community. My evaluation of this petition led me to the following
findings:
• The site contains approximately 19.3 acres of land is currently utilized for traditional
residential and agricultural uses. The size, shape and specific location of the site has special
features including Industrial and Residential surrounding zoning and subsequently different
land use patterns on the westerly and easterly sides of the property.
• The site is located in the R-2 Zoning District. The proposed wireless communication facility
is a permitted use subject to the receipt of a special use permit under the provisions of
r ; Section 8.3 (Site Plan Review), 8.9 (Wireless Service Facilities) and 10.3 (Special Permit) of
the North Andover Zoning By-law.
• The Zoning Bylaw may require variances from restrictions on the height of the facility to 10'
' above the average building height within 300' or, if no such buildings, 10' above average tree
canopy height. Section 8.9.3.c.i. and 8.9.3c.ii.
• The Zoning Bylaw requires dense tree growth to screen views. Sections 8.9.3.c.ii, 8.9.4.d.ii
and 8.9.4.d.ii.
• The Zoning Bylaw requires flagpoles to be setback 2x its height and 300' from a habitable
dwelling or business. Section 8.9.3.c.v.1.
• The Zoning Bylaw restricts color above vegetation to light grey or blue. Section 8.9.4.a.iii.2.
• The Zoning Bylaw requires fully enclosed containment for use of any hazardous materials.
Sections 8.9.4.e.ii.
# • The Zoning Bylaw requires escrow accounts for removal and maintenance activities.
Sections 8.9.9.c and 8.9.1 La.
10
Consulting Report for Property Located—1267 Osgood Street,North Andover,MA 01845
U
• The use proposed is a passive use. With the exception of the initial construction, it will not
(� be manned, and will not generate onsite activity, or increase traffic. The proposed facility
LS will be externally monitored via automatic onsite sensors, and apart from routine monthly
maintenance and inspections,there will b no visible activity associated with this facility.
• The use does not generate refuse or other waste.
• The site will not be lit, except as required by the FAA.
• The use has no employees, customers, or regular visitors and therefore requires no significant
parking area and has no traffic impacts.
• The use will not expand the need for Town services.
• The proposed site has the necessary geographic location, within the constraints of the
applicant's wireless network system, to support the proposed wireless communication
facility.
• The proposed communication facility will provide a modern wireless communication system
�j for the benefit of the residents and businesses of the Town of North Andover.
• My market research in other communities has not revealed any market trends that would
support adverse impacts associated with this type of communication facility:
1. In addition to my own studies I have reviewed peer studies performed in
Massachusetts and Rhode Island which support the conclusion that these facilities do
not adversely impact surrounding property values.
2. I did not find any formal studies on the introduction of comparable wireless facilities
that demonstrated an adverse impact on surrounding property values.
3. Surveys of municipalities did not reveal any pattern of complaints, regarding the
character of the use, which would indicate any adverse conditions. Tax Assessors
have generally not adjusted assessments to reflect the presence of wireless
communication facilities within or near to residential districts.
4. Surveys of real estate brokers did not reveal adverse trends. In the context of the real
estate market, the most compelling evidence is the lack of an industry wide reaction.
Literally hundreds of wireless communication facilities have been constructed during
the previous five years, and given the sophisticated nature of the real estate market
a
Consulting Report for Property Located—1267 Osgood Street,North Andover,MA 01845
and the skill and expertise of brokers and sellers and buyers I would expect that an
P Y P Y
adverse impacts on property values would be highly publicized.
A summary of the results of the municipal and broker surveys is presented in the final section
of this report.
D
• From a land use perspective, the proposed facilities will conform to the following provisions
of Section 8.9 of the bylaw which, governs Wireless Service Facilities:
1. The applicant has submitted a complete application package with all of the
required materials.
2. There are no feasible preexistent structures that could accommodate the necessary
facility and provide the desired coverage. To the greatest extent possible, the
applicants are providing a design that will result in a minimal visual impact.
{� Therefore the application conforms to Sections 8.9.3.a & b. (Use regulations
u and Location) of the bylaw.
3. The flagpole will not be lit at night except as required by the FAA. Signage shall
be limited to emergency number and identification. A suitable security fence shall
be installed and maintained around the facility. Conforms to Section 8.9.4.b. of
the bylaw.
4. The application does not result in any alteration of historic or architecturally
significant structure. Conforms to Section 8.9.4.c.i. of the bylaw.
5. The facility is not located within 300 feet of a Scenic Road. Conforms to Section
8.9.4.d.i. of the bylaw.
6. The proposed wireless services facility is not located in a wetland resource area.
No hazardous waste shall be discharged on the site. There is no generation of
noise, dust or smoke beyond acceptable levels. Conforms to Section 8.9.44 of
the bylaw.
7. The structural integrity of facility has been examined and certified as meeting or
exceeding current accepted industry standards by a structural engineer. The
Radiofrequency Radiation Standards for the proposed facility are within
acceptable guidelines and regulations. Conforms to Section 8.9.8.41i and ii. of
the bylaw.
12
Consulting Report for Property'Located—1267 Osgood Street,North Andover,MA 01845
Conclusions and Final Opinion
a After careful review of the facts and circumstances associated with this proposal I have formed
the following conclusions and opinions;
1. My review of the subject petition indicates that this plan to construct the proposed
wireless communication facility*and the associated equipment in accordance with the
stated plans and specifications will not result in a material change to the existing
character of the Barker Farm site. Therefore, I conclude the site is an appropriate
ro riate
location for the proposed use. Conforms to the Stated Purpose of the Wireless
Service Facilities Section of the bylaw(8.9).
2. The design and location of the proposed facility is sensitive to the surrounding residential
properties. After careful review of the plan, I have formed the opinion that this proposal
will not adversely impact historic structures or scenic views. Conforms to Sections
8.9.4.b. and d. of the bylaw.
3. My review of the neighborhood did not reveal any existing structures that would offer a
viable alternative location for the proposed wireless communication facility. Conforms
to Section 8.9.43.b.9 and 8.9.6. of the bylaw.
4. The proposed use is permitted by special use permit in the R-2 Zoning District and meets
the special permit conditions. Conforms to Section 10.31.1 of the bylaw.
5. The requested use is a passive use in that the proposed wireless communication facility
will not be manned, and will not generate any disturbances such as additional traffic,
lighting, odors, smoke, noise, or other nuisance in the area. Conforms to the spirit
and intent of the Zoning Bylaw.
6. After reviewing the petition, and taking into account the general purpose and intent of the
municipal bylaws I have concluded that the requested variances will not result in a
j substantial detriment to the public good; and will not nullify or substantially
derogate from the intent or purpose of the zoning bylaw. Conforms to Sections 8.9
and 10.31.1.e of the bylaw.
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Consulting Report for Property Located—1267 Osgood Street,North Andover,MA 01845
i
7. The approval of this application, to construct the proposed wireless communication
facility on the subject property will not result in a material change to the existing character of
the site or the neighborhood. Therefore, it is my professional opinion that this proposal will
{� not result in a negative impact on the surrounding properties or upon the wider community,
�I and that the proposed use is in harmony with the general purpose and intent of the
North Andover Zoning Bylaw.
Municipal/Broker Surveys
As a part of our general market research, a Municipal and Real Estate Broker survey was
conducted. The municipal survey involved contacts with municipal staff, including managers,
zoning/building/planning officials, and tax assessors. The Broker survey was less comprehensive
involving contact with.one or more brokers in each area.
aSurvey Questions:
1. Have you received complaints about nuisance or other aspect of the use and maintenance of
�j operating wireless communication facilities in your community?
2. Do you have reason to believe these facilities have created adverse conditions in
neighborhoods or have had a negative impact on your community?
3. Does the Tax Assessor negatively adjust residential property values for proximity to wireless
communication facilities?
Responses are noted as Yes,No,N/A(not applicable),NR(no response)
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Consulting Report for Property Located—1267 Osgood Street,North Andover,MA 01845
Massachusetts Survey 1999
Com nesnon 1 uesfloo t uestlon 3 Comments
Attleboro Yes No No 1 Reported TV interference
Bellingham No NR NR
Boxford No No No 1
Brookline N/A N/A NR No sites
Canton No No NR 1
Concord (No) (Yes) (No) 1 Broker reported adverse buyer reaction to a tower site.
Dartmouth No No NR 1
Gloucester No No No 1
Groveland N/A N/A N/A 1 None yet
Lincoln (No) (No) (No) 1
Lynnfield No No No 1
Medfield No No N/A 1 Site only constructed 4 months
Norton No No NR 1
fU Plymouth No No N/A I
Reading No No No 1
(�} Rockport No No N/A l
1 ` Scituate No No No I
�J Seekonk No No No 1
Southborough No Yes N/A 1 Broker reported adverse buyer reaction to a tower site.
Waltham No No No 1
Weston Yes No No t Reported interference and music in basement.
( )Wireless site reported to be in litigation
1 Newport Appraisal Group has prepared impact reports on existing/proposed wireless communication facilities in these communities
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Consulting Report for Property Located— 1267 Osgood Street,North Andover,MA 01845
Rhode Island Survey-1997
DCorrtrnunt esdon 1 estion 2 esuon 3 Comments
Barrington No No NR
{� Bristol No No NR 1
Central Falls N/A N/A N/A
-' Charlestown No No No
Coventry N/A NA NA No sites
Cranston No No NR
Cumberland NA N/A NA 1
East Greenwich No No No 1
East Providence No No No
Exeter No No No
Jamestown Yes No No 1 Wanted equipment shed to be covered with bushes
Johnston No No No 1
Lincoln No NR NR 1 Not allowed in Res zones
Little Compton NA NA NA No sites
Middletown No No No 1
Narragansett No No NR
North Kingstown Yes NR No 1
North Smithfield NR No No
Pawtucket No No No
Portsmouth No No No 1
Providence NR NR NR 1
Richmond NR NR NR opposition to tower proposal
Smithfield No No No 1
I South Kingstown NA NA NA 1 Police station only
Lj Tiverton NR No No
Warwick No Yes NR 1 Fighting AT&T in'97/Planner feels it impacts value
Westerly NR No No
West Greenwich N/A N/A NA 1 application to date
West Warwick NR NR NR
Woonsocket NA NA NA No sites
Warren NR NR NR
1 Newport Appraisal Group has Prepared impact reports on erasting/pnoposed wireless corrunuracation facilities in these comic n unities
The surveys were aimed at determining if the introduction of wireless communication facilities in
communities had resulted in complaints regarding the character of the use. Clearly many
communities have been opposed to, or their land use policy did not provide for this use.
However, the surveys were intended to sample communities experiences of existing uses, rather
than to elicit reactions to proposed sites.
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Consulting Report for Pro arty Located—1267 Osgood Street,North Andover,MA 01845
The results of the Massachusetts survey suggest that in the majority of cases the municipalities
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have not received complaints regarding the operation of existing facilities within their
a community. There are isolated reports of radio and TV interference, but I am not aware of
complaints of radio or TV interference that have proven to be associated with an AT&T Wireless
Services communication or comparable low power facility. Therefore, I have concluded that the
character of the operation of these sites is not creating a nuisance, or creating conditions adverse
to the appropriate use of surrounding land.
The results of the Massachusetts broker survey are less reliable as many respondents did not have
knowledge of the issue. In most cases, opinions were offered pro and con without a lot of
support. When specific cases of buyer adverse reaction to existing tower sites were reported,
there had been no attempt to qualify whether other neighborhood factors were contributing to the
response. Some brokers offered the opinion that potential buyers in higher priced communities
awould have greater reaction to the visual presence of tower facilities and high-tension
LJ transmission towers. No broker provided any actual sales data to support adverse impacts on
residential property values.
While the survey of real estate brokers is not considered to be as reliable as the municipal survey
it did not indicate any market trends that would suggest these facilities have had a negative
impact on residential property values. In the context of the wider real estate market, the most
compelling evidence is the lack of an industry wide reaction. Literally hundreds of wireless
communication facilities have been constructed during the previous five years, and given the
sophisticated nature of the real estate market and the skill and expertise of brokers and sellers and
�j buyers I would expect that any adverse impacts on property values would be highly publicized.
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Limiting Conditions
This is a Summary Consulting Report which is intended to comply with the reporting
requirements set forth under Standards Rule 5-2 of the Uniform Standards of Professional
Appraisal Practice for a Consulting Assignment. As such, it presents only summary
discussions of the data, reasoning, and analyses that were used in the evaluation process to
L� develop the consultant's opinions. Supporting documentation concerning the data,
l� reasoning, and analyses is retained in the consultant's file. The depth of discussion
contained in this report is specific to the needs of the client and for the intended use stated
below. The consultants are not responsible for unauthorized use of this report.
The certification of the consultant appearing in the consulting report is subject to the following
conditions and to such other specific and limiting conditions as are set forth by the consultant in
the report:
C+ The consultants do not assume responsibility for matters of a legal nature affecting the
property appraised or the title thereto; nor does the consultant render any opinion as to the
title,which is assumed to be good and marketable.
• Information, estimates, and opinions furnished to the consultants, and contained in the
report, are obtained from sources considered reliable and believed to be true and correct.
The consultant, however, for the accuracy of such items furnished can assume no
responsibility.
• The Bylaws and Regulations of the professional appraisal organization(s) with which the
consultant is affiliated govern disclosure of the contents of the consulting report.
• This report constitutes a Consulting Assignment presented in a Summary Report.
• The conclusions apply only to the property specifically identified and described herein.
• The consultants have made no legal survey nor have they commissioned one to be
prepared. Therefore, reference to a sketch, plat, diagram, or previous survey appearing in
the report is only for assisting the reader to visualize the property.
• Should it occur that any of the assumptions in this report prove to be in material error the
results of this report are subject to review and revision.
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Certification
We certify,to the best of our knowledge and belief
• Reported statements of fact are true and correct.
Reported analysis, opinions, and conclusions are limited only by the reported assumptions
and limiting conditions and is our unbiased professional analyses, opinions, and conclusions.
• We have no present or prospective interest in the property that is the subject of this report,
and we have no professional interest or bias with respect to the parties involved.
• Reported analysis, opinions, and conclusions were developed, and this report conforms to the
Standards of Professional Appraisal Practice and the Code of Professional Ethics of the
National Association of Independent Fee Appraisers and the Appraisal Institute. The use of
this report is subject to the requirements of these professional organizations relating to review
by its duly authorized representatives.
e Our compensation is not contingent upon the reporting of a predetermined value/opinion or
direction in value/opinion that favors the cause of the client, the attainment of a stipulated
n result, or the occurrence of a subsequent event.
• This report complies with the Uniform Standards of Professional Appraisal Practice as
published by The Appraisal Foundation.
• J. Nathan Godfrey made a personal visit to the real estate that is the subject of this report. No
one provided significant professional assistance to the persons signing this report.
Respectfully submitted,
L1
Nathan Godfrey
Rhode Island Licens : Residential, #A00479R
Connecticut License'No: Residential, #835
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Oualifications
OQUALIFICATIONS OF J.NATHAN GODFREY
Office: 790 Aquidneck Avenue,Middletown,Rhode Island 02842
aPhone(401)846-1356,Fax(401)846-8952
Position: Principal/Managing partner Commercial and residential property consultant
Certifications: State of Rhode Island Appraiser,Residential,#A00479R
State of Connecticut Appraiser,#000835
Education: Johnson and Wales College,Bachelor of Science, 1985
Appraisal Courses Completed:
Appraisal Institute- 101/Introduction to Appraising(1992)
Appraisal Institute-Capitalization Theory&Technique,Part A(1992)
Appraisal Institute-Standards of Professional Practice,Part A(1993)
oAppraisal Institute-Standards of Professional Practice,Part B(1995)
Appraisal Institute-Standards of Professional Practice,Part C(1998)
DSeminars: Appraisal Institute-Americans with Disabilities Act Seminar(1992)
Appraisal Institute-Market Extractions-Income Properties(1995)
Appraisal Institute-Appraisal of Retail Properties(1995)
Appraisal Institute-Data Confirmation and Verification Methods(1995)
Appraisal Institute-The Appraiser as Expert Witness(1995)
Appraisal Institute-Appraising 14 Family Income Producing Properties(1996)
Appraisal Institute-Appraising High Value and Historic Homes(1997)
a Appraisal Institute—Marina Valuation Seminar(1999)
Appraisal Institute—Federal Land Acquisitions and Exchanges(2000)
Professional Experience:
Newport Appraisal Group, LLC (1997 through present) Principal. Commercial and residential
property valuation,expert testimony,consulting services,tax appeal representation.
aHogan Appraisal Associates, Inc.(1991 through 1996) Commercial and residential property valuation
and data collection
Expert testimony: Jamestown, Middletown,Newport, South Kingstown, Tiverton, Warren, Westerly,
and Westerly Rhode Island Zoning Boards of Review,Middletown Town Council,Westwood,Canton,
Sharon Massachusetts Zoning Boards of Review
Community Service: Member of the Planning Board, Town of Narragansett, Real Estate Appraisers Board, Appointed by
OGovernor Lincoln Almond
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ANDERSON KREIGER LLP
Attorneys at Lazo
STEPHEN D.ANDERSON The Bulfinch Building ACHESON H.CALLAGHAN
Also admitted in CT 47 Thorndike Street Of Counsel
Cambridge,MA 02141 DOUGLAS H.WILKINS
ARTHUR P.KREIGER (617) 252-6575 Of Counsel
Also admitted in NY Fax: (617) 252-6899
PETERJ.CURA
GEORGE A.HALL,JR. RACHEL GRAHAM EVANS
Also admitted in NH JEFFREY L.ROELOFS
e�
June 30, 2000
Zoning Board of Appeals
Town of North Andover
Office of Community
Development& Services
27 Charles Street
North Andover, MA 01845
RE: Applicant: AT&T Wireless PCS LLC by and through its Agent AT&T Wireless
Services, Inc. d/b/a AT&T Wireless Services
Site: 1267 Osgood Street,North Andover(Map 34, Lot 12)
Dear Members of the Board:
At the public hearing on June 20, 2000, members of the Board of Appeals inquired about
the size of the American Flag that would be provided with the proposed flagpole at the Barker
Farm property. The exact dimensions of the flag are subject to the findings of the final structural
analysis on the flagpole and its foundation to be performed at the time the flagpole is ordered.
However,based on past experience and discussions with a manufacturer's representative, AT&T
Wireless Services anticipates that the dimensions will be approximately 10 feet by 15 feet.
Also at the public hearing,members of the Board of Appeals inquired about the status of
the litigation with respect to the approved installation at the Boston Hill Road site. By Decision
filed in the Town Clerk's office on April 21, 1999,the Planning Board granted a special permit
to AT&T Wireless Services to install and operate a wireless communication facility consisting of
an antenna array (to be mounted on the existing lattice tower) and certain electronic and
telephone equipment(to be installed on the second floor of the existing building that serves as
the base of the lattice tower) at 5 Boston Hill Road,North Andover(Exhibit A). By Complaint
filed in Land Court on May 11, 1999, Boston Hill Development, LLC, appealed the issuance of
Ct Printed on recycled paper
Zoning Board of Appeals
Town of North Andover
June 30, 2000
Page 2
the special permit under G.L. c. 40A, § 17,Docket No. 256427 (Exhibit B). Having been unable
to resolve the appeal through alternative dispute resolution initiated by the Land Court(see
Exhibit C, Docket Sheet entry of June 15, 1999),AT&T Wireless Services has moved for
Summary Judgment(Exhibit D) and has supported its Motion with a 20 page Memorandum filed
on May 22, 2000 (Exhibit E). Oral argument on that Motion has been scheduled by the Land
Court on October 3, 2000 at 2:00 P.M. (Exhibit F).
Having been granted the special permit by the Planning Board, AT&T Wireless Services
has during the pendency of the litigation temporarily installed, at risk,three closely mounted
antennas (Model No. DB966DDH90EM,Exhibit G) on the existing tower at the approved height
and has installed related telecommunications equipment in the existing building at the site.
Assuming that the litigation concludes in AT&T Wireless Services' favor, it would then install
the full array of nine antennas (Model No. DB950G85E-M,Exhibit H) approved by the special
permit in place of the three temporary antennas. In the unlikely event that the litigation were to
conclude adversely to AT&T Wireless Services, it would remove the temporary antennas from
the existing tower and the equipment from the existing building and seek an alternative site in the
immediate area for its needed installation. Since the Planning Board has approved the proposed
facility and a number of other carriers already have facilities in operation on the existing tower,
AT&T Wireless Services believes that this approach both avoids the irreparable harm that would
otherwise be occasioned by the delay associated with the litigation and serves the public interest
in the immediate availability of improved telecommunication services to North Andover.'
Following the Board of Appeals' initial public hearing on the Boston Hill matter and
during the course of preparing this response, AT&T Wireless Services has revisited the terms of
the approved special permit for the Boston Hill property. By copy of this letter, AT&T Wireless
Services is requesting the opportunity to meet with the Town Planner and/or the Planning Board
to discuss the temporary installation and a procedure for voluntary implementation with respect
' As Chief Justice Tauro recently stated in allowing the immediate installation of antennas and
equipment on an existing tower after a Town Board had denied a permit for the installation:
Every day that Plaintiff s special permit is denied is a day Plaintiff loses against its major
competitors,whose antennae presently are attached to the Tower. In today's quickly
advancing world of telecommunications services,the costs of delay cannot be
understated. The"balance of equities"and"public interest"factors further favor
allowing the motion. In contrast to Plaintiffs potential losses,Defendants lose virtually
nothing by granting the special permit,other than the effect of prohibiting Plaintiffs
construction of its antennae on the Tower. ... [Ilt cannot be contested that the addition of
Plaintiff to the marketplace will be in the public interest. A basic premise of the TCA is
"to increase competition in the telecommunications industry."
Telecom Realty LLC v.Town of Edsartown,81 F.Su[p'p2d 257,261 (2000)(citations omitted)..2
ANDERSON( G�KRUGER LLP
rnryv
Attos at Law
C Printed on recycled paper
Zoning Board of Appeals
Town of North Andover
June 30, 2000
Page 3
thereto of the conditions of the special permit for the permanent installation, pending final
resolution of the litigation over the special permit. Because the permitting and litigation
concerning the Boston Hill site has been handled for AT&T Wireless Services by a different law
firm, counsel from that firm will contact Town Counsel in an effort to arrange such a meeting to
discuss this issue further. AT&T Wireless Services will, of course, cooperate with the Planning
Board regarding the Boston Hill site and would be willing to discontinue the use of the
temporary, at risk installation before the resolution of the litigation in the event that the Planning
Board determines that to be the appropriate course of action.
For your convenience, I have enclosed the original and nine copies of this letter and its
enclosures. If the Board needs additional copies or has any questions, please let me know.
Sincerely,
Stephen D. Anderson, Esq.
Sanderson i_an dersonkreigel.com
Enclosures
SDA/kmf
cc: Sam El-Khairi (by email w/o encl.)
Catherine Blue, Esq. (by email w/o encl.)
Tom Schnorr, Esq. (by email w/o encl. and mail w/encl.)
Heidi Griffin, North Andover Planning Board
att\n.andbarker\I\zba013.wpd
ANDERSON&KREIGER LLP
ra
Attoeys at Lam
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A
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Town of North Andover t "ORTk
G OFFICE OF o
COMMUNITY DEVELOPMENT AND SERVICES °
M •
30 School Street '
North Andover Massachusetts 0 184 ' '°••.,° 5
WILLIAM J.SCOTT - aS�cHusE��
Director NOTICE OF DECISION
Any appeal shall be filled �r
within (20) days after the
date of filling this Notice
in the Office of the Town
Clerk.
Date April 21,1999
Date of Hearing MArch 16, 1999, April 6, 1999
April 20, 1999
Petition of AT & T Wireless
Premises affected5 Boston.Hill Road
Referring to the above petition for a special permit from the
requirements of the North Andover zoning Bylaw section 8.9
so as to allow to install and operate, on a parcel of privately owned land at 5 Boston
Hill Road wireless communications facilities consisting of an antenna array& certain radio elect
nic & telephone equipment
After a public hearing given on the above date, the Planning Board
voted to APPROVE the Special Permit
following based upon theg conditions:
1
Signe x,f ,L�i.�:�
CC: Director of Public Works Richard S.Rowen, Chairman
Building Inspector
Natural Resource/Land Use Planner Alison Lescarbeau, V. Chairman
Health Sanitarian
Assessors John Simons. Clerk
Police Chief
Fire Chief Richard Ni rdella
Applicant
Engineer Joseph V. Mahoney
Towns Outside Consultant
File Planning Board
Interested Parties
CO`ISERVATION-(978)688 9530 • IIE.ALTH-(978)688-9540 • PL.INNLNC-(978)688-9535
AT & T Wireless Services—5 Boston Hill Road
Special Permit
The Planning Board herein approves the Special Permit to install and operate, on a parcel
of privately owned land at 5 Boston Hill Road wireless communications facilities
consisting of an antenna array (to be mounted to existing steel lattice tower) and certain
radio electronic and telephone equipment (to be installed on second floor of existing
building that serves as the base of the lattice tower) in the Village Residential Zoning
District. This Special Permit was requested by AT & T Wireless PCS, 400 Blue Hill
Drive, Suite 100, Westwood, MA 02090-2161. This application and additional
documentation as cited herein was filed with the Planning Board on February 16, 1999
with subsequent submittals on file.
The Planning Board makes the following findings as required by the North Andover
Zoning Bylaw Section 8.9:
FINDINGS OF FACT:
1. The specific site is an appropriate location for the project as it is being collocated on
an existing wireless location.
2. The use as developed will not adversely affect the neighborhood as indicated by the
analysis conducted by AT&T and Donald Haes.
J. The carrier has demonstrated that the facility is necessary in order to provide adequate
e
service to thublic.
p
4. TheP lan meets the requirements of the Wireless Service Facilities by-law section 8.9.
5. Adequate and appropriate facilities will be provided for the proper operation of the
proposed use.
Finally the Planning Board finds that this project generally complies with the Town of
North Andover Zoning Bylaw requirements as listed in Section 8.9 but requires conditions
in order to be fully in compliance. The Planning Board hereby grants an approval to the
applicant provided the following conditions are met:
SPECIAL CONDITIONS:
1: Discontinuance Abandonment
a) At such time that a licensed carrier plans to abandon or di ontinue operation of a
wireless service facility, such carrier will notify the Town by certified US mail of
the proposed date of abandonment or discontinuation of operations. Such notice
shall be given no less than 30 days prior to abandonment or discontinuation of
AT&T Wireless Services—5 Boston Hill Road 1
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operations. In the event that a licensed carridr fails to give such notice,►the wireless
service facility shall be considered abandoned upon discontinuation of operations.
b) Upon abandonment or discontinuation of use, the carrier shall physically remove
the wireless service facility within 90 days from the date of abandonment or
discontinuation of use. "Physically remove" shall include, but not be limited to:
i) Removal of antennas, mount, equipment shelters and security barriers from the
_ subject property.
ii) Proper disposal of the waste materials from the site in accordance with local
and state solid waste disposal regulations.
iii) Restoring the location of the wireless service facility to its natural condition,
except that any landscaping and grading shall remain the after-condition.
c) As a condition of any special permit for the placement, construction or
modification of a wireless service facility, a carrier shall place into escrow a sum of
money to cover the costs of removing the facility from the subject property. Said
amount shall be certified by an engineer, architect or other qualified professional
registered to practice in the Commonwealth of Massachusetts. Said fi.ulds shall be
held by an independent escrow agent to be appointed by the carrier and the SPGR.
The carrier shall authorize and, as necessary, shall obtain the authorization of the
owner of the property to allow the escrow agent to enter upon the subject property
to remove the facility when the facility has been abandoned or discontinued. In the
event the posted amount does not cover the cost of demolition and/or removal the
Town may place a lien upon the property covering the difference in cost.
d) A facility shall be deemed to be abandoned or discontinued if it has not been used
for the purpose for which it was originally constructed for a period of six (6)
months or more. Once abandonment or discontinuance has occurred, the carrier
shall remove the facility from the subject property within ninety days. In the event
that the carrier fails to remove the facility, the town shall give notice to the carrier
and the independent escrow agent that the facility shall be removed by the escrow
agent forthwith and the escrow agent, after affording written notice seven days in
advance to the carrier, shall remove the facility.
2) Performance Guarantees
a) Insurance in a reasonable amount determined and approved by the SPGA after
consultation at the expense of the applicant with one (1) or more insurance
companies shall be in force to cover damage from the structure, damage from
transmissions and other site liabilities. Annual proof of said insurance must be filed
with the SPGA.
b) Funds, sufficient in the opinion of the SPGA to cover annual maintenance of the
facility, shall be placed into escrow and shall be held by the independent escrow
agent who shall be authorized to expend the funds for the maintenance of the
AT&T Wireless Services—5 Boston Hill Road 2
facility on terms to be agreed upon by the carrier and the SPGA as a cptidition of
approval of the special permit.
c) Annual certification demonstrating continuing compliance with the standards of the
Federal Communications Commission, Federal Aviation Administration and the
American National Standards Institute shall be filed with the SPGA by the Special
Permit holder.
3) Term of Special Permit. _
a) A Special Permit issued for any wireless service facility shall be valid for three (3)
years. The special permit may be renewed under the same criteria as the original
special permit, provided that the application for renewal of the special permit is
made prior to the expiration date of the original or any renewed special permit.
Additional measures governing the administration of the special permit are found
in Section 10.3 of the Zoning Bylaw.
b) After the facility is in operation, the applicant shall submit to the SPGA, within 90
days of beginning operations and at annual intervals from the date of issuance of
the Special Permit, preexistent and current RFR measurements. Such
measurements shall be signed and certified by an RF engineer, stating that RER
measurements are accurate and are in compliance or why the measurements fail to
comply with all applicable FCC Guidelines as specified in Section 8.9(4)(c)(1)
RFR Filing Requirements of this Bylaw. The measurements shall be submitted for
both the applicant and all co-locators.
c) After the wireless service facility is in operation the applicant shall submit to the
SPGA; within 90 days of the issuance of the Special Permit, and at annual intervals
from the date of issuance of the Special Permit, preexistent and current
measurements of acoustic noise from the wireless service facility Such
measurements shall be certified and signed by an acoustical engineer, stating that
noise measurements are accurate and meet the Noise Standards sub-section
6.13.14.5 of this Bylaw. The applicant shall forward to a separate consulting
engineer, selected by the Town, the above materials for review. The applicant
shall pay for such review.
d) The applicant and co-applicant or their successor in interest shall maintain the
wireless service facility in good condition. Such maintenance shall include, but
shall not be limited to, painting, structural integrity of the mount and security
barrier and maintenance of the buffer and landscaping.
4. Prior to the endorsement of the plans by the Planning Board, the applicant
must comply with the following conditions:
a) The applicant shall provide a map indicating the intended locations for testing
as required above.
AT&T Wireless Services—5 Boston Hill Road 3
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b) A bond in the amount of$5,000 shall be posted for the purpose o f Ensuring that
a final as-built plan showing the location of all on-site structures. The bond is
also in place to insure that the site is constructed in accordance with the
approved plan. This bond shall be in the form of a check made out to the
Town of North Andover. This check will then be deposited into an interest
bearing escrow account. '
5. Prior to the start of construction:
a) A construction schedule shall be submitted to the Planning Staff for the
purpose of tracking the construction and informing the public of
anticipated activities on the site.
c) The applicant shall determine the preexisting conditions of the noise levels
emanating from the site are to determine the baseline noise conditions of the
site area. The noise survey will provide evidence of the origin of surrounding
noise and therefore a baseline condition from which the applicant determine
their increases. The noise levels shall not increase the broadband level by more
then 10 dB (a) above the ambient levels or produce a "pure tone" condition as
set forth in DAQC Policy 90-001, the guideline for 310 CMR 7.10. The
applicant may use relevant professional sound emitting data from the prior
building use to build a baseline based on prior use of the building and grounds.
References to sources for data must be included in the material.
d) The applicant shall provide the necessary escrow accounts and insurance as
required in the above sections.
3. -Prior to FORM U verification (Building Permit Issuance):
a) The final site plan mylars must be endorsed and three (3) copies of the
signed plans must be delivered to the Planning Department.
b) A certified copy of the recorded decision must be submitted to the Planning
Department.
4. Prior to verification of the Certificate of Use and Occupancy:
a) The applicant must submit a letter from the architect or engineer of the project
stating that the construction and operations substantially-comply with the plans
referenced at the end of this decision as endorsed by the Planning Board.
b) All lighting shall have underground wiring and shall.be so arranged that all
direct rays from such lighting falls entirely within tho,'site and shall be
shielded or recessed so as not to shine upon abutting properties or streets.
The Planning Office must approve any changes to the approved lighting
plan as submitted by the applicant.
AT&T Wireless Services—5 Boston Hill Road 4
� III
5. Prior to the Final release of security: A final as-built plan showing final
construction and location of the wireless hardware shall be submitted to and
reviewed by the Planning Staff.
6. Any stockpiling of materials (dirt, wood, construction material, etc.) must be
shown on a plan and reviewed and approved by the Planning Staff. Any approved
piles must remain covered at all times to minimize any dust problems that may
occur-with adjacent properties. Any stock piles to remain for longer than one
week must be fenced off and covered.
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7. In an effort to reduce noise levels, the applicant shall keep in optimum working
order, through regular maintenance, any and all equipment that shall emanate y
sounds from the structures or site.
S. No equipment or other equipment that will emanate noise-exceeding levels cited
herein shall be placed on the exterior of the structure. Such equipment shall be
enclosed as shown on the plans.
9. All site lighting shall provide security for the site and structures however it must
not create any glare or project any light onto adjacent residential properties.
12. The contractor shall contact Dia Safe at least 72 hours prior to commencing any
excavation.
13. The provisions of this conditional approval shall apply to and be binding upon the
applicant, its employees and all successors and assigns in interest or control.
14. Any action by a Town Board, Commission, or Department that requires changes in
the plan or design of the building as presented to the Planning Board, may be
subject to modification by the Planning Board.
15. Any revisions shall be submitted to the Town Planner for review. If these revisions
are deemed substantial, the applicant must submit revised plans to the Planning
Board for approval.
16. This Special Permit approval shall be deemed to have lapsed after two years from
the date permit granted unless substantial use or construction has commenced.
Substantial use or construction will be determined by a majority vote of the
Planning Board.
17. No further structures shall be constructed on the ground frani the base of the
tower within an area equal to twice the height of the tower on which the devices
are to be installed.
AT&T Wireless Services—5 Boston Hill Road 5
t
18. The following information shall be deemed-part of the decision: V.it
Plan titled: AT & T Wireless Services
Boston Hill
North Andover, MA 01845
E 424.2
Prepared for: AT & T Wireless Services _
400 Blue Hill Road, Suite 100
Westwood, MA 02090-2160
Prepared by: Greenman-Pedersen, Inc.
Consulting Engineers
33 Boston Post Road
Marlborough, MA 01752
Dated: February 12, 1999
Sheets: 1 through 19
b) Report:
Application to Planning Board To,,vn of North Andover
by AT&T Wireless Services February 16, 1999
Prepared for: AT&T Wireless PCS
400 Blue Hill Drive Suite 100 Westwood MA 02090-2161
Co-Applicant Benjamin Farnum LLC
397 Farnum Street North Andover
Prepared by: Thomas G. Schnorr
Attorney for AT&T Wireless Services
Palmer & Dodge
One Beacon Street
Boston Mass. 02108
cc. Director of Public Works
Building Inspector
Health Administrator
Assessors
Conservation Administrator
Planning Board
Police Chief
Fire Chief
Applicant
Engineer
File
AT&T Wireless Services—5 Boston Hill Road 6
B
Date Printed :
DOCKET: Case # 256427
Commonwealth of Massachusetts Complaint Filed : 05/11/99
Land Court
� Complaint, Appeal from Zoning Track : X
Board
Chap. 40A Sec. 17
Land in North Andover on
Boston Hill Development, LLC. Farnum, Benjamin
AT&T Wireless PCs, Inc. , and
Rowen, Richard S.
Lescarbeau, Alison
Simons, John
� Nardella, Richard and
Mahoney, Joseph V. , as they are
Members of the Town of North
Andover Planning Board and not and
Individually
PLAINTIFFS' ATTORNEYS ATTORNEYS' APPEARANCES
05/11/99 Brian C. Levey, Esq, 1 Thomas J U b lDEFENDANTSr ATTORNEYSzs
_ PA Bowditch 8 Dewey, LLP Urbelis, ^ re
Fil-s05/21/0-3
161 Worcester Road Bailin, LLP '-el & ��
Framingham, MA 01778 155 Federal Street
(508) 879-5700 Boston, NA 02110
2 (617) 338-2200
Appears for D
Planning Board for Town
of North Andover
�
�
3 Francis A. DiLuna 06/07/99
Roche, Carens & DA
DeGiacomo, P. C.
_ 600 Unicorn Park Drive _ '
� Woburn, MA 01801-3343
4 (781 ) 933-5505
Appears for D
Benjamin Farnum
_
DATE
I XAC Complaint, Amseal from Zoning Board, 05/11/99
Chap. 40A Sec. 17, Filed
2 ADS Affidavit of Service, filed 06/01/99
� 3 Defendant Benjamin Farnum' s Answer to Plaintiff' s 06/07/99
Complaint, filed
4 Certificate of Service filed
, 06/07/99
5 Notice of ADR Conference (to be heard Wednesday, 06/15/906/15/9''.3� July 28, 1999, at 2:00 P. M. ) , filed
,
C
o
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. LAND COURT
MISC. DOCKET
N0. as c,a 4 @-:j-
BOSTON HILL DEVELOPMENT, LLC, )
Plaintiff, )
)
V. ) COMPLAINT
i
BENJAMIN FARNUM,AT&T WIRELESS )
PCS, INC., and RICHARD S. ROWEN, )
ALISON LESCARBEAU, JOHN SIMONS, )
RICHARD NARDELLA and JOSEPH V. )
MAHONEY, as they are Members of the )
TOWN OF NORTH ANDOVER PLANNING )
BOARD and not Individually, )
Defendants.
Introduction
1. This appeal arises under the Zoning Act, General Laws chapter 40A, § 17,
and challenges a board of appeals' decision to grant a special permit to install multiple
antennas, equipment and cable's on a telecommunications tower and related facility
abutting the plaintiff s planned multi-family residential development and recreational
land.
The Parties
2. The plaintiff, Boston Hill Development, LLC, is a Massachusetts limited
liability corporation with a usual place of business at 11 Old Boston Road,Tewksbury,
Middlesex County, Massachusetts ("Boston Hill").
I:\clients\lit\b3187\0101\1-'AltNCt)M.DOCA}
3. The defendant, Benjamin G. Farnum, is an individual who resides at 379
Farnum Street, North Andover, Essex County, Massachusetts ("Farnum").
4.. The defendant, AT&T Wireless PCS, Inc., is a Delaware corporation with
a usual place of business at 7277 1641h Avenue,N.E., Redmond, Washington("AT&T
Wireless").
5. The defendant, Richard S. Rowen, is an individual who resides at 102
Bear Hill Road,North Andover, Essex County, Massachusetts and is sued in his capacity
as chairman of the Town of North Andover Planning Board(the "Planning Board") and
not individually.
6. The defendant, Alison Lescarbeau, is an individual residing at Laconia
Circle,North Andover, Essex County, Massachusetts and is sued in her capacity as a
member of the Planning Board and not individually.
7. The defendant John Simons is an individual who resides at 25 Ironwood
Road, North Andover, Essex County, Massachusetts and is sued in his capacity as a
member of the Planning Board and not individually.
8. The defendant, Richard Nardella, is an individual who resides at Hay
Meadow Road,North Andover, Essex County, Massachusetts and is sued in his capacity
as a member of the Planning Board and not individually.
9. The defendant,Joseph V. Mahoney, is an individual who resides at 24
Mill Pond, North Andover, Essex County, Massachusetts and is sued in his capacity as a
member of the Planning Board and not individually.
(1:\cl ients\I 4\0187\010ITARNCONI.DOC;1)
-2 -
Existing Conditons
10. Boston Hill owns a 33.35-acre parcel of land with frontage on the
southerly side of Salem Turnpike also known as Route 114 in North Andover (the
"Boston Hill Parcel"). For the past year, Boston Hill has been preparing and seeking
permits necessary to develop a 79-unit, multi-family housing project on the Boston Hill
Parcel.
11. The Boston Hill Parcel is zoned Village Residential which permits multi-
family residential structures. Under the Town of North Andover Zoning By-law(the
"Bylaw"), Boston Hill had to provide deeded open space for recreational;open space or
conservation purposes as part of the proposed development. By decision dated March 10,
1999, Boston Hill obtained a variance from the North Andover Zoning Board of Appeals
which requires that Boston Hill set aside approximately for its developmentq pp y 17 acres of
its property as open space in perpetuity for conservation, agricultural or recreational
uses by deed restriction, dedication to the Town or other similar mechanism."
12. Farnum owns a 9.49 acre parcel of land adjacent to the Boston Hill Parcel
( "Locus").the " " . The Locus is in the same zoningdistrict and abuts the Boston Hill Parcel.
13. On information and belief, Famum or his predecessors-in-interest
obtained a variance in the late 1950's to allow for the construction of a structure in excess
of the height limitation then in effect under the Bylaw for a telecommunications
purposes.
14. On information and belief, as a result of said approval, the Locus contains
a 85-foot tall concrete tower with a 62-foot tall triangular, lattice-style antenna located on
top of it.
11:\cl ients\lit\b3187\010 RFARNCO.M.DOC;I)
15. On information and belief, the existing telecommunications structure is
setback less than two times the tower's height with respect to the closest southerly and
northerly property lines.
16. The Locus which houses the existing telecommunications structure abuts
Boston Hill's residential development and the land to be deeded in perpetuity for
conservation, agricultural or recreational purposes on the Boston Hill Parcel. The
existing telecommunications structure is visible from this nearby land as would be the -
proposed alterations by AT&T Wireless.
Applicable Regulations and Laws
17. Section 8.9 of the Bylaw provides that the Planning Board shall be the
special permit granting authority for the issuance of a special permit to allow the
placement, construction and modification of wireless service facilities within North
Andover.
18. Section 8.9 (3)(c)(v) governs setback requirements for wireless service
facilities which includes antennas, equipment and cables. In pertinent part, this section
provides that all wireless service facilities shall comply with the building setback
provisions of the zoning district in which the facility is located and that the minimum
distance from the base of any ground-mounted wireless service facility to any property
line shall be twice the height of the facility.
19. Section 8.9 (4)(d)(ii) states that wireless service facilities shall not be
located within open areas that are visible from public roads, recreational areas or
residential developments.
(J:^,c1ients\1it\63187\0101TARNCONLDOC;I)
-4 -
20. Section 8.9 of the Bylaw sets forth various criteria with which an applicant
must comply in order to obtain a special permit from the Planning Board.
21. The grant of a special permit under § 8.9 also requires compliance with the
criteria set forth for thea approval for a special permit under 10.3 of the Bylaw.
PP p P § Y
22. Section 8.9(1)(a) also provides that, "[n]o wireless service facility shall be
placed,constructed or modified within the Town without first obtaining site plan
approval from the Special Permit Granting Authority." In turn, § 8.3 of the Bylaw
provides various criteria for the approval of a site plan.
23. Structures existing by virtue of the grant of a variance require a further
variance to be modified, extended or otherwise altered. General Laws chapter 40A, § 10,
sets forth the criteria for the grant of a variance.
24. Non-residential, nonconforming structures which are altered or extended
must either comply with the Bylaw or obtain a variance and secure a finding under G.L.c.
40A, § 6, that the proposed alteration or extension is not substantially more detrimental to
the neighborhood than the existing nonconformity.
The AT&T Wireless Application and Decision
25. On or about February 16, 1999,AT&T Wireless and Farnum filed an
application for special permit with the Planning Board to construct and maintain
antennas, equipment and cables to the existing telecommunications structure on the
Locus.
26. AT&T Wireless proposes to install nine (9) panel-style antennas in three
(3) arrays of three (3) antennas each. Each panel antenna is 5 by 6 feet or thirty (30)
{1:\c1icnts\Iit b3187\0101\FARNC0M.D0C;I}
-5 -
square feet. Thus, AT&T Wireless proposes to add square feet of antenna panels at a
height of over 120 feet. X
27. The public hearing commenced on March 16, 1999 and was continued to
April 6 and April 20, 1999. At the close of the public hearing on April 20, 1999, the
Planning Board voted to approve the special permit.
28. On April 21, 1999, the Planning Board filed its decision with the North
Andover Town Clerk(the "Decision"). A true copy of the Decision is attached as Exhibit
A.
29. Boston Hill is a person aggrieved by the Decision.
30. The Decision is in excess of the Planning Board's authority and is
arbitrary and capricious for several reasons which include, but are not limited to, the
following:
(A) The Planning Board failed to make and the Decision fails to recite
,i-
sufficient findings in support of the purported grant of a special
permit under § 8.9 of the Bylaw;
(B) The Planning Board failed to make and the Decision fails to recite
sufficient findings in support of the purported grant of a special
permit under § 10.3 of the Bylaw;
(C) The proposed extension of the existing tower violates the setback
requirement in § 8.9(3)(c)(v). Nor does the Decision provide for
the reduction of the required setback;
(D) The proposed extension to the existing tower, which includes 270'
square feet of antenna at a height of over 120 feet, is visible from
(1:\clicntsNIit\b3137\0101TARNCO`1.DOC;1)
-6 -
I
the portion of the Boston Hill Parcel to be deeded conservation,
agricultural or recreational land and Boston Hill's residential
development generally in violation of § 8.9(4)(d)(ii). Nor did the
Planning Board grant a variance from this requirement;
(E) AT&T Wireless failed to obtain all necessary zoning relief for its
proposed project where it did not seek and receive site plan
approval under § 8.3 of the Bylaw;
(F) AT&T Wireless failed to obtain all necessary zoning relief where,
to extend the structure which existed by virtue of the grant of a
variance, it did not seek and obtain a modification of said variance
in accordance with G.L.c. 40A, § 10;
(G) Alternatively, were the existing structure considered pre-existing,
nonconforming, AT&T Wireless failed to obtain all necessary
zoning relief where it did not seek or obtain a finding under
G.L.c. 40A, § 6, and a variance to extend or alter the existing
nonconformity.
(JAclicntsMit\b3187\0101\PARNCONi.DOC;1
WHEREFORE Boston Hill requests that the Court:
1. Annul the Decision;
2. Award the plaintiff its attorneys' fees and costs;
3. Grant such other and further relief deemed necessary by the Court. :.
BOSTON HILL
DEVELOPMENT, LLC _
By it orney,
8r>an C. Levey, Esq.
BBO# 542129
Bowditch & Dewey, LLP
161 Worcester Road
Framingham, MA 01778
(508) 879-5700
(1:\c1ient_s\Iit\0187\0101\I-'ARNCOM.DOC;1}
-8 -
V
EXHIBIT A
I
0002
Town of North) Andover
OFFICE OF
COMMUNITY DEVELOPMENT AND SERVICESYM
3a School Strait
North Andover, NWsachuscus 01845 �' . ..
_"1.SCOTT -�ckust
DirectorNO 1 iCE OF DECISION N p ,en -
Any appeal shall be filled
within (20) days after the -
date of filling this Notice
in the Office of the Town '
Clerk.
Date April 21, 1999
Date of Hearing MA.rCh 16, 1999, April 6, 1999
April 20, 1999 .
Petition of AT e T wireless
Premises affected5 Bocton.13111 Road -
Referring to the above petition for a special permit from the
requirements of the North -Andover zoning Bylaw section 8.9
so as to allow to install and operate, on a parcel of privately owned land at 5 Boston
1 Road wireless communiczticns Facilities consisting of an antenna array& certain radio elect-r(
s telephone equipment
After a public hearing given on the above date, the Planning Board
voted to APPROVE the Special Permit
based upon the following conditions:
Signed`
CC: Director of Public Works Richard S.Rowen Chairman
Building Inspector
Natural Resource/Land Use Planner Alison Lescarbeau, V. Chairman
Health Sanitarian
Assessors John Simons. Clerk
Police Chief
Fire Chief Richard 1.itrdella
Applicant
Engineer Joseph V M2honey
Towns Outside Consultant
Planning Board
File
Interested Parties
CO:`�S1:uY,\TION-(779) 6Nx g'_3U FIE.\LTi(-(77f1) 6xa-�S�U P1..\``1InC-19781 6A„-�•`�`—
131i1L�(VCt)FF l)
ICE • 78)6A8-'154= 'ZOV(�C IIQ�Rn t)F:\1'YL1LS• fY8)4t11f-7V1 •116>(.�1� �1'ItL'11'
AT & T Wireless Services—5 Boston Hill Road ,�•
Special Permit
The Planning Board herein approves the Special Permit to install and,operate. on a parcel
of privately owned land at 5 Boston Hill Road wireless communications facilities
consisting of an antenna.array (to be mounted to existing steel lattice tower) and certain
radio electronic and telephone equipment (to be installed on second floor of e.dsting
building that serves as the base of the lattice tower) in the Village Residential Zonin-
District. This Special Permit was requested by AT &T Wireless PCS. 400 Blue Hill
Drive, Suite 100, Westwood. MA 02090-216 1. This application and additional
documentation as cited herein was filed with the Planning Board on February 16, 1999
with subsequent submittals on file.
The Planning Board makes the Mowing findings as required by the North Andover
Zoning Bylaw Section 8.9:
FINI)INGS OF FACT:
1. The specific site is an appropriate location for the project as it is beim; collocated on
an existing wireless location-
2. The.use as developed will not adversely affect the neighborhood as indicated by the:
analysis conducted by AT&T and Donald Ilaes.
3. The carrier has dcmomtraced that the facility is aecessaryr in order to provide adequate
service to the public.
4. The plan meets the requirements of the Wireless Servicc Facilities by-law section 3.9.
5. Adequate and appropriate facilities will be provided for the proper operation of the
proposed use.
Finally the Planning Board finds that this project generally complies with the Town of
North Andover%oninb Bylaw requirements as listed in Scction 8.9 but requires conditions
in order to be fully in compliance. The Planning Board hereby grants an approval to the
applicant provided the following conditions are met:
SPECIAL CONDITIONS:
1: Discontinuance Abandonment
a) At such time that a licensed carrier plans to abandon or discontinue operation of a
wireless service facility. such carrier will notify the Torun by certified US mail of
the proposed date of abandonment or discontinuation of operations. Such notice
shall be given no less than 30 days prior to abandonment or discontinuation of
�\f�l'W'ire:c»S�rYi«5— % Hu�cun I till livad 1
operations. In the event that a licensed carrier fails to eve such notice,�the wircle
service facility shall be considered abandoned upon discontinuation of operations.
b) Upon abandonment or discontinuation of use; the carrier shall physically remove
the wireless service facility- within 90 days from the date of abandonment or
discontinuation of use. "Physically remove" shall include, but not be limited to;
i) Removal of antennas, mount, equipment shelters and security barriers from the
subject property.
ii) Proper disposal of the waste materials from the site in accordance with local
and state solid waste disposal regulations.
iii) Restoring the location of the wireless service facility to its natural condition.
except that any landscaping and grad ng shall remain the after-condition.
e) As a condition of any special permit for the placement, construction 'or
modification of wireless service facility; a carrier shall place into escrow a sum of
money to cover the costs of removing the facility from the subject property. Said
amount shall he certified by an engineer, architect ur other qualified professional
registered to practice in the Communwcalth of Nfassachuscus. Said funds shall be
held by an independent escrow agent to be appointed by the carrier and the SPGR_
The carrier shall authorize and, as necessary, shall obtain the authorization of the
ov ner of the property to allow the escrow agent to enter upon the subject property
to remove the facility when the facility has been abandoned or discontinued. In the
event the posted amount does not cover the cost of demolition and/or removal the
Town may place a lien upon the property covering the ditl'erence in cost.
LI) A facility shall be deemed to be abandoned or discontinued if it has not been used
e
-purpose for which it was ori y constructed for period of six (6)
or the
t PSP �ll-
months or more. Once abandonment or discontinuance has occurred- the carrier
shall remove the facility from the subject property within ninety days. In the event
that the carrier fails to remove the facility, the tower shall give notice to
the carrier
and the independent escrow agent that the facility shall be removed by the escrow
agent forthwith and the escrow agent, after affording written notice seven days in
advance to the carrier, shall remove the fsciliry.
2) Per'for'mance Guarantees .
a) Insurance in a reasonable amount determined and approved by the SPGR after
consultation at the expense of the applicant with one (1) or more insurance
companies shall be in force to cover damage from the structure, damage from
transmissions and other site liabilities. Annual proof of said insurance must be filed
with the SPGA. =
b) Funds, sufficient in the opinion of the SPGA to cover annual maintenance of the
facility, shall be placed into escrow and shall be held by the independent escrow
aLyeat who shall he authorized to expend the funds for the maintenance of the
AT do T Wireless Scrvices— 5 lioston I•lill Road 2
i
facility on terms to be agreed upon by the carrier and the SPGA as a condition of
approval of the special permit.
c) Annual certification demonstrating continuin-a compliance with the standards of the
Federal Communications Commission_ Federal Aviation Administration and the
A=rican National Standards institute shall be filed with the SPCA by the Special
Permit holder.
3) Term of Special Permit.
a) A Special Permit issued for any wireless service facility shall be valid for three (3)
years. The special permit may be renewed under the same criteria as the oriCituil
special permit,provided that the application for renewal of the special permit is
made prior to the expiration date of the original or any renewed special permit.
Additional measures governing the administration of the special permit are found
in Section 10.3 of the Zoning Bylaw.
b) After the tacility is in operation, the applicant shall submit to the.SPGR. within 90
days of beginning operations and at annual intervals from the date of issuance or
the Special Permit, preexistent and current RFR measurements. Such
me-isurements shall .be signed and certibed by an RF engineer, stating that UR
measurements are :accurate and are in compliance or why the measurementsfail
comply with all applicable FCC Guidelines as specLfied in Section 8.9(4)(c)(1)
RFR Filing; Requirements of this Bylaw. The measurements shall be submitted tier
both the applicant and all co-locators.
c) Atter the wireless service facility is in operation the applicant shall submit to the
Sl'Gik. within 90 days of the issuance of the Spccial Permit, and at annual intervals
Special Permit, preexistent and current
from the dale of issuance of the p , P Such
measurements of acoustic noise from the wireless service facility
measurements shall be certified and sighed by an acoustical engineer, stating that
noise measurements are accurate and meet the Noise Standards sub-section
6.13.14.5 of this Bylaw. The applicant shall forward to a• separate consulting
engineer, selected by the Town, the above materials for review. The applicant
shall pay for such review.
d) The applicant and co-applicant or their successor in interest shall maintain the
wireless senvice facility in good condition. Such maintenance shall include, but
shall not be guru .
ted topainting, structural integrity of the mount and security
. p >?
barrier and maintenance of the buffer and landscaping.
4. Prior to the endorsement of the plans by the Planning Hoard, the npplicsnt
must comply with the following conditions:
a) The applicant shall provide a map indicating the intended locations for tearing.
as required above. .
a�'y'r%V ircjc-5 Serino 9—5 liostan t1i11 Ruud 3
b) A bond inthe amount of$5,000 shall be posted for the purpose o,&ln' surin b that
a final as-built plan showing the location of all un-site structures. The bond is
also in place to insure that the site is constructed in accordance with the
approved plan. This bond shall be in the form of a check made out to the
Town ofNorth llndover. This check will then be deposited into an interest
bearing escrow account.
5. Prior to the start of canstruction:
a) A construction schedule shall be submitted to the Planning_ Staff far the
r and informing the public of
coon
purpose of trackinL_
the construction _
anticipated activities on the site.
c) The appCu:ant shall determine the preexisting conditions of the noise levels
emanating fi-om the site are to determine the baseline noise conditions of the
site area. The noise survey will provide evidence of the origin of surrounding
noise and therefore a baseline condition from which the applicant determine
their increases. The noise levels shall not increase the broadband level by more
then 10 dB (a) above the ambient levels or produce a pure tone"condition as
set forth in UAQC Policy 90-001, the guideline for 310 CIMR 7.10. The
applicant may use relevant professional sound emitting data from the prior
building use to build a baseline based on prior use of the budding and grrounds.
References to sources for data must be included in the material.
d) The appUcant sball provide the necessary escrow accounts and insurance as
required in the above sections.
3. Prior to FORM C verification (Building Permit issuance):
a) The final site plan mylars must be endorsed and three (3) copies of the
signed plans trust be delivered to the Planning Department.
b) A certified copy of the recorded dcci9ion must be submitted to the Planrdng
Department.
4. Prior to verification of the Certificate of Use and Occupancy:
a) The applicant must submit a letter from the architect or cngineer of the project
stating that the construction and operations substantially comply with the plans
referenced at the cnd of this decision as endorsed by the Planning Roard.
b} All lighting shall have underground wiring and shall.be so arranged that all
direct rays from such lighting falls entire*-within d10r�iitc and shall be
shielded or recessed so as not to shuie upon abutting properties or streets.
The PlamLt io Office must approve any changes to the approved lighting
plan as submitted by the applicant.
I'8 1' wireess scrvicz- 5 13ustun I fill Ruud 4
t /
i
N
5. Prior to the final release of security: A final as-built plan showing final
construction and location of the wireless hardware shall be submitted to and
reviewed by the Planning Staff.
b. Any stockpiling of materials (dirt, wood, construction material, etc.) must be
shower on a plan and reviewed and approved by the (Tannin` Stag Any approved
piles must retrain covered at all times to minimize any dust problems that may
occur with adjacent properties. Any stock piles to remain for longer than one
week must be fenced off and covered.
7. In an effort to reduce noise levels, the applicant shall keep in optimum working
I
order, through rrgul:u maintenance, any and all equipment dist shall emanate
sounds from the structures or site.
$. No equipment or other equipment that will emanate noise-exceeding levels cited
herein shall be placed on the exterior of the structure. Such equipment shall be
enclosed as shown on the plans.
9. All site lighting shall provide security for-the site and structures however it must
i ',cent residential
co
not create any blare or project any light onto adproperties.
p
1?. The contractor shall contact Dig Safe at least 72 hours prior to comtncncine any
excavation.
conditional approval shall apply to and be binding upon the
13. The provisions of this pp PP .
applicant. its employees and all successors and assigns in interest or control.
14. Anv action by a Town Board. Commission, or Department that requires changes in
the plan or design of the building as presented to the Planning Board, may be
subject to modification by the Planning Board.
15. Any revisions shall be submitted to the Town Planner for review. If these revisions
are deemed substantial, the applicant must submit revised plans to the Planting
Board for approval.
16. This Special Pcm-it approval shall be deemed to have lapsed after two years from `i IaI,CI`(
the date permit granted unless substantial use or construction has commenced.
Substantial use or construction will be determined by a majority vote of the
Planning Board.
17. No further suucn=-shall be constructed on the around frclin the base of the
tow•Cr wither
an arca equal to twice the height of the cower on which the devices
are to be installed.
AT 1 N ircicss Sc vice- 11u3cu� F1;11 Roud 5
Q f
' .- ..- ......-. ... .r.......- ...... .�..�.- .... ..
18. The following information shall be deemed part of'the decision: r,Y
Plan titled: AT & T Wireless Services
Boston Hill
North Andover. MA 01845
E 434.2
Prepared for: AT &T Wireless Services
400 Blue Hill Road, Suite 100
Westwood, MA 02090-2160
Prepared by: Greenman-Pedersen_ Inc.
Consulting Engineers
33 Boston Post Road
Marlborough, MA 01752
Dated: February 12. 1999
Sheets: 1 through 19
b) Report:
Application to Planing Board Town of North Andover
by AT&T Wireless Services February 16. 1999
_ Prepared for: AT&T Wireless PCS
400 Blue Hill Drive Suite l00 Westwood MA 03090-2161
Co-Applicant Benjamin Farnum LLC
397 Farnum Street -North Andover
Prepared by: Thomas G. Schnorr
Attorriey for AT&T Wireless Services
Palmer & Dodge
One Beacon Strert
Boston Mass. 02108
cc. Director of Public Works
Building Inspector
Health Administrator
Assessors
Conservation Administrator
Planning Board
Police Chief
Fire Chief
Applicant
Eneineer
File
A 'r wirciess Serlic--ni—5 uusum Hill Ruud 6
i
i
D
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. LAND COURT
MISC. DOCKET
NO. 256427
BOSTON HILL DEVELOPMENT, LLC,
PLAINTIFF,
V.
BENJAMIN FARNUM, AT&T WIRELESS
PCS, INC., AND RICHARD S. ROWEN,
ALISON LESCARBEAU, JOHN SIMONS,
RICHARD NARDELLA AND JOSEPH V.
MAHONEY, AS THEY ARE MEMBERS OF
THE TOWN OF NORTH OF ANDOVER
PLANNING BOARD AND NOT
INDIVIDUALLY,
DEFENDANTS.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND REQUEST FOR A HEARING
Pursuant to Mass. R. Civ. P. 56, defendant AT&T Wireless PCS, Inc. ("AT&T
Wireless") moves for summary judgment, upholding the decision of the Planning Board for the
Town of North Andover, Massachusetts (the"Board")to grant AT&T Wireless a special permit
to construct and operate a wireless telecommunications facility in North Andover. AT&T
Wireless is entitled to summary judgment because the undisputed facts of this case demonstrate:
(1)that the Board was neither arbitrary or capricious in granting AT&T Wireless a special
permit; (2) that the Board properly fulfilled its obligations under the Zoning Bylaw of the Town
of North Andover("Bylaw"); and (3)that AT&T Wireless's proposed wireless facilities comply
in all respects with the requirements of the Bylaw.
t �
The grounds for this motion are set forth in more detail in the accompanying
memorandum of law and attached exhibits.
REQUEST FOR A HEARING.
Defendant requests a hearing on this motion.
Respectfully submitted,
Emily R. Donovan/s/
Kenneth W. Salinger (BBO #556967)
Emily R. Donovan(BBO #632867)
Jeff Z. Mann (BBO #644934)
PALMER& DODGE LLP
One Beacon Street
Boston, MA 02108
(617) 573-0100
May 22, 2000
CERTIFICATE OF SERVICE
I hereby certify that I caused a true copy of the above document to be served upon
the attorney of record for each other party by mail on May 22,2000.
Emil, R. Donovan/s/
2
k
E
i
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. LAND COURT
MISC. DOCKET
NO. 256427
BOSTON HILL DEVELOPMENT, LLC,
Plaintiff,
V. '
BENJAMIN FARNUM, AT&T WIRELESS
PCS, INC., AND RICHARD S. ROWEN,
ALISON LESCARBEAU, JOHN SIMONS, ;
RICHARD NARDELLA AND JOSEPH V.
MAHONEY, AS THEY ARE MEMBERS OF
THE TOWN OF NORTH OF ANDOVER
PLANNING BOARD AND NOT
INDIVIDUALLY,
Defendants.
MEMORANDUM IN SUPPORT OF DEFENDANT AT&T WIRELESS'S
MOTION FOR SUMMARY JUDGMENT
Pursuant to Mass. R. Civ. P. 56, defendant AT&T Wireless PCS, Inc. ("AT&T
Wireless") submits this memorandum in support of its motion for summary judgment.
AT&T Wireless is entitled to summary judgment on plaintiffs claims that the decision
by the Town of North Andover Planning Board("the Board") to grant a special permit for AT&T
Wireless's facilities (the "Decision") was arbitrary, capricious, or based on an error of law. The
undisputed material facts demonstrate that in rendering the Decision, the Board fully complied
with both state law and the Zoning Bylaw of the Town of North Andover(the"Bylaw")
(attached hereto as Exhibit 1 ("Ex. 1"))'. When the Board issued its Decision, it incorporated a
detailed application submitted by AT&T Wireless and imposed a series of specific conditions
that addressed compliance issues with the mandates of the Bylaw. See Notice of Decision on
Petition of AT&T Wireless (hereinafter"Decision"), attached as Exhibit A to Exhibit 2
(hereinafter"Ex. 2A"). The plaintiff's remaining claims concerning setback requirements, site
plan review, modifications of a variance, and applicability of G.L. c. 40A, § 6 are based on a
misreading of the plain statutory and bylaw requirements.
Factual Background.
AT&T Wireless's Application for a Special Permit.
On February 16, 1999, AT&T Wireless submitted an application (the "Application") to
the Board seeking a special permit(the"Permit") to install and operate a wireless
telecommunications facility ("Wireless Facilities") at Five Boston Hill Road, North Andover,
Massachusetts (the "Site"). See Application to Planning Board Town of North Andover,
Massachusetts by AT&T Wireless Services, Tab 1 (hereinafter, "Application Tab I"), attached
as Exhibit 3 (hereinafter"Ex. 3"). AT&T Wireless requested relief and approval from the Board
under the Special Permit ("Section 10.3") and Wireless Service Facilities ("Section 8.9")
provisions of the Bylaw. See Application Tab 1, Ex. 3.
The Subject Site.
The Site, almost ten acres in area,has been used for various communications purposes
since the 1950s. See Application Tab 2 at p. 4,Ex. 3. A large, visually obtrusive tower has been
1 The certified Bylaw included in the appendix to this memorandum shows that the Bylaw has been amended since
the Board's Decision. However,none of the amendments reflected in the attached Bylaw affect the pertinent
provisions of the Bylaw as they apply to the Application and Decision,as noted in the Table of Revisions. Bylaw,
p. 14,Ex. 1.
2
on the Site for these purposes for a similar period of time. Id. The tower is made up of an
approximately 85 foot tall concrete base (the "Tower Building") on which sits an approximately
62 foot tall triangular lattice-style antenna tower(the "Lattice Tower") (the Tower Building and
Lattice Tower, collectively, the"Tower"). Id. The Tower Building originally supported a radar
antenna, but now supports the Lattice Tower and a variety of panel, whip, cone, dish, and other
style antennas. Id.
The Site has historically been endorsed as being ideal for communications facilities. The
Site and Tower in question have been the subject of at least six prior decisions of the Board.2
See Application Tab 2 at p. 4, Ex. 3. The Tower Building was originally constructed by the
Massachusetts Institute of Technology ("MIT") for radar research and telecommunication
purposes. See Notice of Decision on Petition of Massachusetts Institute of Technology
(hereinafter, MIT Decision"), attached as Exhibit 4 (hereinafter"Ex. 4"). The Board granted
MIT a height variance in 1957 to permit the construction of the Tower Building and the radar
antenna. Id.
Since then, the uses and height of the Tower have continued to expand. In July, 1982, the
Board issued a special permit allowing the addition of antennas and transmitting dishes to the
existing Tower Building provided that the Tower should not exceed a total height of 140 feet.
See Notice of Decision on Petition of Benjamin Farnum (hereinafter"Farnum Decision"),
attached as Exhibit 5 (hereinafter"Ex. 5"). Then, in February, 1984,the Board allowed a special
permit to WNEV-TV to extend the height of the Tower Building and Lattice Antenna by another
2 In May, 1999,North Andover amended its Bylaw. The amendment transferred the special permit granting
authority from the Zoning Board of Appeals to the Planning Board. When used to discuss historic actions of the
boards,the term"Board"refers to the special permit granting authority at the time of the subject decision.
3
30 feet. See Notice of Decision on Petition of WNEV-TV (hereinafter"WNEV Decision"),
attached as Exhibit 6 (hereinafter"Ex. 6").
More recently, the Site and Tower have been recognized as ideal locations for wireless
telecommunications facilities. In December 1984, the Board allowed a special permit to
NYNEX Mobile Communications, allowing NYNEX to construct an approximately 20 foot by
20 foot interior room within the existing Tower Building to house NYNEX's equipment, and to
attach and use five antennas on the top of the Tower Building. See Notice of Decision on
Petition of Nynex Mobile Communications Company and Benjamin Farnum (hereinafter
"NYNEX Decision"), attached as Exhibit 7 (hereinafter"Ex. 7").
In approving the NYNEX special permit, the Board specifically found that"the site is in
an appropriate location for the use [and] [t]he height of Boston Hill is appropriate for installation
of cellular mobile equipment." See NYNEX Decision at page 2, Ex. 7.
In 1997, the Board allowed the addition of two more wireless facilities. In February,
1997, the Board granted a special permit to Sprint Spectrum for installation of eight antennas on
the exterior of the Tower Building and radio telecommunications equipment inside the Tower
Building. See Notice of Decision on Petition of Sprint Spectrum (hereinafter"Sprint Decision"),
attached as Exhibit 8 (hereinafter"Ex. 8"). In August, 1997, the Board granted Omnipoint
Communications a special permit to install wireless communications antennas on the Tower
Building. See Notice of Decision on Petition of Omnipoint Communications (hereinafter
"Omnipoint Decision"), attached as Exhibit 9 (hereinafter"Ex. 9").
The Proposed AT&T Wireless Facilities.
In comparison to the existing 147 foot Tower and tangle of existing wireless antennas and
facilities on the Site, AT&T Wireless proposes a modest addition. The Wireless Facilities will
4
comprise: antennas mounted on the sides of the Lattice Tower; telephone equipment installed in
an existing room on the second floor of the Tower Building(not at all visible or otherwise
detectable from the outside); and coaxial cables running from the antennas to the telephone
equipment via a window entry port. See Application, Tab 2 at p. 5, Ex. 3.
The proposed antenna will be composed of nine panel-style antennas in three arrays (at
30°, 150° and 270°), each array to contain three antennas. See Application, Tab 2 at p. 5, Ex. 3.
Each antenna panel will be approximately 4 to 5 feet tall, 6 inches wide and 3'/2 inches deep. Id.
The top of the antennas will be approximately 20 feet below the top of the Lattice'Tower. Id.
The equipment will consist of radio transmitters and receivers, back-up battery power supply,
landline telephone interconnection equipment and air conditioning equipment. Id.
The Wireless Facilities will have no effect on the surrounding neighborhood. The
Wireless Facilities will.not produce any other noise, or any dirt, dust, glare, odor, fumes, smoke,
gas, sewage, refuse, vibration or danger of explosion or fire. See Application, Tab 2 at p. 5, Ex.
3. The Wireless Facilities will not increase any vehicular or residential pressures in the
community. The only traffic generated by the Wireless Facilities will be a once per month
inspection by AT&T Wireless personnel. Id. Access to the Site will continue to be through a
private driveway on Boston Street, which is blocked with a gate. Id. at p. 11.
Proceedings Before the Board.
The Board received a well developed factual record from live witnesses and public
attendees. All told, three witnesses presented live testimony on behalf of AT&T Wireless. See
Planning Board Meeting Minutes, March 16, 1999 (hereinafter"Board Minutes"), attached as
Exhibit 10 (hereinafter"Ex. 10"). These witnesses showed to the Board and the audience
pictures of the proposed Wireless Facilities, discussed that the Site had been chosen to take
5
advantage of collocation, and discussed the level of electromagnetic emissions from the Wireless
Facilities. Id. During this meeting, the Board also received comments and concerns from the
audience and the community. Id.
The Board also accepted and made part of the record a comprehensive application from
AT&T Wireless's which included, among other reports: an approval letter from the
Massachusetts Department of Health; an environmental site assessment from SAGE
Environmental, Inc.; an acoustical impact report from Alactronics; an electromagnetic
compatibility report; and a report on the structural integrity of the Tower. See Decision, Ex. 2A;
Application, Tabs 7-11, Ex. 3. The Application also included a requirement-by-requirement
analysis of how AT&T Wireless's Application meets the requirements of State Law and the
Bylaw. Application, Tab 2 at pp. 6-16, Ex. 3.
Pursuant to Sections 8.9 and 10.3, the Board voted to approve the Permit application at
the close of the public hearing on April 20, 1999, and filed its decision with the Andover Town
Clerk on April, 21, 1999. Decision, Ex. 2A. The Board made the following express findings:
• "The specific site is an appropriate location for the project as it is being collocated on an
existing wireless location."
• "The use as developed will not adversely affect the neighborhood as indicated by the analysis
conducted by AT&T and Donald Haes."
• "The carrier has demonstrated that the facility is necessary in order to provide adequate
service to the public."
• "The plan meets the requirements of the Wireless Services by-law section 8.9."
• "Adequate and appropriate facilities will be provided for the proper operation of the
proposed use."
Decision, Ex. 2A.
The Board incorporated AT&T Wireless' Application into its findings. Decision, Ex. 2A.
The Board also included in its Decision a list of eighteen Specific Requirements. Id.
6
The Complaint.
On or about May 12, 1999, after Benjamin Farnum, the owner of the Site, sued Boston
Hill challenging the grant of zoning relief necessary for the plaintiff to develop its property, the
plaintiff filed a complaint (the "Complaint") with the Land Court seeking annulment of the
Decision and an award of attorneys' fees and costs. Complaint, Ex. 2.
Argument.
Under Rule 56 of the Massachusetts Rules of Civil Procedure, summary judgment should
be granted where, as here, there are no genuine issues of material fact, and where the moving
party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c).
I. THE BOARD RECITED SUFFICIENT FINDINGS IN SUPPORT OF ITS
DECISION TO GRANT THE PERMIT TO AT&T WIRELESS.
The undisputed language of the Decision and the documents which it incorporates
constitute findings sufficient, as a matter of law, to demonstrate that the Board acted within its
authority in granting AT&T Wireless a Special Permit for the Site. See Cummings v. City
Council of Gloucester, 28 Mass. App. Ct. 345, 351 (1990) (upholding grant of summary
judgment in favor of board where decision, on its face, demonstrated that required determination
was made).
A. The Board Made Sufficient Findings in Support of its Decision to Grant
AT&T Wireless the Permit under Section 8.9 of the Bylaw.
The Board made legally sufficient findings to support its Decision that the Wireless
Facilities, as proposed, are in compliance with Section 8.9 of the Bylaw. The Board's findings
include the express finding that AT&T Wireless's Application met the requirements of
Section 8.9, extensive conditions imposed by the Board, and AT&T Wireless's Application
which the Board incorporated in its Decision and which includes a point by point exposition of
exactly how the Wireless Facilities comply with each requirement of Section 8.9.
7
i
I
The Board's findings are legally adequate because they demonstrate the basis upon which
the Board rendered its decision. The purpose of requiring findings is to ensure that zoning
regulation do not "become a matter of administrative whim." See Josephs v.Board of Appeals of
Brookline, 362 Mass. 290, 295 (1972) (quotingDamaskos v.Board of Appeal of Boston, 359
Mass 55, 62 (1971)). By making these explicit findings, imposing detailed conditions, and
incorporating an extensive point-by-point analysis of compliance with the Bylaw, the Board
demonstrated a level of thought and analysis which is inconsistent with the idea that the Decision
could be seen as either arbitrary or"a matter of administrative whim."
The Board's express findings are sufficient to demonstrate that the Decision was not
rendered without thought or analysis. First, the Board expressly announced in its Decision that it
had found that "[t]he plan meets the requirements of the Wireless Services by-law section 8.9."
In addition, though not required to do so expressly, the Board also expressed its finding that
"[t]he carrier has demonstrated that the facility is necessary in order to provide adequate service
to the public,"thereby voicing the Board's further conviction that the Wireless Facilities met the
requirements of Section 8.9.
Moreover, the detailed and specific conditions imposed by the Decision constitute
findings sufficient to further demonstrate the Board's thoughtful and reasoned approach to the
Decision. This is the case because detailed conditions, such as those imposed in the Decision,
"do double duty as findings." Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618,
621-22 (1986) (finding that conditions may"do double duty as findings"). See also Shuman v.
Board of Alderman of Newton, 361 Mass. 758, 764-65 (1972) (finding that deficiencies in
findings in board's decision may be "met by the statement of conditions"). In the Decision, five
of the six pages are dedicated to the expression of special conditions which-the Board stated are
8
necessary in order for the proposed Wireless Facilities to be"fully in compliance"with Section
8.9. Decision, Ex. 2A
The record on which the Board based its Decision, and which it expressly made part of
that Decision, also contains substantial additional information which supports the conclusion of
the Board and constitutes additional findings. The Application includes a five page, point-by-
point analysis of how the Wireless Facilities indisputably meet the requirements of Section 8.9.
Application, Tab 2 at pp. 12-16, Ex. 3. By choosing to incorporate the Application into its
Decision, the Board embraced that analysis and adopted those conclusions as its own. See
Cormier v. Carty, 381 Mass. 234, 237 (1980) (factfinder may adopt one party's findings as his
own);Makino, U.S.A., Inc. v.Metlife Capital Credit Corp., 25 Mass.App.Ct. 302, 314-15 (1988)
(same). Therefore, in evaluating the adequacy of the Board's findings, a court may consider all
of the elements of the Application. See Shriners'Hospital for Crippled Children v.Boston
Redevelopment Authority, 4 Mass. App. Ct. 551, 558-59 (1976) (engineer's report, maps and
plans, and photographs may be used to support a finding, concluding that the findings were more
than mere repetitions of statutory language because of the records and reasons underlying the
findings). The Application further supports the Board's decision by including a map illustrating
that the proposed Wireless Facilities would eliminate a serious coverage gap experienced by
AT&T Wireless's customers on Route 114 and large portions of North Andover. Application,
Tabs 12-13, Ex. 3.
Finally, in order for findings to be legally sufficient, a board will not be required to
achieve perfection in the expression of its ideas. A board satisfies it burden of making adequate
findings as long as it offers more than"mere repetitions" of the language from the statute of
bylaws. See Bailey v. Board of Appeals of Holden, 370 Mass. 95, 98 (1972) (upholding board's
9
• '
decision against a challenge of the adequacy of its findings, noting that"[w]hile [the board's]
findings are conclusory, they are more than mere repetitions of the required statutory findings").
All that is actually required is an expression of findings sufficient to "set forth in the record
substantial facts which rightly can move an impartial mind, acting judicially, to the definite
conclusion reached." See Shoppers' World, Inc. v. Beacon Terrace Realty, Inc., 353 Mass. 63,
67 (1967). Again, by making express findings, imposing detailed conditions, and including
AT&T Wireless's detailed analysis of the Bylaw as part of the Decision, the Board set forth
substantial facts going well beyond mere repetitions of statutory and Bylaw language.
B. The Board Made Sufficient Findings in Support of its Decision to Grant
AT&T Wireless the Permit under Section 10.3 of the Bylaw.
As with the findings under Section 8.9 of the Bylaw,the Board made adequate findings
under Section 10.3. Under the procedures established by the Bylaw, once the applicant meets the
requirements of Section 8.9, the applicant must then meet the general special permit
requirements of Section 10.3. Bylaw § 8.9(3)(a)(iii), Ex. 1. Section 10.3 provides in pertinent
part that the Board may grant a special permit if. (a) "[t]he specific site is an appropriate location
rcondition;" r
for such a use, structure o (b) [t]he use as developed will not adversely affect the
neighborhood;" (c) "[t]here will be no nuisance or serious hazard to vehicles or pedestrians;"(d)
"[a]dequate and appropriate facilities will be provided for the proper operation of the proposed
use;" and (e) "the use is in harmony with the general purpose and intent of[the] Bylaw." Bylaw
§ 10.3.1(1), Ex. 1. As was the case for the Board's Section 8.9 findings, the Board's imposition
of detailed conditions, its express findings, and the substantial factual record upon which the
Board based its Decision and which the Board incorporated into its Decision, compel the
conclusion that the Board's decision was not one of whim or arbitrariness.
10
i
. I
1. The Board Made Adequate Findings in Support of its Conclusion that
the Site is an Appropriate Location for the Wireless Facilities.
i
The Board made legally sufficient findings to satisfy the first requirement of
Section 10.3, that "[t]he specific site is an appropriate location for such a use, structure or
condition." First, the Board made the express finding that"[t]he specific site is an appropriate
location for the project as it is being collocated on an existing wireless location."3 Decision, Ex.
2A. Second, the Application, incorporated by the Board into its Decision, details at length the
ways in which the Site is appropriate for Wireless Facilities. Application, Tab 2, p. 11, Ex. 3.
The Application states that the Site is appropriate for a wireless facility because, among other
reasons, it is a large parcel abutting a highway and has been used for telecommunications
purposes since the late 1950s, and because the nature of the existing structure is such that adding
the Wireless Facilities to the premises would cause only minimal visual impact. Id. These
findings, taken together, are more than sufficient to constitute legally sufficient findings because
they are, on their face, well more than mere repetition of the statutory standard. See Bailey v.
Board of Appeals of Holden, 370 Mass. 95, 98 (1972).
2. The Board Made Adequate Findings in Support of its Conclusion that
the Wireless Facilities will not have an Adverse Impact upon the
Neighborhood.
Similarly, the Board made legally sufficient findings in support of the second
requirement of Section 10.3, that the Wireless Facilities "will not adversely affect the
neighborhood,"by expressly stating that"[t]he use as developed will not adversely affect the
3 This finding is consistent with the Bylaw's strong preference for collocation. See,e.g.,Bylaw
§§ 8.9(3)(b)(i),Ex. 1 ("If feasible,wireless service facilities shall be located on preexistent structures,including ...
preexistent telecommunications facilities"); 8.9(3)(c)(v)(3),Ex. 1 (relaxing setback standards to"promote[]co-
location");8.9(6)(a),Ex. 1 ("Licensed carriers shall share wireless service facilities and sites where feasible and
appropriate").
11
neighborhood as indicated by the analysis conducted by AT&T and Donald Haes." Decision,
Ex. 2A. The Application, expressly adopted and incorporated by the Board, presents
substantially more than a mere repetition of the statutory standard as it contains evidence that:
"[t]he Wireless Facilities are a completely passive telecommunications
installation and . . . will not produce dirt, dust, glare, odor, fumes, smoke, gas,
sewage,refuse, noise, vibration, or danger of explosion or fire . . . will effectively
not be visible to passersby. . . will not require any lights . . . and will not adversely
affect the neighborhood."
Application, Tab 2 at p. 11, Ex. 3.
3. The Board Made Adequate Findings in Support of its Conclusion that
there are Adequate and Proper Facilities for Proper Operation of the
Wireless Facilities.
The Board also made legally sufficient findings as to the third requirement of
Section 10.3 that "[a]dequate and appropriate facilities will be provided for the proper operation
of the proposed use." First, the Board made the express finding that"[a]dequate and appropriate
facilities will be provided for the proper operation of the proposed use." Decision, Ex. 2A.
Second, the Board detailed an extensive list of special conditions that ensure the proper operation
of the Wireless Facilities. Id.; see Shuman v.Board of Alderman of Newton, 361 Mass. 758,
764-65 (1972); Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 621-22 (1986).
Addressing the issue of proper operations, the Board required, as a special consideration of the
Permit, that AT&T Wireless comply with a Board-prescribed procedure in the case of
abandonment and requires AT&T Wireless to post performance guarantees in the form of bonds
and insurance. Decision, Ex. 2A; Application, Tabs 14-16, Ex. 3. Third, the Board incorporated
the Application into its Decision. The Application, in turn, specifically addresses the adequacy
and propriety of the facilities and includes a structural engineer's report that confirms the
adequacy of the Tower to support the Wireless Facilities. Application, Tab -11, Ex. 3; see
Shriners'Hospital for Crippled Children v. Boston Redevelopment Authority, 4 Mass. App. Ct.
12
551, 558-59 (1976) (adequacy of findings bolstered by reports submitted by applicant);see also
Cormier v. Car 381 Mas 2 '
Mass. 34 237 1980 factfin er
Carty, ( ) ( d may adopt one party's findings as his
own);Makino, U.S.A., Inc. v.Metlife Capital Credit Corp., 25 Mass.App.Ct. 302, 314-15 (1988)
(same).
4. The Board Made Adequate Findings in Support of its Conclusion that
the Wireless Facilities will not Pose a Risk of Creating Nuisances and
Special Hazards to Vehicles or Pedestrians.
The Board also made legally sufficient findings in support of its conclusion that the
Wireless Facilities will not pose a nuisance or special hazard to vehicles and pedestrians. Those
findings are implied from the Board's general conclusion that"[t]he use as developed will not
adversely affect the neighborhood as indicated by the analysis conducted by AT&T and Donald
Haes,"and expressed in the Application, which states that the facility will be unmanned and will
only be visited by personnel once per month. Decision, Ex. 2A; Application, Tab 2 at p. 11,
Ex. 3.
The factual record, including the Application that was incorporated by the Board in its
Decision, indisputably illustrates that the Wireless Facilities will not pose a nuisance or special
hazard to vehicles and pedestrians. In the Application, AT&T Wireless shows that: the Site is a
large, 9.5 acre parcel, with the existing Tower and other structures located well back from all
public ways; access to the Site is through a private driveway on Boston Street, which is blocked
with a gate; once constructed, the Wireless Facilities will be unmanned; and the only traffic
generated by the Wireless Facilities will be a once per month inspection by AT&T Wireless
personnel. Application, Tab 2 at pp. 6, 11, Ex. 3. The Board, in turn, adopted this Application
into its Decision. Decision, Ex. 2A;see Cormier v. Carty, 381 Mass. 234, 237 (1980);Makino,
U.S.A., Inc. v.Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 314-15_(1988).
13
5. The Board Made Adequate Findings in Support of its Conclusion that
the Wireless Facilities are in Harmony with the Bylaw.
The Board's finding that the Wireless Facilities are in harmony with the Bylaw are
substantiated by the Board's prior findings regarding Section 8.9 and the facts as set forth in the
record.
The Bylaw provisions specifically applicable to wireless facilities, contained in Section
8.9, declare that"the express purpose of this Bylaw [is] to minimize the visual and
environmental impacts as well as the deleterious impact on property value, of wireless service
facilities...." Bylaw 8.9(1)(a), Ex. 1. Throughout the wireless facilities permitting section of the
Bylaw, Section 8.9, the Bylaw stresses the following goals: (1) adequate coverage; and (2)
collocation. Bylaw §§ 8.9(3)(a)(i), Ex. 1 (recognizing a need to provide the community with
adequate service); 8.9(3)(b)(i), Ex. 1 ("If feasible, wireless service facilities shall be located on
preexistent structures, including ... preexistent telecommunications facilities"); 8.9(3)(c)(v)(3),
Ex. 1 (relaxing setback standards to "promote[] co-location"); 8.9(6)(a), Ex. 1 ("Licensed
carriers shall share wireless service facilities and sites where feasible and appropriate").
Placement of the Wireless Facilities on the Tower at the Site fulfills the goals of both
adequate coverage and collocation. First, as discussed above,North Andover has a serious gap
in coverage, and the Board found that"[t]he carrier has demonstrated that the facility is
necessary in order to provide adequate service to the public." Decision, Ex. 2A; Application,
Tab 13, Ex. 3. Second, as observed by the Board, "[t]he specific site is an appropriate location
for the project as it is being collocated on an existing wireless location." Decision, Ex. 2A;see
Moore v. Cataldo, 356 Mass. 325, 328 (1969) (findings that public convenience and welfare
were served, and that neighborhood was not impaired, satisfied requirement of bylaw for finding
of harmony with its general purpose and intent).
14
The facts showing the reasonableness of the Board's expressed findings, as well as the
implicit findings that the Wireless Facilities promote the general Bylaw policies of Section 10.3
are detailed in the Application, which from page seven through page ten addresses policy by
policy how the Wireless Facilities are consistent with the policies of the Bylaw, and which was
incorporated by the Board into its Decision. Application, Tab 2 at pp. 7-10, Ex. 3; see Cormier
v. Carty, 381 Mass. 234, 237 (1980);Makino, U.S.A., Inc. v.Metlife Capital Credit Corp., 25
Mass. App. Ct. 302, 314-15 (1988).
Moreover, the detailed and lengthy set of special conditions required of AT&T Wireless
as conditions of the Permit are part of the required findings. See Shuman v.Board of Alderman
of Newton, 361 Mass. 758, 764-65 (1972); Tebo v.Board of Appeals of Shrewsbury, 22 Mass.
App. Ct. 618, 621-22 (1986). These special conditions address a wide spectrum of Bylaw
purposes, from specifying abandonment procedures, to performance guarantees, noise
generation, lighting and the stockpiling of materials, all of which serve as findings. Decision,
Ex. 2A.
II. BOSTON HILL'S REMAINING ALLEGATIONS OF ERROR ARE BASED ON
MISREADINGS OF THE BYLAW AND APPLICABLE STATUTES.
A. The Board Correctly Determined that the Wireless Facility Complies with
the Setback Provisions of the Bylaw.
The plaintiff's contention that the Tower fails to meet the setback provisions Bylaw
Section 8.9 is based on a plain misreading of that provision. Because the Wireless Facilities are
to be attached to a pre-existing structure, the required setback is that in effect in the zoning
district generally, Bylaw § 8.9(3)(c)(v)(2),4 and not twice the height of the facility, as the
4 Section 8.9(3)(c)(v)(2)provides that where"a preexistent structure is proposed as a mount for a wireless
service facility,the setback provisions of the zoning district shall apply."Bylaw,Ex. 1.
15
plaintiff appears to contend. See Bylaw § 8.9(3)(c)(v)(1), Ex. 1 (non-preexistent ground-
mounted wireless facilities must be set back from the nearest property line by a distance of twice
the height of the facility).
The Wireless Facilities satisfy the setback requirements of Bylaw § 8.9(3)(c)(v) because
they are in clear compliance with the setback provisions of the zoning district. The Site and
Tower are located in a Village Residential District. Complaint IT 11-12, Ex. 2. The maximum
setback requirement in the Village Residential district is 30 feet. Bylaw § 14, Table 2, Ex. 1.
The Wireless Facilities will be located at 187 feet from any property line, more than six times the
distance required by the Bylaw. Application,Tab 1, Ex. 3.
B. The Board Correctly Determined that the Wireless Facilities Comply with
the Visibility Provisions of Bylaw Section 8.9(4)(d)(ii).
Plaintiff is plainly incorrect in its contention that the Board should not have granted the
Permit because Boston Hill plans, at some point, to deed some nearby land to conservation,
agricultural, or recreational uses and hopes, at some point, to establish a residential development
nearby. Complaint¶ 30(D), Ex. 2. It is true, as Boston Hill appears to contend, that the Bylaw
states that wireless facilities shall not be located within open areas that are visible from
"recreational areas or residential development." Bylaw § 8.9(4)(d)(ii), Ex. 1. It is not true,
however, that Boston Hill is the present owner of either a recreational area or residential
development that would trigger application of this Bylaw provision. Instead, Boston Hill
contends that the Wireless Facilities would be visible from areas of this kind if Boston Hill is
eventually able to construct a residential development nearby, and if that development includes
some recreational areas. Denial of a special permit based on the visibility of a proposed facility
from some hypothetical location or perspective, would be arbitrary and capricious in the
extreme.
16
Furthermore, only the visual impact of the Wireless Facilities actually being permitted is
at issue. The existence and visibility of the Tower are facts on the ground,predating by decades
this proceeding and Boston Hill's development plans. As can be seen from the computer
generated photographs, the Wireless Facilities which are the subject of this litigation are
indistinguishable from the Tower. Application, Tab 4, Ex. 3. Moreover, Boston Hill, in its
Complaint, miscalculated and therefore misrepresented the square footage of the antennas
proposed as part of the Wireless Facilities. Complaint¶30(D), Ex. 2. Boston Hill has asserted
that the proposed Facilities will include "270 square feet of antenna at a height of 120 feet. . ."
Id. In fact, each antenna is only 6 inches wide, and four to five feet high. Application, Tab 2 at
p. 5, Ex. 3. Assuming that one were to see the widest surface of all nine antennas at the same
time, a physical impossibility, the maximum antenna area confronting the viewer would not be
more than 23 square feet. The remaining Wireless Facilities have an even more minimal visual
impact. See Application,Tab 4, Ex. 3.
C. The Board was Correct in Concluding that the Proposed Wireless Facility
was not Required to Undergo Site Plan Review and Approval Pursuant to
Section 8.3 of the Bylaw.
Boston Hill's contention that AT&T Wireless was required to apply for and receive site
plan approval under Section 8.3 of the Bylaw is also based on a misreading of the Bylaw. See
Complaint¶30(E), Ex. 2. Under Section 8.3, site plan approval is required for construction of
more than 2,000 square feet of space, construction requiring five or more additional parking
spaces, construction which contains new processes not associated with the existing use, or for
wireless facilities when those facilities are proposed to be constructed on "a previously permitted
facility as set forth in Section 8.9(3)(a)(ii) Wireless Facilities Use Regulations. (Added ATM
5/12/98, approved 10/27/98)." Section 8.3(2)(a), Ex. 1. Because the Wireless Facilities will not
change the existing use of the Tower, require five or more parking spaces, or alter 2,000 square
17
feet of gross floor area, site plan review is not required under the first three prongs of Section
8.3(2)(a). Because the Tower was not permitted"under this Section 8.9," site plan review is
also not required under the final prong of that section. Bylaw Section 8.9(3)(a), Ex. 1; Section
8.3(2)(a)(iv), Ex. 1. Instead, AT&T Wireless is required to follow the more demanding special
permit requirements of Section 8.9. Bylaw Section 8.9(3)(a)(ii), Ex. 1.
D. The Board was Correct in Concluding that in Order to Issue the Permit, it
was Unnecessary to Modify the Existing Variance for the Tower.
Because the only existing variance for the Tower is a height variances, and the proposed
Wireless Facilities will not alter the height of the Tower, the variance need not be modified in
connection with installation of the Wireless Facilities. See G.L. c. 40A, § 10; Barron Chevrolet
Inc. v. Town of Danvers, 419 Mass. 404, 408-09 (1995) (modification of variance not required
where characteristic for which variance was granted is unaffected by proposed alteration). The
antennas will be located 20 feet below the top of the Tower. Application, Tab 2 at p. 5, Ex. 3.
Therefore, AT&T Wireless is not required to seek, and the Board is not required to have granted,
a modification of any existing variance under G.L. c. 40A, § 10. See Barron Chevrolet, 419
Mass. at 408-09.
S The Board granted this variance in 1957. MIT Decision,Ex.4. The height limitation at the time under the
Bylaw was 65 feet.Id. The variance allowed construction of a tower and radar facility with a total height of 132
feet. Id. The Board has followed the MIT variance with two more extensions on the height of the Tower. In 1982,
the Board issued a special permit to Benjamin Famum allowing construction of additional antennae and transmitting
dishes to the Tower with a limitation that the facilities were not allowed to exceed a total height of 140 feet. Farnum
Decision,Ex.5. In February, 1984,the Board granted a special permit to WNEV-TV to extend the height of the
Tower another 30 feet,specifically finding that the 30-foot extension was within the 25 percent limitation on
expansions of prior non-conforming uses imposed by the Bylaws. WNEV Decision,Ex.6.
18
i
li
E. G.L. C. 40A, § 6 Poses No Barrier to the Installation of the Wireless Facilities
Because the Wireless Facilities are not a Pre-Existing, Nonconforming Use
and, if they were, the Decision Makes an Adequate Section 6 Finding.
Boston Hills' claim that AT&T Wireless failed to obtain a necessary finding under
G.L. c. 40A, § 6 ("Section 6") is meritless because Section 6 is not implicated by AT&T
Wireless's Application. G.L. c. 40A, § 6. No Section 6 finding is necessary in relation to AT&T
Wireless's Application because the Wireless Facilities are a new use, subject to current zoning,
not an extension of a non-conforming use. Section 6 exists to describe those occasions when
current zoning regulations will not apply to a pre-existing non conforminguse. G.L. c. 40A, 6.
§
AT&T Wireless has acknowledged from the outset, by word and deed, that its Wireless Facilities
must comply with current zoning in order to install a wireless facility anywhere in North
Andover. This special permit process is necessary because the Wireless Facilities proposed are a
new use, not an extension of a prior nonconforming use. To require a Section 6 finding under
these circumstances would be illogical in that the essence of a Section 6 finding is an analysis of
the potential harm resulting from permitting a use to be expanded without that use being subject
to current zoning. Where, as here, the new use is subject to current zoning, such an analysis is
impossible.
Furthermore, if a Section 6 finding were required, the Decision makes a finding sufficient
to satisfy Section 6: that the extended use is not substantially more detrimental than the existing
use. G.L. c. 40A, § 6. The Board found in the Decision that "[t]he use as developed will not
adversely affect the neighborhood as indicated by the analysis conducted by AT&T and Donald
Haes." Decision, Ex. 2. The logical conclusion of a finding that proposed facilities will not
"adversely affect the neighborhood" is that the extended use will have no negative impact, and
therefore, cannot have a greater negative impact than the existing site.
19
Conclusion.
As a matter of law, the undisputed facts show that the Board has not exceed its authority,
or acted arbitrarily or capriciously, and has properly used its statutorily granted authority to
determine that AT&T Wireless's application complies with the Bylaw. AT&T Wireless
therefore respectfully requests that the Court grant its Motion for Summary Judgment.
Respectfully submitted,
Emily R. Donovan/s/
Kenneth W. Salinger(BBO#556967)
Emily R. Donovan(BBO #632867)
Jeff Z. Mann (BBO #644934)
PALMER& DODGE LLP
One Beacon Street
Boston, MA 02108
(617) 573-0100
May 22, 2000.
CERTIFICATE OF SERVICE
I hereby certify that I caused a true copy of the above
document to be served upon the attorney of record
for each other party by first-class mail on May 22,2000.
Emily R. Donovan/s/
20
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THE COMMONWEALTH OF MASSACHUSETTS
LAND COURT
EDWARD W. BROOKE COURTHOUSE
24 NEW CHARDON STREET
BOSTON, MASSACHUSETTS 02114
PHONE: (617) 788-7470
June 21, 2000
i
Brian Levey, Esq. Thomas Urbelis, Esq.
Bowditch & Dewey Urbelis, Fieldsteel & Bailin, LLP
161.Worcester Road 155 Federal Street
Framingham, MA 01701-9320 Boston, MA 02110
Emily R. Donovan, Esq. Francis Diluna, Esq.
Palmer& Dodge, LLP Roche Carens & DeGiacomo
1 Beacon Street 600 Unicorn Park Drive
Boston, MA 02108 Woburn, MA 01801-3343
Re: Misc. Case No. 256427
Boston Hill Development, LLC v. Town of North Andover Planning Board
NOTICE OF HEARING
OF MOTION FOR SUMMARY JUDGMENT
Please take notice that Justice Lombardi has scheduled a hearing on the
above motion for:
October 3, 2000 at 2:00 P.M.
In the event your case is settled, please contact the court as soon as possible.
YOUR ATTENTION IS DIRECTED TO RULE X OF THE LAND COURT RULES.
Very truly yours,
Mark Richman
Sessions Clerk
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15.5 dBd 850 Directional Log Perodic Antenna
Model Number DB9501385E-M I D6950G85E-KL
Termination 7116 DIN("E")Female
Frequency Range 1850.1990 MHz 1710-1880 MHz
Gain 15.5 dBd(17.6 dBi) 3.54'
90mm
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Polarization Vertical
Max.Input Power 250 Watts
Application DCS 1800,PCS
Weight 10.5 Ib.(4.8 kg)
Wind Area Frontal Area: 1.0 1112(0.09 m2)
Lateral Area: 2.7 ft2(0.25 m2)
Wind Load Frontal Thrust: 401bf(178N)18kp
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Max.Wind Speed 125 mph(201 km/h)
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DB5094-AZ azimuth bracket,optional.
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Weather Protection Fully protected by metal and LIV stabilized
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Lightning Protection All metal parts grounded.
Packing Size TBD
Shipping Weight 20 lbs(9.1 kg)
Antenna Patterns
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periodic antenna with 85" horizontal 3 dB
bearnwidth for-M: 1850-1990 MHz or
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A Division of Allen Telecom Inc.
8635 Stemmons Freeway - P.O. Box 569610 - Dallas,Texas 75356-9610
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