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Miscellaneous - 300 CHESTNUT STREET 4/30/2018 (7)
C; ..s MST Town of North Andover Town Clerk Time Stamp �j Community Development and Services Division Office of the Zoning Board of Appeals 400 Osgood Street North Andover,Massachusetts 01845 Raymond Santilli, Interim Community Telephone (978)688-9541 c --� Fax 978 688-9542 Development Director ( ) 3Z nnAny appeal shall be filed within Notice of Decision y, J PJ rn (20)days after the date of filing Year 2005 of this notice in the office of the rn Town Clerk,per Mass.Gen.L.ch. 40A, §17. Property at: 300 Chestnut Street tU r{t NAME: Cingular Wireless LLC,580 Main Street, HEARING(S): February 8,April 12,May 12, Bolton,MA 01740 June 14,July 12,&August 9,2005 ADDRESS: for premises at: 300 Chestnut Street PETITION: 2005-001 North Andover,MA 01845 TYPING DATE: August 11,2005 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,August 9,2005 at 7:30 PM in the Town Hall top floor meeting room, 120 Main Street,North Andover,Massachusetts upon the application of Cingular Wireless LLC,580 Main Street,Bolton,MA 01740,for premises at:300 Chestnut Street, North Andover,requesting a dimensional Variance from Section 8,Paragraph 8.9(3)(cxv)of the Zoning Bylaw, minimum requirements of the distance to lot lines,in order to install additional antennas on the existing antenna tower. Said premise affected is property with frontage on the East side of Chestnut Street within the R-3 zoning district. The legal notices were published in the Eagle Tribune on January 24&January 31,2005. The following voting members were present: Ellen P.McIntyre,Richard J.Byers,Thomas D.Ippolito,and Richard M.Vaillancourt. The following non-voting members were present: Joseph D. LaGrasse and David R. Webster. Upon a motion by Richard J.Byers and 2 d by Richard M.Vaillancourt,the Board voted to grant the dimensional Variance from Section 8,Paragraph 8.9(3)(c)(v),minimum requirements of the distance to the lot lines in order to install additional antennas on the existing antenna tower. Voting in favor of the motion: Ellen P.McIntyre and Richard J.Byers. Voting to deny the motion: Thomas D.Ippolito and Richard M.Vaillancourt. The Board finds that the motion for the Variance petition failed to receive the required super majority of four votes, per Mass.Gen.L ch.40A§15. The Board finds that the applicant was requested to address the issue of hardship in general as well as hardship as it pertains to soil,shape,and topography during the April 12,2005 hearing. The applicant provided the May 6,2005 written response and the May 12,2005 verbal response during the hearing to the issue of hardship as it pertains to gap coverage,but not to soil,shape and topography. The Board finds that owing to circumstances relating to the soil conditions,shape,or topography of the land or structures,and especially affecting such land but not affecting generally the zoning district in which it is located,a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship,financial or otherwise,to the petitioner,that desirable relief may not be granted without substantial detriment to the public good,and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of this Bylaw as stated in Section 1 and Section 10,Paragraph 10.4. Town of North Andover Board of Appeals, P� Ellen P.McIntyre,Chair Decision2005-001. M98.CP2. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 E NORTF/ 1 ?��t�`'� ;,•.•ti o Town Clerk Time Stamp F° ECEIVE�- T0';'�,a CL_ERIK"S Ci =LCI~ ..�_. •�' 2006 JUN 27 PH 4: 15 Argo �1ss{cF+us t TOVIN 0 - ZONING-BOARD OF APPEALS NORTH Community Development Division MASSACHUSL June 26, 2006 Thomas J. Urbelis, Esq. 'Urbelis&Fieldsteel, LLP 155 Federal Street Boston, Massachusetts 02110-1727 Re: New Cingular Wireless PCS LLC v. Town of North Andover, et al. Civil Action Docket No.: 05-1580B Dear Atty. Urbelis: The North Andover Zoning Board of Appeals voted to authorize Thomas J. Urbelis, Town Counsel, to sign the Agreement for Judgment as the representative of the Board of Appeals during the regular June 13, 2006 meeting upon a motion by Thomas D. Ippolito and 2nd by Richard J. Byers. Voting in favor: Ellen P. McIntyre, Richard J. Byers, Thomas D. Ippolito, and Richard M. Vaillancourt. Respectfully, Ellen P. McIdyk, Ch6irman Zoning Board of Appeals 2005-001. M98.CP2 cc: Town Clerk Stephen D. Anderson, Esq, Scott F. Lacy, Esq. Douglas H. Wilkins, Esq. ZBA file 1600 Osgood Street,North Andover,Massachusetts 01845 J Phone 978.688.9541 Fox 978.688.9542 Web www.townofnorthandover.com 2 ! �- (D0 Page 1 of 1 Glennon, Michel From: Thomas J. Urbelis[tju@uf4aw.com] Sent: Monday,August 07,20061:12 PM To: Glennon,Michel Cc: Ellen McIntyre;attymanzi@manzilaw.net Subject: FW: N.Andover/Cingular Mich..........here is an email from Attorney Wilkins with the proposed revised Agreement for Judgment. Tom. From: Douglas Wilkins[mailto:DWilkins@AndersonKreiger.com] Sent: Friday, August 04, 2006 9:24 AM To:Thomas J. Urbelis Cc: WILKLADO@aol.com Subject: RE: N. Andover/Cingular Tom: Here are my requested changes. I haven't had a chance to double check the word document against my email, so I'm including that too. I'll check if possible, but its a busy time. certainly by the end of the weekend, I can do it. Doug From:Thomas J. Urbelis[mailto:tju@uf-law.com] Sent:Thursday,August 03, 2006 9:29 AM To: Douglas Wilkins Subject: FW: N. Andover/Cingular Doug.......you may sign my name to the enclosed motion. Also, I previously sent to you an Agreement for Judgment. Just so there is no misunderstanding, please send to me the document which you now want the parties to enter into. Tom. From: Kelly M. Patterson Sent:Thursday,August 03,2006 8:23 AM To:Thomas]. Urbelis Subject: N. Andover/Cingular Kelly Patterson Urbelis&Fieldsteel,LLP 155 Federal Street Boston,MA 02110 Phone No.(617)338.2200 Fax No.(617)338-0122 8/8/2006 --400 Osgood Street Y 1'R,off North Andover,Massachusetts 01845 Raymond Santilli Interim Community Telephone (978)688-9541 0 Development Director Fax (978)688-9542 3a � -;o Any appeal shall be filed within Notice of Decision 3'= po rn (20)days after the date of filing Year 2005 mss' �c of this notice in the office of the G —v :n7 Town Clerk,per Mass.Gen. L.ch_ ��� 40A §17. Property at: 300 Chestnut Street tv t=s rr: NAME: Cingular Wireless LLC,580 Main Street, DEARING(S): February 8,April 12,May 12, Bolton,MA 01740 June 14,July 12,&August 9,2005 ADDRESS: for premises at 300 Chestnut Street PETITION: 2005-001 North Andover,MA 01845 TYPING DATE: August 11,2005 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,August 9,2005 at 7:30 PM in the Town Hall top floor meeting room, 120 Main Street,North Andover,Massachusetts upon the application of Cingular Wireless LLC,580 Main Street,Bolton,MA 01740,for premises at 300 Chestnut Street, North Andover,requesting a dimensional Variance from Section 8,Paragraph 8.9(3)(cxv)of the Zoning Bylaw, minimum requirements of the distmce to lot lines,in order to install additional antennas on the existing antenna tower. Said premise affected is property with frontage on the East side of Chestnut Street within the R-3 zoning districL The legal notices were published in the Eagle Tnbune on January 24&January 31,2005. The following voting members were present: Ellen P.McIntyre,Richard J.Byers,Thomas D.Ippolito,and Richard M.Vaillancourt. The following non-voting members were present: Joseph D.LaGrasse and David IL Webster. Upon a motion by Richard J. Byers and.?d by Richard M. Vaillancourt,the Board voted to grant the dimensional Variance from Section 8,Paragraph 8.9(3xcxv),minimum requirements of the distance to the lot lines in order to install additional antennas on the existing antenna tower. Voting in favor of the motion: Ellam P.McIntyre and Richard J.Byers. Voting to deny the motion: Thomas D.Ippolito and Richard M.Vaillancourt. The Board finds that the motion for the Variance petition failed to receive the required super majority of four votes, per Mass.Gen.L ch.40A §15. The Board finds that the applicant was requested to address the issue of hardship in general as well as hardship as it pertains to soil,shape,and topography during the April 12,2005 hearing. The applicant provided the May 6,2005 written response and the May 12,2005 verbal response during the hearing to the issue of hardship as it pertains to gap coverage,but not to soil,shape and topography. The Board finds that owing to circumstances relating to the soil conditions,shape,or topography of the land or structures,and especially affecting such land but not affecting generally the zoning district in which it is located,a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship,financial or otherwise,to the petitioner,that desirable relief may not be granted without substantial detriment to the public good,and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of this Bylaw as staged in Section 1 and Section 10,Paragraph 10.4. Town of North Andover Board of Appeals, ATTEST: A True Copy Ellen P.McIntyre, Town Clerl Decision2005-001. M98.CP2. F E B 2 _ 2006 Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978.688-9540 Planning 978-688-9535 uOARD OF APPEALS I 33 sh J �R� iyo B! SEE PLAT N0. 38 + o f�ocf P 4 17 16 1.5 4 9 18 D a , z m SZREE� 35 34 w� 20 9 4,A u 12 aup 30 JOHNSON '- 22 23 �sy1D � 56 4+" 1 ' ' 33 :~>< 11 lot 1 D 2 IW2 26 31 57A. 4•„ ' x pl#1452 lot y 11 1 A 24 'IM 4 1 1 3 0.6]K IDt 29 ` 0 `A.ip 45,161 .ns r •-+� m.*xD �1ea JAY 27 10 v' xa664 + n}°P 43 36 2A 25 60 4 9 44 c "• W7. " 58 a 591. . 37 47 46 xs.Dro A 50 38 a 81 n 5 79 80 zs1 nc wam os��\``CaP� 49 00 10 z 103 51 x 39 v 125 1 4 48 ' ».D0° y 107 a 52 % .40 108 0��� 6 126 X23 w xsa4a F, 109 -- w w �' �N 96 82 7 122 0 53 m 4 0 p z 110 ^' 97 ''� 97 76 70 2P A 68 xs.131 6•af �(LP y n.6>• s x.6 K. ��ppO 95 'D30' OPEN SPACE A a 50.4,5 xaem xai1�,6 �y'� SS 42 W 100 83 12 �2p1#14502 g 54 94 10 9 X99 12 71 61 �. 99 >> p 4 © w aeax. xas4x 101 119 KARA 4130 cyl QE f 'm K 1�1 Cdr �•#`� .. DRn E g 131 72 .,. '►,nb ,r, r tSA «> 9 0 90 �/•�\ a 132 3�2 yw 1 16 SEE 988- d Of \ 66 67 �,/ ( SSJ 87 85 v .X20 " 115 m ' 73 64 e6 :ale. m.w n.ax xaxa `� 1�3 •S1 12 Cq�Fy�K 114 5 s 9 Cl K`7 xe.1.s n4.: R $ `'' 8438 113 75 J o 13 136 N SPAC C rwY x4m oww�rw m rss. 135 °'�"� Q 13 ,1a1 2 SEE 98D 96 11. SCALE — 200 = 1 INCH SEE PLAT NO. 98C ; SEE 9 C PARCEL 11 LOT A2 z140 ,S PLAN#13538 N.E.R.D o 41 sof t t a POO -y t AD Glennon,Michel From: Scott F. Lacy [slacy@AndersonKreiger.com] Sent: Friday, July 08, 2005 1:26 PM To: Glennon, Michel; Glennon, Michel Cc: Jeffrey Roelofs Subject: RE: CIN/MA/NorthAndover- ZBA- 300 Chestnut Street (BOS-020) - revised site plan 0236_001.pdf Dear Mitch, Pursuant to the Board's request, attached is the revised site plan depicting the 600' radius. Should you have any problems opening the attachment, please let me know. Thanks, Scott «0236 001.pdf>> Scott F. Lacy, Esq. ANDERSON & KREIGER LLP 43 Thorndike Street Cambridge, MA 02141-1764 617-252-6575 fax: 617-252-6899 1 1 �� ,6 SEE PLAT 98 NO. e -e' / � �pa"�kr 69 � 2 �(,f_l �r� gIC fib A 2 /✓/�) / \ 4A ` 6 D V P�,V \ 1.%?2ac +..Y w. 3.048 x 75 76 11 12 6.233 m13 7A 77 054 , 133 4s.4es 7U 106 109 68 +� I +.K «.r ' ..,`.... ,1 W "' O ur Ta 6 CO & 110 000 27.000 0.594 ac 27.804 308,4 Cl GREEN W `� �`7gp kzc 3T >+' 1n 74 rr 30.7131 /- r 067 Sp 13r 2 2ss07 0.688 AC " 3 O �10 YV� w 127 13 izr c TNS 107 tl �� CHESTNUTIVTr 11. .:,• a 3�L 1 2 65 127 IV W E 62 63 64 79 a 51 80 R 26 27 20 29 25. 2a "A '2A zs 109 49 1u 030 33.77a 81 82 84 85 o� +9A A 803 tf ,TA 25,030 29 27.105 2s,7eo � 86 as7Aa 27.29g O 25.057 5,035 11 00,53e 27,831 d a 2 3 55 3s iQ j 31 J2 3+.047 31.7go 35 30 31 y 1P co W 27.71831.36a o 4 a` a 9 a7 as 34 35 w SAVILLE Y 10 89 76 38 i 1M ST 33.762 9037 V7 »r 0.65 ac 20.000 104 292 91 13 93 36 35 22r 100 92 274 49 1u Nell? - 25 � f� co CHESTNUT BL VFBERR,, ' 26 t b cb 103 �2p 1x 31.059 33.502 . ay ?; 46 Ur H/LC 13r 32.253 114 b 102 12, LANE $37 32.'?a BOOTH 75.1715E rzr 1a �, ST.. 101 100 100 n• 14922 "• y 9 ?2 46 99 '1° 131 294 St' 45 X 163 42 U 15 « 43 97 25 41 0.80 Ac 30,071 43 0.72 AC 96 15.012 j r� ` qb 10 311 41 ., 95 it 17V M 4 5 001s ,1 31.e15 4u94 ADR IAN ST. 6 Ti `'0 17 1z ll1 125 sr r 3 39 N .. 105 18 13 W 3Q000 41% >7 48 113 50 n, h 35t000 19 14 24 37� 20 29,492 SY 32.810 S.F 15 .pT Cj��G la 2 r�F "' 2156 53 57 1.r �3 �.�yT 58 1 A 3'% 22 60 59 1s, 20 46 13 2.4,AC Rp,33 40 ' N 52 lir 23 j ,9,466 2.41 AC 3317 4.20 AC 'T 27 1.26 Ac 1.09 AC 26 T.12 AC 61 1.03 AC 7 1.iSAC Loss Ac I ��y 11, 9.31 u '� SCALE- 200 FEET = 1 INCH SEE PLAT NO. 25 FISCAL 001 MAPS DRAWN BY FRANK S. LES,P.L.S. _ -' -- - - MEASUREME TS ARE SCALED ONLY NOT FOR SURVEY�URP SE. NEE NLA I NU. SSS " R\� �a 1 I4 6 15 13 31 17 y1.631 1� 18 n y�810 'S 2 C 69 19 12 SZ 34 gT 95 ar '� 31 REa 35 luk13 20 24 x5000 N --rte 9 asp0 y v 45, 7 156 JpE114 36 ON 22 23 ash 45� 6, 56 11 � ,s 28 32 aaq�a 33 1723 _ ►j 2 26572 x6198 57 ag91a — / — 1 26 31 0.59skc U 24 - y ss. O� R .b 29 31 C� ss X50 x5,156 ✓� n ST 3 A 7 10 ,b ` A5..1-0 aa.+ 27 lYY 3,b1?1C moi" z1� 5,504 'r lb ala 43 - 2A 25 - 3660 76,305 - o b. y' 9 33 2 AlA2 4 9 S,a,0a0 58 5^5• 44 '25,12059 U m x2,'784 2 �,p aa.90 if 19 Y 5 ,1�V•r X15 37 SCA 2A 47 46 - , 45. 8 2s,aan 12 4s,pyJ 1 f NY N as, 14 81 \ 50 :' 38 " �cA 49,010 D' 15 5A 79 80 2.51 +c. �. .� �� , 2s,am 106 'C x57 ,q 49 Cr 103 16 1439 o ti3 ` 51 25,000 107 c. '� z48 3A oy 102. 105 17 ^b?¢^ 13 v` s 40 108 0 ¢ 6 52 6 u 12 1• � � _ i + —' y�Q` Q y r 0 9 25,000 .ti"1 19 109 n.S4o u p. 96 u,561 m 82 19A in53 ti 9?�s - 41 �T' 7 110 97 76 70 O� 68 25,13,7 20 25,976 o,c 95 3�.'T09 ,v � 42 PG' 17 : u 56.415 ^_5,870 25,11° 5 2s 121' SId 83 25 " SaA 3 1. 98 54 94 102 99 �, 2 C 1 s ( I Jg6 k 7 1 ,324 26,542 101 / "• L/ 1 f W 62 2 22 2w 2x36( 1 I Q 32,:3063 V6S4a ,q 132• 131• i2 12T A9' rr ,D r. )37. 3 a 84 G^ 6 1 J1 12 72 L Sj 16, 9 93 y2 y f90 89 32,E LLS 67 ( 8 26.6AC. 66 \ 87 8 86 ^3.1693:I b, 4 59 64 r 3.16 25'097 5240 1 SEE 98C PARCEL I 1 LOT A2 73 b — PLAN#13538 N.E.R.D 0.88 a,C 26,143 • 27,342 40,329 C758A / FISCAL:001 MAPS DRA BY FF4V`7K S.GIl.E9,P.L.S.PL9 1.53 AC 53,1142 MEASURENIENTS,VIE ONLY NOT FOR SURVEY PURPOSE. Pym /t SEE PLAT NO. 98 69 �1`� V 2 L� !AJ 1.7y1x 1 , •. \ f 75 76 „ 12 5.233 4e TA ,S w • V 1 1 3 4s48s 77 70 106 109 3a g I W m �i��// 110 � /'�•w�K O TSj.co 27,009 v x .69 n251 27,�0'ra a3D.89074 GOD 2A 124 30.713 2 25.807 0.50AC I ,./ 12, ur . 1j 1yt 3 d 2ti ` >A 1a 2t zr 12r m � 107 ,•� CHESTNUT n I..L. 2 127 W E 62 63 65 26 108 �j 51 25.030 X1, 2,A '" x3.776 80 81 82 e� 49 ,u ,w '° 803 . 84 85 9 17A 25,030 27,18529 .les 25,7e0 � 86 0.67 5 25.057 •035 11 30.538 27.299 27.831 3 55 � 31 32 34.047 31.798 35.680 30 31 y y' 33 x9.63. W 2,P x7 7,0 o A 8 9 87 as mM ►+� SAVILLE 31.36° r 10 gg 36 » � ,. 33,762 90 37 vt o.�: 2°•090 104 z j� 91 13 93 36 35 ST. ,q. 274 ~ � 3D.817zs � CHESTNUT ut 3 2j+ 2$732 26 ( 14t 221' 1► '>'� 103 /2s BLUEBE/?RY 31,0.50 33,502 1 7�, ,2) •\I MSC -z55 102 ,2, LANE „>12P 32.7s1Iv BOOTH 76 171 SF 14 �, ., rp ST.. w 2d• 101 100 12, 12. 149x2 16 N 1,1 2" �• t ��i► �' 45 151 42 cV 15 4. 96 41 0.80 AC 43 ! J 3x0.71 97 25 J 31� 43 Y 0.72 AC Q .b ,9 3 42 96 15,Otr try• � .A 1.1.. 34agr 41 95 ADRIAN T I 4 5 10 16 1 1 915 3 44 94 ST. 6 W 11s its TJT 17 12 3q A N 105 a. V' V1• 34000 18 a ''•ear Zi 48 113 50 19 ,4 t� "' 34 24 32.510.S.F 29.492 S.F 3450o 4> N/C1 37,E 20 2 CSIoE ' 21 53 56 57 2 h. ,�`'e3 23,,60 \NNS '" 58 4 A 3#012 22 z0. 60 59 2.41 AC 46 52 xl`• I ROgDt i 33 ,rr 23 M ,9466 2.41 AC 317 h 4.20 AC ,.2eAC 28 1.09AC 81 27 4 / 1.12 AC +.095 AC ov i ,7C / / MAPS DRAWN BY FRANK S. LES,P.L.S. SCALE - ZUU�FEET= 'ftFISCAL 001—'� SEE PLAT NO. 25 MEASUREME TS ARE SCALED ONLY NOT FOR SURVEYMRP SE. c- \ NEhFLA 1 NU.38 „ ' 14 13 1,, 16 15 y6J+ Q M a N 125 4 ° 18 v ,z ¢ gTRBET 34 69 19 u a „aw 12 s .r 35 zy6o `°"J 20 . 9y� JOHNSON 22 23 = sPoo 56, 28 33 11 V r'7 2 T65R a63� '• 57 09" 26 31 - 1 0.596Ac ., 24 ;�O ..you R 1 „ ""so t5?p ' 29 asno Nva JN,( ,M 10 )61AC y}M % 27 rsp0 4 s G • aAy1 4 43 - 36 2A 25 y NVJ9 m 4 9 44 25.X20 58 "°° 58 ,, 59 N?A 45 37 47 46 ,�^,3N �C TS.d11 n VpyJ 45� 8 f/J 45,0'JJ ,. VP 3 9 81 14 �. 50 Y 38 5 w a9.axo y a 79 80 zsl Ac. TSD 49 106 o- i 39 103 s au M + 51 Y uyao 107 Z 48 0� a 105 40 108 Q 652 i k 25 109 ° o a .. 'S.S. ,d¢?s y�4'.d r' G 4 zssbl 82 , •96 53 41 110 97 76 70 ^Pq�y n 68 x n u.m o�pec' un6 sbpls ssaTo ss,lzD t�F`' 55 42 100 83 # ySW t 64 n3+ 30 102 98 i M 61 „ A r 94 n„ 99 71 2CM) 3oJ� 3 a lu z6s4T 101 W 62 KARA x436, 63 Z ° > Jx.zw opo 84 72 S PSE _ r?'T• 93 92 91 90 89 0 32b30 LISP 67 88 aa ,M 66 87 85 x6 oAc. A 6q U.'" u,'" 4.,69 ss.o9x 86 # ,• xa° SEE 98C PARCEL I 1 LOT A2 a 73 b` PLAN413538 N.E.R.D w Q 0 di AC x6.143 2), .329 27,U2 p 75 (��JR ' �, f �� FlSCAL t0U1 MMS DM, BY flLWK S.OpF3,P L.S. l V A I.H AC J3.M2 ME 4UPFA�TRS NtE 3C 0MYNOTF0R3110.YYPMME rte\ 1126 A = ISD(gf�� CIP Gd �� I ) - a5 ✓ ✓1� i feD O�� c� �W► 15 5 i MI5 � y9 Pe7FH SEE PLAT NO. 38 m ocf 13 17 16 15 14 0 Z m SIREE, 34 20 69 19 18 " n 12 15 COHNSON M 1 5 28 « 22 23 x « •,yam •'� 56 N 33 11 r a 2 2fi 31 57 P1#1452 112 _ 24 0 • 113 1 11 Y ao «s° my 3 10.sys ROPO „t z 29 s,^ _ °"1� ossa• 27 a,.x^ 43 36 2A 25 60 0 44 P ..o•^ 58 .>' 59 4 9 45 0� 37 47 46 na^° 5o 38 49 +' 10 1 al 39 e� 6 103 �,qP 51 48 ,sc� 107 ,,f 125. 1 4 II �,. II 40 108 oP-�1f, 6 126 ,n •• .".. �P Zy •41 .4` 96 ,. 82 „7. 122 53 s I o 76 s70 110 P .. B7 oSYk 97 z —E A 100 83 12 ° pl#14502 z A54 �� 30�. 94 t02 98 12�; 12 N 71 61 z.nza 99 101 b3 62 *KARA z ORN1 1' '', 130 hTRFF a E 84 '• 131 72 v 'e'�y,NE 93 92 91 90 89 «. 116 SEfl 988- 66 67 88 $.7115 .e.A 0 64 86 73 R` `n 133 '3 Di 112,„ (94,E"+.,•� 114 a e 4 97 Q� 137 1 rww,c.. w..w•c.s.m w.os O <t 1 1 3 75 _ 1,36 2 SCALE - 200 = 1 INCH SEE PLAT NO.98C 9 (Q� 11SEE�988�96 SEE 98C PARCEL 11 LOT A2� w 140 ow PLAN#13538 N.E.R.D .� Town of North Andover µORT#/ Office of the Planning Department 0 H °� T 00 Community Development and Services Division 27 Charles Street - " North Andover,Massachusetts 01845 9ss^cHUs�t http_/lwww.townofnorthandover.com Town Planner: jim—oods@townofnorthandover.com P (978)688-9535 J.Justin Woods F (978)688-9542 SENT USPS VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED September 11,2003 Thomas D.Laudani Peachtree Development,LLC PO Box 907 North Andover,MA 01845 RE: Creation of Parcel A-1 Planning Board Approval of Open Space Entity Dear Mr.Laudani: On September 9, 2003 the Planning Board discussed your proposal to divide Open Space Parcel A in the Peachtree Subdivision/PRD and your request to approve the Rea Family Preservation Trust,LLC as the entity to accept and maintain ownership of the proposed Open Space Parcel Al. In order to divide this parcel,you will need to submit the enclosed ANR application. The fee for this application is$70.00 per new lot created. After the Open Space Parcel A is divided through the ANR process,you can convey Open Space Parcel A 1 to the Rea Family Preservation Trust,LLC,as the Planning Board approved the entity for the purpose of preserving Open Space Parcel A1. Sincerely, in oods,Town Planner r e North Andover Planning Board: Alberto Angles,Chairman George White,Vice Chairman Felipe Schwarz,Clerk John Simons Richard Nardella James Phinney,Associate Member Enclosure(1): ANR Application cc: North Andover Planning Board North Andover Community Development Director BOARD OF APPEALS 688-9541 BUILDING 688-9545 CONSERVATION 688-9530 HEALTH 688-9540 PLANNING 688-9535 /03 14:53 FAX Z003 r CERTIFICATE OF ORGANIZATION OF FILED REA FAMILY PRESERVATION'TRUST,LLC A Massachusetts Limited I iability Company AUG 2 12003 S23@TAHY(J 1116 CONWINW&UTH C0RF0j14T7UNs DIVISION The undersigned authorized person hereby fortes a limited liability company under Massachusetts General Laws,Chapter 1560,the Massachusetts Limited Liability Company Act,and adopts as the Certificate of Organization of such limited liability company the following: 1. Name of the limited liability company: REA FAMILY PRESERVATION TRUST,LLC 2. Street address of the office of the limited liability company in the Commonwealth at which its records will be maintained: 44 Rea Street North Andover,MA 01845 3. General character of the limited liability company's business: The character of the business is for the sole purpose to acquire,hold,own, convey,maintain and otherwise deal with the real estate to be conveyed to the Company as permanent,unobstructed open space and located on north side of Rea Street and east side of Chestnut street in North Andover,F sex County, Massachusetts and shown as Open Space C and Open Space A-1 on a plan entitled'?Ian of Laud Subdivision Plan Open Space Parcel A for Peachtree Farm in North Andover,Mass prepared for Peachtree Development,LLC' dated July 14,2003,by Marchionda 8t Associates,Lp_ 4. Latest date of dissolution of the limited liability company: The limited liability company is to have no specific date of dissolution. S. Name and business address of the resident agent for service of process: Kenneth W.Rea 44 Rea Street North Andover,MA 01845 6. Name and business address of each manager,if any.- Kenneth ny:Kenneth W.Rea 44 Rea Street North Andover,MA 01845 /03 14:53 FAX 2004 7. Limitation on liability of managers/Indeviisification: The limited liability company shall indemnify and hold harmless any member or manager,and any previous member or manager,and may indemnify and hold harmless any current or former officer or employee,from and against any and all claims and demands whatsoever,including the payment by the limited liability company of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding,upon receipt of an undertakiug,by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under Section 8 of the Massachusetts Limited Liability Company Act,which underWdng may be accepted without reference to the financial ability of the person to make repayment. Notwithstanding the foregoing,no indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good Wth in the reasonable belief that his action was in the best interest of the limited liability company. S. Execution of Documents: Kenneth W,Rea is authorized to execute any document to be filed with the Semvtary of the Commonwealth of Massachusetts. 9. Ezeeation of Documents Relating to Real Property: Kenneth W.Rea is authorized to execute, acknowledge,deliver and record any recordable instrumerd on behalf of the LLC purporting to affect an interest in real property,whether to be recorded with a registry of deeds or a district office of the Land Court IN WITBNESS VAMMOV,the undersigned,being an authorized person for purposes of Section 12 of the Massachusetts Limited Liability Company Act,hereby affirms,under penalties of perjury,that the facts stated herein are true,thiOl day of July, 2003. I Kenneth W.Rea 09/09/03 14:52 FAX 0 002 ECKERT SEAMAN'S GRIN&MELLOTT,LLC MEMORANDUM TO: Gerry Lynn Darcy CC: Thomas D.Laudani FROM: Robert W. Levy DATE: September 9, 2003 RE: Planning Board Hearing—Peach Tree Development Pursuant to Paragraph 5 of the Special Permit issued by the North Andover Planning Board on February 10,2003,one of the entities in which the designated Open Space Parcels are to be conveyed is as follows: "5(d) Any Group or Entity as approved by the Planning Board that exists or is created for the purpose of preserving the Open Space." Accordingly,a limited liability company named Rea Family Preservation Trust, LLC has been established. Pursuant to the Certificate of Organization filed with the Massachusetts Secretary of the Commonwealth on August 21,2003,the general character of the Company is as follows: The character of the business is for the sole purpose to acquire,hold,own, convey,maintain and otherwise deal with the real estate to be conveyed to the Company as permanent, unobstructed open space and located on the north side of Rea Street and east side of Chestnut Street in North Andover, Essex County, Massachusetts and shown as Open Space C and Open Space A-1 on a plan entitled"Plan of Land Subdivision Plan Open Space Parcel A for Peach Tree Farm in North Andover,Mass.prepared for Peach Tree Development, LLC" dated July 14, 2003 by Marchionda & Associates,L.P. The Rea Family Preservation Trust,LLC is, accordingly, a single purpose bankruptcy remote entity and in accordance with Paragraph 4 of the Special Permit will grant a perpetual restriction of the type described in MGL Chapter 184,Section 31, running to or enforceable by the Town. Pursuant to Paragraph 4 of the Special Permit, the restriction will be submitted to and approved by the planning staff. A copy of the Certificate of Organization for Rea Family Preservation Trust is attached. (K026715].1J File Edit View Page Zoom Tools Annotation Cao Favorites Help . —,' , 1�0 }F Lai MD Back F"ourd Stop Refresh Home ' Gut Copy Paste Print Edit Address http:ilwww.lawrencedeeds.com/PLANIMAGES/PLANS/1 3500/13538/00001.tif G o Links » _J .! °�. D.j @& - c- + ! ij-1 ©I ® 255-1 FT 1 R F9— ®® ®® RW MOM, r�sc MYa CE DEEDSZONING DISMICT R-3 r2MMM .2 F6.177-•r MAMA = 240M &r AlgPMAL WHIMrW SUMWSMV CO'RT 8M FWWAGLj--US' COMM& LAID NOT AEO1AhR D FMW SEnM -V' W.G.L.CWAPTA? 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V1 FMR�I.+ReIW.t.1,1'`e+.-4i"IVt1111[""n!R'l A.Rr{II'V+•K`K'RR1C!4 rE'.a�+ HOW-e DEVELOPIKEN 1,1. r. riC'YR- M1YL1 tfAlA•111`.'..YRR ifY LN,.1frJ1 MFµ;,lr,JOni•1-TI Afl R. J. r`R, 303* 1� �NC}V.l;..�trink r,►1�11C1 - � �' � �i �;• •�a w r wrwa,»aeerw a1i run �r. Marrt� Pam L9Mb ,.,W I C .� jy a 4 ITr/�ApqCta A=EPthh! I , • -r"-" INDEX . � dl Ad . 77 61 MI11v MAP WALL ti•{CA• DentuvulTa+q .•.a .J..: .. n tl wit.J�•i.n V r•.Qf1I1AYf�lW X- •'je'... V'Y Y'y iH •VI/u a -•4 �-.i~•- Li Y "a JlwsJa . ar a�r.•wr•••-+ .. a 1. 11 . 1 10I • Iabil DI-gl I F ` Unknown Zane r Start cFll-� LI ` ; ;Inbox-Microsoft Outlook http:�"fwww.lawrence... I } 12:29 PM Wednesday,Jul 13,2005 12:29 PM 10�N A 1.0 IM9) 1.'Lall�g kAIRUP,IR I XR]SPEN LIM 1�I�J Lqs I-xi File Edit View Eage Zoom Tools Annotation Qo FAuorites Help Back Forward Stop Refresh Home Cut Copy Paste Print Edl� Address ' http://www.lawrencedeeds.com/PLAN I MAG E S/PLAN S/14500/14502/00004.of Go Links " D I 1 ALj _ I.L61 alai I1 ©1-®'1 10.80 rTP+L4 Lai L rr -�` Far r Y A .,.. � 'i ,S .x.•-. �. � , 1 mum4; _moi`• �� J - k-.J f - -'"` I �,' { r •r • —� �I ,tom � '�� �,�;- '! .! - "1.» •� , � L it 'F-' — !~y •~ � * .w... � �/ }rte . !� � �"'r.I/• t5•' �I L �f �s 7���}{ r.�e� l A �•//�rj.. - At t;+ +'il -• _`.r x++17 •�. T+' e'� , j .r �s, 7 1 1' , Ts zi _ ' r .�'� L N• v i 1 1 = 1 . 10 IN I_abll , I el 1 Unknown Zone Start I I -;C Inbox-Microsoft Outlook http::/www.lawrence... I 12:48 PM Wednesday,Jul 13,2005 12:48 PM ....... . ............................ ........................................ ......................... ..................... ..I......... . .. . .. . ....... ............................................................................................................................................................ . ................................................................................................................. ..................................................................................... ...... ........... .. . ............. .. ... .. . .... ...... .. .. ................... .... ... ... ...... . ......... ... ..................... . li"f9l?,M I COVENANT KNOW ALL MEN BY THESE PRESENTS THAT WI-MRE.AS the undersigned has submitted ar a application, dated Novcurber 1, 2002 to the Forth Andover. Phniing.Boazd fir approval of a Definitive Plan of a certain subdivision bearing the name of Peachtree Fart'*and shown on a plan entitled"Definitive Subdivision and Special Permit Pian PeacWee Farm in North Andover,Massachusetts"dated October 24, 2002,'last revised May 16,2003(the"Plan")and showing 29 single faanily lots and 5 attached townhouses and has requested that the Board approve such plan without requiring a performance bond, T IUS AGREEMBN'f WITNESSETH THAT,for the consideration that the North Andover Planning Board waive the aforesaid requirement for a bond,the undersigned covenants and agrees vrf h the Town of North Andover as follows: WAY 23103:411:. 1. The undersigned will not sell any of the lots 1-29 until the construction of the ways and the installation of the numicipal seroices necessary to adequately serve such rot has Been completed in the manner required in the aforesaid application, and in accordance with the covenants, conditions and agreements thereof, except for the /Wowing particular items of work, the performance of which shall be exempt from the conditions of this contract: construction of the ways and the installation of the municipal services associated with the construction of the five(5)attached townhouses on lot designated on the Plan as Lat B, Which Lot B is exempt from this Covenant. 2. 'i'he undersigned agrees to record this agreement in North Essex Registry of Deeds as required by the Rules and Rc;gulatioi is of the North Andover Planning Board. 3. The undersigned agrees that this contract shall be binding upon his/her heirs, executors, and administrators,and particularly upon any grantees of the undersigned. 4. Nothing contained herein shall be deemed to prohibit a conveyance by a single deed subject to this covenant,of either the entire pare.ol of land shown on the subdivision plan or all lots not previously released by the Planning Board. 5. A mortgagee who acquires title to the mortgaged premises by foreclosure or otherwise and any succeeding owner of the mortgaged premises or part thereof may sell or convey any lot,subject only to that porton of this covenant which provided that no lot be sold or conveyed until ways and services have been provided to service such lot. 6. Noting herein contained shall prohibit the applicant from varying the method of securing the construction of ways and installation©f municipal services from time to time or from securing by one,or in part by one and in part by another,of the methods descnbed in M.G.L.Chapter 41, Section 81-U, as long as such security is sufficient in the opinion of the planning board to secure performance of the construction and installation. It is the intention of the undersigned, and it is hereby understood and agrw4 that this contract shall constitute a covenant running with the land. Lots within the subdivision shall respectively be released from the foregoing conditions hereof t4 m the recording of a certificate of performance executed by a majority of said Planning Board which certificate shall enumerate the specific'ants to be so releQsed. There are no nxnVges of record or otherwise on any of the land in the aforesaid subdivision except as described below and the present holders of said mortgages have assented to this contract prior to its execution by the undersigned. ROK^����+��7p�c RT W 1. ESQ. txnzsssRa.t} UOST—U,MAP. 0110 �f �Q�„� � Yss c�n Its WMMM WMICGiO ,ft UMk DJ as albmw ,`ow 90 Usthff'j0MW aW 99 d& +of Mq,Btu - DeweVfim o-MortSW(C&e onVide roma and Registry of rcfcMce): None Big K&=PMpafiM LLC i Rf Acre by a-Majority of an Phming Baud of Nom Andover COMMONWEALTH OF MASSACHUSEM Vic,s3 May 2003 'ben Wmoudly:Wmed the abow narned-Kemeth W.Rea ad aomwkdge the breoug to be ft free act ad4eed of&g Kab a ft%MfdM LLC,before ate. Of Notm Pubg My Cmmum Exp m: r , i Page 1 of 3 PRD Special Permit Application 1,E CE I'Y ED : ,YCT DRADSHAV4 Town of North Andover Planning Board ' Application for PRD Special Permit ,,., 01 Please type or print clearly. 1. Petitioner: Peach Tree Development LLC Petitioner's Address: PO Box 3039 Andover,MA 01810 Telephone number. 978.687.6200 phone 978.682.6473 fmc 2. Owners of the Land: Kenneth W.Rea Address: Rea Strect,North Andover MA 01845 Number of years of ownership: 50 years 3. Description of Proposed Project: The proposed project consists of the preservation of the existing farmhouse,development of 29 new single family homes,a village green,and five attached townhomes with associated parking. The total open space preserved is 501/e(16.45 ac.+/-)of the total parcel size(32.94 acres). All 34 new homes will be connected to the municipal sewer system.The development team recognizes that this parcel is unique in its topographic character and rural/aesthetic value to the Town of North Andover. 4. Description of Premises: The property is presently developed,containing one(1)existing farmhouse and 33 acres The land has been used for a gravel/sand excavation periodically over the last 20 years,resulting in a landscape that contains limited existing vegetation and some reasonably steep grades along the northern edge of the property.The balance of the property has frontage along both Chestmrt and Rea Street,and is fairly level and rolling,containing some well defined wetland areas. The existing farmhouse is significant in that it typifies a rural New England architecture associated with past agricultural use of the property. The property is zoned R-3,and is not within the Lake Cochichewick Watershed 5. Address of Property Being Affected: Rea Farm—Rea Street,North Andover Zoning District: Residential Three(R-3) Assessors: Map: 98A/98B` Lot# 7, 105/11.23 Registry of Deeds: Book# 4711/2868 Page# 117,118/171 6. Existing Lot: Lot Area(Sq.Ft) 32.94 Acres+/- Building Height: 35'+/- Street Frontage: 1600'+/- Side Setbacks: 165'+/- Front Setback: 1' Rear Setback: 330'+/- Floor Area Ratio: N/A Lot Coverage: N/A 7. Proposed Lot(d applicable): Lot Area(Sq.Ft) 12,500 sf(min.) Building Height 30'/2.5 stories Street Frontage: 100'min. Side Setbacks: 20'min. Front Setback: 20'min Rear Setback: 20'min Floor Area Ratio: N/A Lot Coverage: N/A & Required Lot(as required by Zoning Bylaw): i le opuy io ssy Jo 8 �fl P99M CrttiRed by Dale j Board of Asseseor North Andover ( I jen Zo I I Iz • I I I • I I I I � i I ! 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I ZS (A �•�' rd tl, I Crtified by 6 d of Assew North Andover Offified by Date Boa of Asse or a 6� rth Andover ( I HP Fax K1220xi Log for NORTH ANDOVER 9786889542 Jul 22 2005 8:59am Last 30 Transactions Date Time Toe Identification Duration Pales Result Jul 20 8:07am Received 978 682 3113 4:13 4 Error 282 Jul 20 8:22am Fax Sent 557 0:30 2 OK Jul 20 9:22am Received 978 975 4363 0:31 1 OK Jul 20 9:47am Fax Sent 89784754340 0:43 2 OK Jul 20 10:23am Fax Sent 89784703670 0:34 2 OK Jul 20 10:25am Fax Sent 819783923333 0:31 2 OK Jul 20 11:29am Fax Sent 819787942088 0:52 2 OK Jul 20 1:38pm Received Rush Kent Insurance 1:03 2 OK Jul 20 3:13pm Fax Sent 819786818333 3:32 8 OK Jul 20 3:24pm Fax Sent 816036590418 3:10 8 OK Jul 20 3:46pm Fax Sent 819784750524 0:43 0 Cancel Jul 20 3:48pm Fax Sent 816034872298 8:40 13 OK Jul 20 4:lOpm Received 9784756703 0:55 3 OK Jul 20 5:58pm Fax Sent 89786823113 1:00 4 OK Jul 21 7:24am Received 9786851099 0:34 2 OK Jul 21 10:02am Fax Sent 819784750524 3:17 13 OK Jul 21 10:33am Received 612 904 7314 0:30 3 OK Jul 21 11:17am Received 7819388050 1:07 2 OK Jul 21 12:32pm Received 0:51 1 OK Jul 21 12:37pm Fax Sent 573• 0:28 1 OK Jul 21 12:51pm Fax Sent 819785328410 0:51 3 OK Jul 21 1:02pm Fax Sent 573 0:26 1 OK Jul 21 1:07pm Fax Sent 817812455869 0:53 2 OK Jul 21 1:20pm Received 0:51 1 OK Jul 21 4:O1pm Received +603 382 3492 0:46 2 OK Jul 22 2:37am Received 7` 0:57 1 OK Jul 22 8:OOam Received 978 557 8633 0:44 1 OK Jul 22 8:45am Fax Sent 815082335573--) 3:12 9 OK Jul 22 8:49am Fax Sent 815082335573 5:26 9 OK Jul 22 8:55am Fax Sent 815082335573 �+ 3:28 9 OK M�;* Town of North Andover Town Clerk Time Stamp Community Development and Services Division Office of the Zoning Board of Appeals AC itA' 400 Osgood Street JAC,p�f North Andover,Nlassaihusetts 01845 RaNmond Santilli, Interim Community Telephone (9 7 8)688`)541 0 —t Development Director Fax (978)688-9542 =_ = "� rn Any appeal shall be filed within Notice of Decision v'�a in .-� (20)days after the date of filing Year 2005 rn 2 w < of this notice in the office of the c 3y bo -v cern Town Clerk,per Mass.Gen. L.ch. 40A, §17. Property at: 300 Chestnut Street ". �• - ; -;t NAME: Cingular Wireless LLC,580 Main Street, HEARING(S): February 8,April 12,May 12, Bolton,MA 01740 June 14,July 12,&August 9,2005 ADDRESS: for premises at: 300 Chestnut Street PETITION: 2005-001 North Andover,MA 01845 TYPING DATE: August 11,2005 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,August 9,2005 at 7:30 PM in the Town Hall top floor meeting room, 120 Main Street,North Andover,Massachusetts upon the application of Cingular Wireless LLC,580 Main Street,Bolton,MA 01740,for premises at:300 Chestnut Street, North Andover,requesting a dimensional Variance from Section 8,Paragraph 8.9(3)(c)(v)of the Zoning Bylaw, minimum requirements of the distance to lot lines,in order to install additional antennas on the existing antenna tower. Said premise affected is property with frontage on the East side of Chestnut Street within the R-3 zoning district. The legal notices were published in the Eagle Tribune on January 24&January 31,2005. 1 The following voting members were present: Ellen P.McIntyre,Richard J.Byers,Thomas D.Ippolito,and Richard M.Vaillancourt. The following non-voting members were present: Joseph D.LaGrasse and David R. Webster. Upon a motion by Richard J.Byers and 2°d by Richard M.Vaillancourt,the Board voted to grant the dimensional Variance from Section 8,Paragraph 8.9(3xc)(v),minimum requirements of the distance to the lot lines in order to install additional antennas on the existing antenna tower. Voting in favor of the motion: Ellen P.McIntyre and Richard J.Byers. Voting to deny the motion: Thomas D. Ippolito and Richard M. Vaillancourt. The Board finds that the motion for the Variance petition failed to receive the required super majority of four votes, per Mass.Gen. L ch.40A§15. The Board finds that the applicant was requested to address the issue of hardship in general as well as hardship as it pertains to soil,shape,and topography during the April 12,2005 hearing. The applicant provided the May 6,2005 written response and the May 12,2005 verbal response during the hearing to the issue of hardship as it pertains to gap coverage,but not to soil,shape and topography. The Board finds that owing to circumstances relating to the soil conditions,shape,or topography of the land or structures,and especially affecting such land but not affecting generally the zoning district in which it is located,a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship, financial or otherwise,to the petitioner,that desirable relief may not be granted without substantial detriment to the public good,and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of this Bylaw as stated in Section 1 and Section 10,Paragraph 10.4. Town of North Andover Board of Appeals, Ellen P.McIntyre,Chair Decision2005-001. M98.CP2. Board of:kppeals 978-688-9541 Building 978-688-9545 Consen ation 978-688-9530 Health 978-688-9540 Planning 9 78-688-9515 ANDERSON KREIGER LLP r O W k 5-K E°I N c E 2005 SEP 12 PM 1: 32 DOUGLAS H.WILKINS T U' OF divilkinsC,Iaiidersonkreiger.com NORTH App+ L MASSACHLIS September 12, 2005 BY HAND Town Clerk 120 Main Street North Andover, MA 01845 NOTICE OF APPEAL: 1. Cingular Wireless PCS LLC v. Town of North Andover, Massachusetts, Board of Appeals of the Town of North Andover, et al. (U.S. District Court, D. Mass.), and 2. Cingular Wireless PCS LLC v. Town of North Andover Massachusetts, Board of Appeals of the Town of North Andover, et al. (Essex Superior Court) RE: Applicant: Cingular Wireless PCS LLC Site: 300 Chestnut Street,North Andover, Massachusetts (also known as 0 Chestnut Street, Assessors Map 98.C, Lot 2) Owner: SBA Towers, Inc. Facility: Wireless Communication Facilities on and next to an existing lattice tower Relief Sought: Variance (M.G.L. c. 40A, § 10, and Bylaw Section 8, paragraph 8.9(3)(c)(v)); and any other Zoning Relief as necessary including, without limitation, additional variance or special permit relief. Dear Sir or Madam: Pursuant to Section 704 of the Telecommunications Act of 1996, Pub. L. No. 104-104 ("the Telecommunications Act"), codified at Section 332(c)(7) of the Communications Act of 1934, 47 U.S.C. §§ 151-691, and General Laws Chapter 40A, Section 17, you are hereby notified that the plaintiff in the above actions (Cingular Wireless, PCS LLC) has appealed from the denial by the North Andover Board of Appeals of its application for a variance and other relief related to a proposed wireless communication facility at the property located at 300 Chestnut Street, North Andover, Massachusetts (also known as 0 Chestnut Street, Assessors Map 98.C, Lot 2). G u �� � SEP 13 2005 BOARD 0r pPPEPL Thorndike Street • Cambridge, MA 02141-1764 • (617) 252-6576 • Fax: (617) 252-6899 C> Printed-,C,yc d p,j— .r Town Clerk - Town of North Andover September 12, 2005 Page 2 A copy of the Complaint filed today in Federal District Court is attached to this Notice as Exhibit 1. A copy of the backup Complaint, which was filed in the Essex Superior Court today, is attached to this Notice as Exhibit 2. Please date stamp a copy of this letter and return it to our messenger. Thank you. Since ly o" 1 H. ins Enclosures Cin/maNandoverChestnut\l\townclerkNotice.wpd ANDERSON&I(REIGERLLP 0 I'nwai un papa q U t. ��.l;'I( �..�..1.t 111 v 4s`•iV� 1005 SEP 12 PSS 1: 32 UNITED STATES DISTRICT COURT TOWN Or DISTRICT OF MASSACHUSETTS N0RTrl AN-`0Vr'--? MiASSAG; Civil Action No. 05CV NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) TOWN OF NORTH ANDOVER, MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN McINTYRE,RICHARD J. BYERS, ) ALBERT P. MANZI III, JOSEPH D. LaGRASSE, - DAVID R. WEBSTER, DANIEL S. BRAESE, •cs11 Kit^ 0 THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT,) " as they are members and associate members of the Board, ) Defendants. ) COMPLAINT 1. New Cingular Wireless PCS LLC ("Cingular") appeals under both federal and state law from the North Andover Board of Appeals' ("Board")denial, by a 2—2 vote, of Cingular's application for a variance for a proposed wireless communication facility. The proposed facility would be on an existing, guyed, orange-and-white-striped lattice communications tower at 300 Chestnut Street,North Andover, MA(also known as 0 Chestnut Street, Assessors Map 98C, Lot 2) ("Site"). The proposed facility would cover over 1.2 square miles of an undisputed gap in coverage on a major road and surrounding neighborhoods. Attached hereto as Exhibit A is a certified copy of the Board's Decision filed with the North Andover Town Clerk on August 23, 2005. 2. Cingular seeks relief pursuant to Section 704 of the Telecommunications Act of 1996, Pub. L. No. 104-104("the Telecommunications Act"), codified at Section 332(c)(7) of the SEP 13 2005 BOARD OF APPEALS r � Communications Act of 1934, 47 U.S.C. §§ 151-691, and the Massachusetts Zoning Act, M.G.L. c. 40A, § 17. 3. Cingular also seeks declarations invalidating Section 8, paragraph 8.9(3)(c)(v) of the North Andover Zoning Bylaw("Bylaw") (600' minimum distance to lot line), on its face and as applied to the proposed installation of Cingular antennas, equipment and structures on and next to the existing tower. 4. Cingular also seeks a declaration that the annual radio frequency monitoring provisions of Section 8.9(8)(a) of the Bylaw are preempted by FCC jurisdiction and therefore invalid. JURISDICTION 5. This Court has subject matter jurisdiction over this action pursuant to (a) Section 332(c)(7)(B)(5) of the Telecommunications Act because Cingular has been adversely affected and aggrieved by the Board of Appeals' denial of its application, and(b) 28 U.S.C. § 1331 because this action presents a federal question under the Telecommunications Act. This action appropriately may be brought pursuant to the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (the Declaratory Judgment statute)because an actual controversy exists. The Court has supplemental jurisdiction over the Massachusetts state law claims pursuant to 28 U.S.C. § 1367. 6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391, because Cingular's claims arose in this judicial district. THE PARTIES 7. Cingular is a limited liability company qualified to do business in Massachusetts, with a business address of 580 Main Street, Bolton, Massachusetts 01740. Cingular is licensed 2 r � by the Federal Communications Commission("FCC") to provide personal wireless service in areas that include North Andover, Massachusetts. 8. The Defendant Town of North Andover("the Town") is a duly constituted municipality in Essex County,Massachusetts,with its principal office located at the Municipal Building, 120 Main Street,North Andover,MA 01845. 9. The Defendant Board is a duly constituted board of the Town with an office located at the Municipal Building, 120 Main Street,North Andover, MA 01845. 10. The Defendant Ellen P. McIntyre, is the Chair and a member of the Board. She resides at 23 Tanglewood Lane,North Andover, MA 01845. 11. The Defendant Thomas D. Ippolito an associate member of the Board. He resides at 338 Abbott Street,North Andover, MA 01845. 12. The Defendant Richard M. Vaillancourt is an associate member of the Board. He resides at 454 Stevens Street,North Andover, MA 01845. 13. The Defendant Richard J. Byers is Clerk and a member of the Board. He resides at 97 Forest Street, North Andover, MA 01845. 14. The Defendant Joseph D. LaGrasse is Vice-Chair and a member of the Board. He resides at 40 Sugarcane Lane,North Andover MA 01845. 15. The Defendant David R. Webster is a member of the Board. He resides at 707 Waverly Road, North Andover, MA 01845. 16. The Defendant Albert P. Manzi, III, is a member of the Board. He resides at 1028 Salem Street,North Andover, MA 01845. 17. The Defendant Daniel S. Braese is a member of the Board. He resides at 21 Periwinkle Way,North Andover, MA 01845. 3 18. Defendant Board members Thomas D. Ippolito, Richard M. Vailancourt, Ellen McIntyre and Richard Byers rendered the decision at issue in this case. 19. Messrs. Ippolito and Vailancourt voted against the requested variance, resulting in a denial of the application pursuant to Mass. Gen. Laws c. 40A, § 15. THE TELECOMMUNICATIONS ACT OF 1996 20. Congress has determined that there is a public need for wireless communications services such as that provided by Cingular. The Telecommunications Act was intended to "provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies to all Americans". 21. The Telecommunications Act,while preserving certain State and local authority over the placement, construction or modification of wireless facilities, expressly preempts State or local governments from regulating such facilities in a manner that prohibits or has the effect of prohibiting the provision of personal wireless services, or from unreasonably discriminating among providers of functionally equivalent wireless services. It requires that the decisions of State or local governments concerning any requests for authorization to place, construct or modify wireless facilities must be supported by"substantial evidence." 22. The Telecommunications Act further prohibits State or local governments from regulating the placement or construction of wireless service facilities on the basis of perceived environmental or health effects of radio frequency emissions to the extent that such facilities comply with standards promulgated by the FCC. THE SITE 23. The Site contains an existing, 152 foot tall lattice tower, supported by guy wires, 4 owned by SBA Towers, Inc. ("SBA"). The existing tower was permitted in 1958, pursuant to a variance. It is painted orange and white in accordance with FAA regulations. 24. The Site is large (227,996 square feet), topographically higher than the surrounding area, and contains dense woods within which the proposed facilities will be suitably concealed from an aesthetic standpoint. It is within a R-3 District under the North Andover Zoning Bylaw. 25. On June 30, 2000, the North Andover Planning Board issued a special permit, with conditions, to Sprint Spectrum, LP to install and operate a wireless service facility on the existing tower structure at 300 Chestnut Street. Among other things, the Planning Board found that the Site "is an appropriate location for the project as it is being collocated on an existing wireless location"and that the use "will not adversely affect the neighborhood." CINGULAR'S PROPOSED FACILITY 26. Cingular proposes to attach antennas at an antenna centerline height of 122' on the existing 137'tower. Cingular also proposes to install within the existing fenced compound an approximately 11'x 20'equipment shelter for its ancillary equipment. Coaxial cables will connect the antennas to the base station equipment and the facility will be served by associated power and telephone connections existing at the site. 27. Cingular's proposal will not increase the height of the existing tower or enlarge the existing fenced equipment compound. 28. Currently, there are multiple antennas on the tower including those of Cingular's direct competitor, Sprint Spectrum. 29. The proposed equipment shelter will be concealed to the greatest extent possible by existing trees and vegetation. In addition, the facility will be surrounded by an 8' fence. 5 30. The proposed facility is passive and unobtrusive, requires no employees or customers on the premises, and has no characteristics that are incompatible with nearby properties. It is not located in wetland resource areas or buffer zones, will not include any outdoor storage or any solid waste receptacles, and,because it is unmanned, will not require a means of water supply or sewage disposal. 31. The proposed facility will involve no offensive lighting, odors, smoke, noise, or refuse materials. 32. The proposed facility is consistent with the purpose of North Andover's Wireless Service Facilities Zoning Bylaw Section 8.9.La,because it is designed"to minimize the visual and environmental impacts as well as any potential deleterious impact on property value, of wireless services facilities..."and to "encourage appropriate land use, environmental protection, preservation of North Andover's rural character and the provision of adequate infrastructure development in North Andover." 33. The proposed facility would'not be detrimental to the neighborhood, would be in harmony with the purposes and intent of North Andover's Zoning Bylaw, and would satisfy all of the criteria for the variance requested. THE NORTH ANDOVER ZONING BYLAW 34. Section 8.9 of the North Andover Zoning Bylaws governs wireless service facilities in North Andover. It provides that a wireless service facility may be located in any zoning district in the Town upon issuance of a Special Permit with Site Plan Review by the North Andover Planning Board,provided the carrier demonstrates that the facility is necessary to provide adequate service to the public and the facility satisfies all of the other requirements of the Town's Zoning Bylaw applicable to wireless service facilities (Section 8.9.3.a). 6 35. Section 8.9.3.b provides that wireless service facilities must be located on preexistent structures if feasible unless (a) the applicant can demonstrate to the satisfaction of the Special Permit Granting Authority(the Planning Board) that it is not feasible to locate on a preexistent structure and (b) the wireless service facility is"camouflaged to the greatest extent possible." 36. Sections 8.9(3)(c) and 8(9)(4) of North Andover's Zoning Bylaw set forth numerous dimensional and design requirements applicable to wireless service facilities, and Section 8.9(5)(d) sets forth numerous filing requirements. 37. Section 8.9(3)was amended by the citizen-initiated Article 21 of the 2000 North Andover Town Meeting to amend setback requirements for wireless facilities. The Attorney General approved the Amendment on October 12, 2000. On information and belief, the amendment took effect after Sprint obtained its Special Permit for the Site. 38. Section 8.9(3)(c)(v)(1)provides in relevant part as follows: "A minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain, residential and or educational uses of any types." 39. Section 8.9(3)(c)(v)(2) also provides as follows: "In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preexistent non-conforming structures, wireless service facilities and their equipment shelters shall not increase any non-conformity." NEED FOR ADDITIONAL COVERAGE IN NORTH ANDOVER 40. Cingular currently covers certain portions of western North Andover from several 7 sites. Existing coverage reflects transmissions from the following nearby existing/proposed facilities: ➢ Site MAO 116, Rooftop facility, 224 Winthrop Avenue (Hampton Inn), Lawrence; ➢ Site MA0425, Rooftop facility, 23 Main Street, Andover; ➢ Site MA3045, Co-Location facility on tower on Boston Hill, North Andover; and ➢ Site MA1385, Co-Location facility on tower at Stevens' Estate, 723 Osgood Street,North Andover. 41. Cingular submitted to the Board a radiofrequency("RF")report, with coverage charts, demonstrating(a) the need for the facility at the Site, (b) the coverage it will provide, and (c)the other existing Cingular's facilities in North Andover and outside North Andover within one mile of its boundary. 42. As demonstrated by the submitted coverage maps,without the proposed facility at this Site, Cingular will be unable to provide adequate indoor and in-vehicle coverage—and will therefore continue to have a significant gap in coverage—in this area of North Andover ("Coverage Gap"). 43. Cingular's existing facilities in the towns surrounding North Andover and its two approved facilities in North Andover provide only limited coverage in parts of North Andover. These facilities leave a significant gap in coverage in the area of the Coverage Gap at issue here. 44. To test the existence of a coverage gap, the Board hired(at Cingular's expense) Mark Hutchins, an independent consultant. 45. Mr. Hutchins evaluated coverage in the Coverage Gap and confirmed that there are"significant gaps in Cingular's North Andover coverage, particularly along Salem Turnpike (Route 114) near Andover Bypass, and nearby residential areas to the north and east." He 8 calculated that the proposed facility would"remedy"the gap"over an area just over 1.2 square miles." 46. None of Cingular's existing or approved sites provides or is capable of providing Cingular coverage to the portions of North Andover that would be served by the proposed facility at the Site. Mr. Hutchins concurred: "These gaps are unable to be remedied by the use of existing cells; this justifies a new facility in this area which, through collocation on the SBA tower, enables closing much of the gap without building a new support structure." 47. The Coverage Gap includes high-demand areas in which Cingular currently lacks adequate communications service. 48. The proposed facility would also help to provide a smooth transition with existing sites to which it would provide a coverage link. 49. There is no other suitable preexisting structure in this area of North Andover upon which to locate a wireless service facility. Nor has Cingular identified any superior alternative site that would enable it to provide quality coverage in the Coverage Gap. THE PROCEEDINGS BEFORE THE BOARD 50. On December 2, 2004, Cingular's consultant submitted a Building Permit application to the North Andover Building Department, seeking to collocate antennas on the existing tower at the Site,with equipment in a shelter in the existing compound at the base of the tower. 51. On December 9, 2004, the Building Inspector of North Andover denied the Building Permit, because he ruled that the proposal required both a special permit from the Planning Board and a setback variance from the Zoning Board of Appeals. 52. Therefore, pursuant to G.L. c. 40A, § 10, and Section 10.4 of the North Andover 9 z Zoning Bylaw, Cingular submitted an application to the Board on January 10, 2005, for a variance from the 600' setback provision, section 8.9(3)(c)(v) of North Andover's Wireless Service Facilities Zoning Bylaw. 53. The Board of Appeals initially noticed a public hearing on Plaintiff's application on February 8, 2005, and continued the matter to April 12, May 12, June 14, July 12 and August 9, 2005. 54. During the hearings, Cingular presented its plans, radio frequency analysis, radio frequency maps, a certification by a structural engineer, dated February 17, 2005, of the structural integrity of the existing tower to support the proposed Cingular installation, and proof of compliance with FCC radio frequency emissions regulations. 55. Cingular also presented other material demonstrating that literal compliance with Section 8.9(3)(c)(v)would cause substantial hardship due to the topography and shape of the lot, and due to existing structures on the lot. 56. The lot's unique combination of high terrain, large size and existing tower is not shared by other lots in the district. Indeed,the lot is the only one in the district that would permit coverage to this area of North Andover in compliance with the Bylaw's preference(Section 8.9.3.b) for location of wireless antennas upon existing structures. To deny needed coverage to the Coverage Gap from the Site would cause substantial hardship to Cingular in its FCC-licensed mission to provide coverage, and would cause financial hardship to the tower owner, SBA. 57. The Board did not contest that, as Cingular stated by letter of May 6, 2005, denial of tht variance would"would prevent Cingular from(a)providing effective wireless communications services to its existing and potential customers in North Andover in an area where it currently has inadequate coverage, (b) satisfying the mandate of, and realizing the rights 10 granted by, its federal license and the federal statute and regulations pursuant to which the license was issued, and(c) improving competition in the telecommunications industry as provided for in the Federal Telecommunications Act of 1996 (at least one other wireless communications provider—Sprint—has already been permitted to install a facility on this tower)." 58. Cingular's evidence showed that its proposed facility would comply with the intent and purpose of the bylaw justifying a variance from Section 8.9(3)(c)(v). It would minimize the number of towers in Town by using an existing communications tower,would not materially increase any adverse visual impact of the existing tower, would comply with federal regulations regarding transmissions and exposure to radiofrequency emissions, and would be unobtrusive,requiring after installation only about one trip per month for routine maintenance. 59. Cingular also pointed out that the Board should consider the Telecommunications Act in deciding whether to grant a variance,because, among other things, the"Board cannot deny a variance if in doing so it would have the effect of prohibiting wireless services. ... In other words, the need for closing a significant gap in coverage, in order to avoid an effective prohibition of wireless services, constitutes another unique circumstance when a zoning variance is required." Nextel Communications of the Mid-Atlantic, Inc. v.Town of Wayland, 231 F.Supp. 2d 396, 406-407 (D. Mass. 2002). 60. During the Board's hearings, various citizens voiced objections to the proposed facility including, without limitation, "health issues," that would purportedly result from allowing the proposed FCC-licensed facility to operate, despite the undisputed evidence that radio frequency emissions from the proposed facility would only be a small fraction of the allowed exposure limit under FCC regulations. The total exposure from all antennas on the tower would not exceed 3.7% of FCC-allowed limits, of which Cingular's proposed facility would contribute 11 less than 0.6% of the limits. Mr. Hutchins agreed that"cumulative exposure from the proposed facility is certain to be well below [FCC] guidelines for human exposure to RF radiation as long as tower access is restricted." 61. The Board deliberated on August 9, 2005, after which it voted 2 to 2 on a motion to grant the requested variance. The vote operated as a denial,because Mass. Gen. Laws c. 40A, § 10 requires a supermajority of four votes in these circumstances to approve a variance. 62. On August 23, 2005, the Board filed its Decision with the Town Clerk. 63. In its Decision,the Board cited as justification for its denial only the boilerplate that"a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship, financial or otherwise, to the petitioner, that desirable relief may not be granted without substantial detriment to the public good, and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of the Bylaw. 64. The Board's Decision did not specify any alleged detriment to the public good or any derogation from the intent or purpose of the Bylaw that would result from placement of an additional set of antennas on an existing communications tower already used by Cingular's competitor. 65. Nor did the Board discuss any Telecommunications Act issue, let alone whether Cingular needed the Site to close a substantial gap in coverage within the Coverage Gap, whether denial of this application would effectively prohibit Cingular from providing coverage in the Coverage Gap, or whether denial would unreasonably discriminate against Cingular while its direct competitor enjoys unrestricted use of the tower facility. 66. Neither the generalized concerns expressed in the Board's Decision nor any 12 specific issue mentioned during the deliberations constitutes a valid basis for denying the requested variances. IRREPARABLE HARM 67. By denying Cingular the right to install and operate its essential telecommunications facility, the Board has effectively prohibited Cingular from covering an existing significant gap in coverage within North Andover. 68. By denying Cingular the right to use the Site,while Sprint transmits and receives wireless communications signals from the existing tower on the Site, the Board has harmed Cingular in its efforts to compete with Sprint, and has harmed competition in the wireless communications industry generally. 69. As a result, Cingular has suffered and continues to suffer irreparable harm by being denied and delayed the opportunity to install and operate its facility at Site and by being placed at a competitive disadvantage compared to Sprint, which already operates from the Site. COUNT (Telecommunications Act of 1996- Effective Prohibition) 70. Cingular repeats and realleges the allegations of paragraphs 1-69, above. 71. The Telecommunications Act provides in relevant part that"The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i). 72. The North Andover Zoning Bylaw and the Board's denial of Cingular's application for variances "prohibit[s] or ha[s] the effect of prohibiting the provision of personal wireless services," in those areas of the Town that cannot receive wireless communication 13 coverage if the proposed facility is not constructed, in violation of Section 332(c)(7)(B)(i)(H) of the Act. 73. The existence of a Coverage Gap, and the need to cover that gap from the Site were undisputed and indisputable. 74. Yet, the Decision and section 8.9(c)(v) of the Bylaw prohibit use of the only structure complying with the Bylaw's stated preference to use existing structures, and no other property appears zonable for a wireless facility to cover this Coverage Gap. 75. Indeed, as a matter of mathematics (area=H R), the 600' setback in Bylaw Section 8.9(c)(v)requires a minimum lot size of over 1,130,000 square feet—about 26 acres. Beyond that, any proposed facility would still have to comply with the restrictive provisions of the remainder of the Bylaw. 76. For these and other reasons stated above, the Court should declare that the North Andover Zoning Bylaw and the Board's Decision violate the prohibition of§ 332(c)(7)(B)(i) on its face and as applied. COUNT II (Telecommunications Act of 1996—Unlawful Discrimination) 77. Cingular repeats and realleges the allegations of paragraphs 1-76, above. 78. The Act provides in relevant part that"The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—(I) shall not unreasonably discriminate among providers of functionally equivalent services." 47 U.S.C. § 332(c)(7)(13)(i). 79. The Bylaw and the Decision of the Board violate this prohibition. 80. Without limitation, the Board's denial of Cingular's application to collocate on an 14 existing tower on which Sprint Spectrum already operates a wireless communication facility "unreasonably discriminate[s] among providers of functionally equivalent services", in violation of Section 332(c)(7)(B)(i)(1) of the Act. COUNT III (Telecommunications Act of 1996-No Substantial Evidence for Denial) 81. Cingular repeats and realleges the allegations of paragraphs 1- 80, above. 82. The Telecommunications Act provides that"Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). 83. The Board's denial of Cingular's application is not supported by substantial evidence, in violation of this requirement. 84. Without limitation,there was no substantial evidence refuting the existence of a substantial gap in coverage, the ability of the proposed site to cover more than 1.2 acres of the Coverage Gap, the absence of any other existing structure that could cover the Coverage Gap, the absence of any other zonable alternative, the lack of detriment to the neighborhood, the unique characteristics of the Site and existing tower structure, or the proposal's conformity to the purposes of the North Andover Zoning Bylaw. 85. Moreover, the Board's failure even to consider the requirements of the Telecommunications Act left it without any findings or evidence that would warrant denial of a variance. COUNT IV (Telecommunications Act of 1996-Improper Basis) 86. Cingular repeats and realleges the allegations of paragraphs 1-85, above. 15 87. The Telecommunications Act provides in relevant part that"No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the bases of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations, concerning such emissions." 47 U.S.C. § 332(c)(7)(B)(iv). The proposed installation fully complies with those regulations. The term "environmental effects" as used in this section includes health effects. 88. The Board's denial of the variances requested by Cingular on the basis of a 600' setback in a zoning bylaw, which was adopted at the behest of citizens of the Town based upon perceived health effects, as reinforced by public comments at the hearings expressly invoking alleged health effects of an FCC-compliant facility, violates this requirement. COUNT V (M.G.L. c. 40A, Section 17) 89. Cingular repeats and realleges the allegations of paragraphs 1-88, above. 90. The Board's denial of Cingular's application is arbitrary and capricious, exceeds the Board's authority under Massachusetts General Laws Chapter 40A, lacks sufficient findings and is based on errors of law. COUNT VI (State Law: Unconstitutional As-Applied) 91. Cingular repeats and realleges the allegations of paragraphs 1-90 above. 92. Under the Massachusetts Constitution, a zoning bylaw, though valid generally, may be unconstitutional as applied to a particular parcel of land when, due to the peculiarities of the parcel, application of the by-law is unnecessary to accomplish the public purpose for which the by-law was created. 16 93. Here, the Site has a glaring"peculiarity"—an existing telecommunications tower already serving a wireless carrier and numerous other broadcasters. 94. Because of the existing tower and lawful communication uses at the Site, there is no public purpose served by prohibiting another wireless carrier from mounting a facility on and next to the existing tower, on the supposed ground that 600' of separation is required between wireless facilities and a residential lot line, as Section 8.9.(3)(c)(v)purports to do. COUNT VII (Declaratory Judgment) 95. Cingular repeats and realleges the allegations of paragraphs 1-94, above. 96. Sections 8.9.(3)(c)(v)of the Zoning Bylaw (600' setback from a residential property line) is unlawful and invalid as applied to this application and on its face. 97. Without limitation,that provision(a)violates the Telecommunications Act of 1996, as set forth in Counts I through IV, (b) serves no valid public purpose (and is therefore unconstitutional under state and federal law) as applied to additional attachments to an existing telecommunications tower, (c) is void for vagueness in general and/or as applied here, and(d) conflicts with the uniformity requirement of G.L. c. 40A, section 4 ("Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted"). 98. Because Section 8.9.(3)(c)(v)has no purpose beyond effectuating supposed health- based objections to the environmental emissions of a facility that complies with FCC radiofrequency emissions regulations, it is preempted by federal law on its face and as applied. COUNT VIII (Declaratory Judgment—Preemption Of RFR Monitoring by FCC Jurisdiction) 99. Cingular repeats and realleges the allegations of paragraphs 1 —98 above. 17 100. Section 8.9(8)(a) of the North Andover Bylaw purports to regulate radio frequency emissions from federally licensed wireless telecommunications facilities by requiring"RFR [radiofrequency radiation] measurements . . . at annual intervals from the date of issuance of the Special Permit." 10.1 This regulation purports to apply not only to the Site,but to all existing sites of all wireless carriers. 102. Through this section, the Town of North Andover purports to regulate a field that Congress has reserved exclusively to the FCC. 103. In the Communications Act of 1934, Congress granted the field of regulating radio frequency transmissions exclusively to the FCC. See, e.g. 47 U.S.C. §§ 152(a), 301. 104. The Communications Amendments Act of 1982 confirmed and strengthened the FCC's federal authority over radio frequency emissions. See 47 U.S.C. § 302(a). H.R. Conff, Rep. No. 97-765, at 23, 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2261, 2267, 2277. 105. Pursuant to its statutory authority, the FCC has promulgated regulations setting forth both exposure limits for RF emissions and specific mechanisms for enforcing those exposure limits. In doing so, it has expressly refrained from imposing unnecessary and burdensome requirements upon carriers, consistent with Congress' intention to make competitive, cost-effective communications services available to all Americans. 106. The FCC has promulgated RF exposure limits in 47 CFR 1.1310. According to Table 1 in that regulation, the exposure limit in the 1900 MhZ band, one of the bands in which Cingular operates, is 1 milliwatt(1,000 microwatts)per square centimeter-many times greater than the actual maximum exposure at ground level from Cingular's facilities in North Andover. 18 The MPE limits are calculated assuming the maximum power density with all channels operating at their maximum power. 107. The FCC also expressly regulates when a routine compliance evaluation regarding these limits is and is not required: "A determination of compliance with the exposure limits in Sec. 1.13 10 or Sec. 2.1093 of this chapter(routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in table 1, or those specified in paragraph (b)(2) of this section. All other facilities, operations and transmitters are categorically excluded from making such studies or preparing an EA, except as indicated in paragraphs (c) and (d) of this section [relating to environmental assessments ("EA"),not to routine evaluation]." 47 C.F.R. 1.1307(b)(1) (emphasis added). 108. The applicable table in 47 C.F.R. 1.1307(b) shows that PCS facilities are categorically excluded from routine evaluation as long as they are 10 meters (approximately 32.8 feet) above ground: Table 1 -Transmitters,Facilities and Operations Subject to Routine Environmental Evaluation Service(title 47 CFR rule part) Evaluation required if: Personal Communications Services . . . (2)Broadband PCS(subpart E): non-building- (part 24) mounted antennas:height above ground level to lowest point of antenna, 10m and total power of all channels =2000 W ERP(3280 W EIRP) . . . 109. All of Cingular's non-building mounted antennas in North Andover(including the Site) are much more than 10 meters AGL. 110. Carriers on a multi-carrier telecommunications tower(like the Site) only have responsibility for correcting any excessive RF emissions from the entire tower if their power 19 density levels contribute 5%or more of the exposure limit applicable to the tower. 47 C.F.R. 1.1307(b)(3). 111. Based upon worst-case calculations at the Site, Cingular would contribute less than or equal to 0.6% of the total exposure limit. 112. The purpose of the FCC RF evaluation regulations is "to provide a proper balance between the need to protect the public and workers from exposure to excessive RF electromagnetic fields and the need to allow communications services to readily address growing marketplace demands." 62 Fed. Reg. 47960, 47961 (9/12/97). 113, "Use of the new guidelines will ensure that the public and workers receive adequate protection from exposure to potentially harmful RF electromagnetic fields." Id. at 47962. 114. Local zoning provisions having the "intent and effect ... to regulate the operations - not the placement, construction and modification- of licensed facilities" are preempted because they focus on"radio frequency regulation rather than local land use concerns" (In Re Cingular Wireless, L.L.C, 2003 WL 21517835, FCC Docket No. 02-100 (July 7, 2003) at page 10-11). 115. Nor are preempted local regulations saved by the claim that the local government is attempting to "assure itself that a carrier is complying with FCC standards" where the regulation is "effectively regulating federally licensed operation" as opposed to "traditional zoning regulation of the physical facility." Id. 116. The annual RFR measurement requirement of North Andover Bylaw Section 8.9(8) is therefore preempted in its entirety. WHEREFORE, Cingular requests that this Court enter judgment: 1. Declaring that the North Andover Bylaw and the Board's Decision violate the 20 Telecommunication Act of 1996; 2. Granting temporary,preliminary, and permanent injunctive relief ordering that Cingular be permitted immediately to install its proposed facility in accordance with its application and plans therefor; 3. Annulling the portion of the Board's Decision denying Cingular's application for variances; 4. Declaring that Section 8.9.(3)(c)(v)of the Zoning Bylaw(600' setback from a residential lot line)is unlawful and invalid as applied and on its face; 5. Declaring that Section 8.9(8)(a) is preempted and invalid as applied to facilities exempt from annual review under FCC regulations. 6. Ordering the Board to issue the requested variances and all other zoning relief necessary for the proposed facility; 7. Awarding Cingular reasonable attorneys' fees and costs; and 8. Awarding Cingular such other and further relief as the Court deems just and proper. The Plaintiff By its atto s, ep nAnderson(BBO#018700) o las%1. Wilkins (BBO#528000) Stott Lacy(BBO#633323) ANDERSON&KREIGER LLP 43 Thorndike Street Cambridge, MA 02141 (617)252-6575 Dated: September 12, 2005 g:\docs\cin\ma\northandoverchestnut\p\fed-complaintO l.doc 21 Town of North Andover Town Qerk Time Stamp Community Development and Services Division #, E; Office of the Zoning Board of Appeals 400 Osgood Street North Andover, Massachusetts 01845 Raymond Santilli' Telephone (978)688-9541 G' , -'a Interim Community Fax (978)688-9542 Development Director Qn Any appeal shall be filed within Notice of Decision y 0 r''t (20)days after the date of filing Year 2005s'� of this notice in the office of the Town Clerk,per Mass.Gen.L.ch. r � 40A,§17. Property at: 300 Chestnut Street C'3 r�. NAME: Cingular Wireless LLC,580 Main Street, HEARING(S): February ,April 12,May 12, Bolton,MA 01740 June 14,July 12,& August 9,2005 ADDRESS: for premises at: 300 Chestnut Street PETMON: 2005-001 North Andover,MA 01845 TYPING DATE: August 11,2005 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,August 9,2005 at 7:30 PM in the Town Hall top floor meeting room, 120 Main Street,North Andover,Massachusetts upon the application of Cingalar Wireless LLC,580 Main Street,Bolton,MA 01740,for premises at:300 Chestnut Street, North Andover,requesting a dimensional Variance from Section 8,Paragraph 8.9(3)(cxv)of the Zoning Bylaw, minimum requirements of tho distance to lot lines,in order to install additional antennas on the existing antenna tower. Said premise affected is property with frontage on the East side of Chestnut Street within the R-3 zoning district. The legal notices were published in the Eagle Tribune on January 24&January 31,2005. The following voting members were present: Ellen P.McIntyre,Richard J.Byers,Thomas D. Ippolito,and Richard M.Vaillancourt. The following non-voting members were present: Joseph D.LaGrasse and David R. Webster. Upon a motion by Richard J.Byers and 2nd by Richard M. Vaillancourt,the Board voted to grant the dimensional Variance from Section 8,Paragraph 8.9(3)(c)(v),minimum requirements of the distance to the lot limes in order to install additional antennas on the existing antenna tower. Voting in favor of the motion: Ellen P.McIntyre and Richard J.Byers. Voting to deny the motion: Thomas D. Ippolito and Richard M.Vaillancourt. The Board finds that the motion for the Variance petition failed to receive the required super majority of four votes, per Mass.Gen.L ch.40A§15. The Board finds that the applicant was requested to address the issue of hardship in general as well as hardship as it pertains to soil,shape,and topography during.the April 12,2005 hearing. The applicant provided the May 6,2005 written response and the May 12,2005 verbal response during the hearing to the issue of hardship as it pertains to gap coverage,but not to soil,shape and topography. The Board fords that owing to circumstances relating to the soil conditions,shape,or topography of the land or structures,and especially affecting such land but not affecting generally the zoning district in which it is located,a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship,financial or otherwise,to the petitioner,that desirable relief may not be granted without substantial detriment to the public good,and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of this Bylaw as stated in Section 1 and Section 10,Paragraph 10.4. Town of North Andover Board of Appeals, ATTEST: A True Copy a Ellen P.McIntyre,Chair Town Clerk Decision2005-001. M98.CP2. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 pECEIVEO T C W N CL=FX'S Cr FlCC 2005 SEP 12 Phi 1: 32 TOWN OF NORTH AhGCVF,,; MASSAC#iLS Ir-'t' :� t a co FrCEIVED TFi G+-ERK a Cirr COMMOWEALTH OF MASSACHUSETTS EsselpP.SEP 12 PM (: 32 Superior Court TOWS t; Civil Action No. NORIH A1i00"," MASSACHUS::.' s ) NEW CINGULAR WIRELESS PCS LLC, Plaintiff, ) V. ) FOR THE COUNTY OF ESSEX SEP 12 2005 TOWN OF NORTH ANDOVER,MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) C" ;�.v� ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ) Y CLERK ALBERT P. MANZI III, JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIEL S. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT,) as they are members and associate members of the Board, ) Defendants. ) COMPLAINT 1. New Cingular Wireless PCS LLC ("Cingular") appeals under G.L. c. 40A, § 17, from the North Andover Board of Appeals' ("Board") denial,by a 2—2 vote, of Cingular's application for a variance for a proposed wireless communication facility. The proposed facility would be on an existing, guyed, orange-and-white-striped lattice communications tower at 300 Chestnut Street,North Andover, MA (also known as 0 Chestnut Street, Assessors Map 98C, Lot 2) ("Site").' The proposed facility would cover over 1.2 square miles of an undisputed gap in coverage on a major road and surrounding neighborhoods. Attached hereto as Exhibit A is a certified copy of the Board's Decision filed with the North Andover Town Clerk on August 23, 2005. This complaint is intended as a back-up to a federal court complaint between the same parties, filed earlier on the same day, in the event that the Federal Court determines that it lacks jurisdiction over the state law claims stated in that complaint. The plaintiffs intention is to proceed entirely in Federal Court unless and until any jurisdictional D (�• N 4if�i urtyth the state law claims appears. SEP 13 2005 BOARD OP APPEALS t 2. Cingular also seeks declarations invalidating Section 8,paragraph 8.9(3)(c)(v)of the North Andover Zoning Bylaw("Bylaw")(600' minimum distance to lot line), on its face and as applied to the proposed installation of Cingular antennas, equipment and structures on and next to the existing tower. THE PARTIES 3. Cingular is a limited liability company qualified to do business in Massachusetts, with a business address of 580 Main Street, Bolton,Massachusetts 01740. Cingular is licensed by the Federal Communications Commission ("FCC")to provide personal wireless service in areas that include North Andover, Massachusetts. 4. The Defendant Town of North Andover("the Town") is a duly constituted municipality in Essex County, Massachusetts, with its principal office located at the Municipal Building, 120 Main Street,North Andover, MA 01845. 5. The Defendant Board is a duly constituted board of the Town with an office located at the Municipal Building, 120 Main Street,North Andover,MA 01845. 6. The Defendant Ellen P. McIntyre, is the Chair and a member of the Board. She resides at 23 Tanglewood Lane,North Andover, MA 01845. 7. The Defendant Thomas D. Ippolito an associate member of the Board. He resides at 338 Abbott Street,North Andover,MA 01845. 8. The Defendant Richard M. Vaillancourt is an associate member of the Board. He resides at 454 Stevens Street,North Andover, MA 01845. 9. The Defendant Richard J. Byers is Clerk and a member of the Board. He resides at 97 Forest Street,North Andover,MA 01845. 2 3 10. The Defendant Joseph D. LaGrasse is Vice-Chair and a member of the Board. He resides at 40 Sugarcane Lane,North Andover MA 01845. 11. The Defendant David R. Webster is a member of the Board. He resides at 707 Waverly Road, North Andover, MA 01845. 12. The Defendant Albert P. Manzi, III, is a member of the Board. He resides at 1028 Salem Street, North Andover,MA 01845. 13. The Defendant Daniel S. Braese is a member of the Board. He resides at 21 Periwinkle Way,North Andover, MA 01845. 14. Defendant Board members Thomas D. Ippolito, Richard M. Vailancourt, Ellen McIntyre and Richard Byers rendered the decision at issue in this case. 15. Messrs. Ippolito and Vailancourt voted against the requested variance, resulting in a denial of the application pursuant to Mass. Gen. Laws c. 40A, § 15. THE SITE 16. The Site contains an existing, 152 foot tall lattice tower, supported by guy wires, owned by SBA Towers, Inc. ("SBA"). The existing tower was permitted in 1958,pursuant to a variance. It is painted orange and white in accordance with FAA regulations. 17. The Site is large (227,996 square feet), topographically higher than the surrounding area, and contains dense woods within which the proposed facilities will be suitably concealed from an aesthetic standpoint. It is within a R-3 District under the North Andover Zoning Bylaw. 18. On June 30, 2000,the North Andover Planning Board issued a special permit, with conditions, to Sprint Spectrum, LP to install and operate a wireless service facility on the existing tower structure at 300 Chestnut Street. Among other things, the Planning Board found that the 3 Site"is an appropriate location for the project as it is being collocated on an existing wireless location"and that the use "will not adversely affect the neighborhood." CINGULAR'S PROPOSED FACILITY 19. Cingular proposes to attach antennas at an antenna centerline height of 122' on the existing 137'tower. Cingular also proposes to install within the existing fenced compound an approximately 11'x 20' equipment shelter for its ancillary equipment. Coaxial cables will connect the antennas to the base station equipment and the facility will be served by associated power and telephone connections existing at the site. 20. Cingular's proposal will not increase the height of the existing tower or enlarge the existing fenced equipment compound. 21. Currently, there are multiple antennas on the tower including those of Cingular's direct competitor, Sprint Spectrum. 22. The proposed equipment shelter will be concealed to the greatest extent possible by existing trees and vegetation. In addition, the facility will be surrounded by an 8' fence. 23. The proposed facility is passive and unobtrusive,requires no employees or customers on the premises, and has no characteristics that are incompatible with nearby properties. It is not located in wetland resource areas or buffer zones,will not include any outdoor storage or any solid waste receptacles, and,because it is unmanned, will not require a means of water supply or sewage disposal. 24. The proposed facility will involve no offensive lighting, odors, smoke, noise, or refuse materials. 25. The proposed facility is consistent with the purpose of North Andover's Wireless Service Facilities Zoning Bylaw Section 8.9.La, because it is,designed"to minimize the visual 4 and environmental impacts as well as any potential deleterious impact on property value, of wireless services facilities..."and to "encourage appropriate land use, environmental protection, preservation of North Andover's rural character and the provision of adequate infrastructure development in North Andover." 26. The proposed facility would not be detrimental to the neighborhood,would be in harmony with the purposes and intent of North Andover's Zoning Bylaw, and would satisfy all of the criteria for the variance requested. THE NORTH ANDOVER ZONING BYLAW 27. Section 8.9 of the North Andover Zoning Bylaws governs wireless service facilities in North Andover. It provides that a wireless service facility may be located in any zoning district in the Town upon issuance of a Special Permit with Site Plan Review by the North Andover Planning Board, provided the carrier demonstrates that the facility is necessary to provide adequate service to the public and the facility satisfies all of the other requirements of the Town's Zoning Bylaw applicable to wireless service facilities(Section 8.9.3.a). 28. Section 8.9.3.b provides that wireless service facilities must be located on preexistent structures if feasible unless (a) the applicant can demonstrate to the satisfaction of the Special Permit Granting Authority(the Planning Board) that it is not feasible to locate on a preexistent structure and (b) the wireless service facility is "camouflaged to the greatest extent possible." 29. Sections 8.9(3)(c)and 8(9)(4)of North Andover's Zoning Bylaw set forth numerous dimensional and design requirements applicable to wireless service facilities, and Section 8.9(5)(d) sets forth numerous filing requirements. 5 30. Section 8.9(3)was amended by the citizen-initiated Article 21 of the 2000 North Andover Town Meeting to amend setback requirements for wireless facilities. The Attorney General approved the Amendment on October 12, 2000. On information and belief, the amendment took effect after Sprint obtained its Special Permit for the Site. 31. Section 8.9(3)(c)(v)(1)provides in relevant part as follows: "A minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain,residential and or educational uses of any types." 32. Section 8.9(3)(c)(v)(2) also provides as follows: "In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preexistent non-conforming structures, wireless service facilities and their equipment shelters shall not increase any non-conformity." NEED FOR ADDITIONAL COVERAGE IN NORTH ANDOVER 33. Cingular currently covers certain portions of western North Andover from several sites. Existing coverage reflects transmissions from the following nearby existing/proposed facilities: ➢ Site MAOI 16, Rooftop facility, 224 Winthrop Avenue (Hampton Inn), Lawrence; ➢ Site MA0425, Rooftop facility, 23 Main Street, Andover; ➢ Site MA3045, Co-Location facility on tower on Boston Hill,North Andover; and ➢ Site MAI 385, Co-Location facility on tower at Stevens' Estate, 723 Osgood Street, North Andover. 6 34. Cingular submitted to the Board a radiofrequency("RF")report,with coverage charts, demonstrating (a) the need for the facility at the Site, (b) the coverage it will provide, and (c)the other existing Cingular's facilities in North Andover and outside North Andover within . one mile of its boundary. 35. As demonstrated by the submitted coverage maps,without the proposed facility at this Site, Cingular will be unable to provide adequate indoor and in-vehicle coverage—and will therefore continue to have a significant gap in coverage—in this area of North Andover ("Coverage Gap"). 36. Cingular's existing facilities in the towns surrounding North Andover and its two approved facilities in North Andover provide only limited coverage in parts of North Andover. These facilities leave a significant gap in coverage in the area of the Coverage Gap at issue here. 37. To test the existence of a coverage gap, the Board hired(at Cingular's expense) Mark Hutchins, an independent consultant. 38. Mr. Hutchins evaluated coverage in the Coverage Gap and confirmed that there are"significant gaps in Cingular's North Andover coverage,particularly along Salem Turnpike (Route 114)near Andover Bypass,.and nearby residential areas to the north and east." He calculated that the proposed facility would"remedy"the gap "over an area just over 1.2 square miles." 39. None of Cingular's existing or approved sites provides or is capable of providing Cingular coverage to the portions of North Andover that would be served by the proposed facility at the Site. Mr. Hutchins concurred: "These gaps are unable to be remedied by the use of existing cells; this justifies a new facility in this area which, through collocation on the SBA tower, enables closing much of the gap without building a new support structure." 7 40. The Coverage Gap includes high-demand areas in which Cingular currently lacks adequate communications service. 41. The proposed facility would also help to provide a smooth transition with existing sites to which it would provide a coverage link. 42. There is no other suitable preexisting structure in this area of North Andover upon which to locate a wireless service facility. Nor has Cingular identified any superior alternative site that would enable it to provide quality coverage in the Coverage Gap. THE PROCEEDINGS BEFORE THE BOARD 43. On December 2, 2004, Cingular's consultant submitted a Building Permit application to the North Andover Building Department, seeking to collocate antennas on the existing tower at the Site, with equipment in a shelter in the existing compound at the base of the tower. 44. On December 9, 2004,the Building Inspector of North Andover denied the Building Permit, because he ruled that the proposal required both a special permit from the Planning Board and a setback variance from the Zoning Board of Appeals. 45. Therefore, pursuant to G.L. c. 40A, § 10, and Section 10.4 of the North Andover Zoning Bylaw, Cingular submitted an application to the Board on January 10, 2005, for a variance from the 600' setback provision, section 8.9(3)(c)(v) of North Andover's Wireless Service Facilities Zoning Bylaw. 46. The Board of Appeals initially noticed a public hearing on Plaintiff's application on February 8, 2005, and continued the matter to April 12, May 12, June 14, July 12 and August 9, 2005. 8 47. During the hearings, Cingular presented its plans,radio frequency analysis, radio frequency maps, a certification by a structural engineer, dated February 17, 2005, of the structural integrity of the existing tower to support the proposed Cingular installation, and proof of compliance with FCC radio frequency emissions regulations. 48. Cingular also presented other material demonstrating that literal compliance with Section 8.9(3)(c)(v)would cause substantial hardship due to the topography and shape of the lot, and due to existing structures on the lot. 49. The lot's unique combination of high terrain, large size and existing tower is not shared by other lots in the district. Indeed, the lot is the only one in the district that would permit coverage to this area of North Andover in compliance with the Bylaw's preference (Section 8.9.3.b) for location of wireless antennas upon existing structures. To deny needed coverage to the Coverage Gap from the Site would cause substantial hardship to Cingular in its FCC-licensed mission to provide coverage, and would cause financial hardship to the tower owner, SBA. 50. The Board did not contest that, as Cingular stated by letter of May 6, 2005, denial of the variance would `would prevent Cingular from(a)providing effective wireless communications services to its existing and potential customers in North Andover in an area where it currently has inadequate coverage, (b) satisfying the mandate of, and realizing the rights granted by, its federal license and the federal statute and regulations pursuant to which the license was issued, and(c) improving competition in the telecommunications industry as provided for in the Federal Telecommunications Act of 1996 (at least one other wireless communications provider— Sprint—has already been permitted to install a facility on this tower)." 51. Cingular's evidence showed that its proposed facility would comply with the intent and purpose of the bylaw justifying a variance from Section 8.9(3)(c)(v). It would 9 minimize the number of towers in Town by using an existing communications tower, would not materially increase any adverse visual impact of the existing tower,would comply with federal regulations regarding transmissions and exposure to radiofrequency emissions, and would be unobtrusive, requiring after installation only about one trip per month for routine maintenance. 52. Cingular also pointed out that the Board should consider the Telecommunications Act in deciding whether to grant a variance, because, among other things, the"Board cannot deny a variance if in doing so it would have the effect of prohibiting wireless services. ... In other words,the need for closing a significant gap in coverage, in order to avoid an effective prohibition of wireless services, constitutes another unique circumstance when a zoning variance is required." Nextel Communications of the Mid-Atlantic, Inc. v. Town of Wayland, 231 F.Supp. 2d 396, 406-407 (D. Mass. 2002). 53. During the Board's hearings, various citizens voiced objections to the proposed facility including, without limitation, "health issues," that would purportedly result from allowing the proposed FCC-licensed facility to operate, despite the undisputed evidence that radio frequency emissions from the proposed facility would only be a small fraction of the allowed exposure limit under FCC regulations. The total exposure from all antennas on the tower would not exceed 3.7%of FCC-allowed limits, of which Cingular's proposed facility would contribute less than 0.6% of the limits. Mr. Hutchins agreed that"cumulative exposure from the proposed facility is certain to be well below [FCC] guidelines for human exposure to RF radiation as long as tower access is restricted." 54. The Board deliberated on August 9, 2005, after which it voted 2 to 2 on a motion to grant the requested variance. The vote operated as a denial, because Mass. Gen. Laws c. 40A, § 10 requires a supermajority of four votes in these circumstances to approve a variance. 10 55. On August 23, 2005, the Board filed its Decision with the Town Clerk. 56. In its Decision, the Board cited as justification for its denial only the boilerplate that"a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship, financial or otherwise, to the petitioner, that desirable relief may not be granted without substantial detriment to the public good, and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of the Bylaw. 57. The Board's Decision did not specify any alleged detriment to the public good or any derogation from the intent or purpose of the Bylaw that would result from placement of an additional set of antennas on an existing communications tower already used by Cingular's competitor. 58. Nor did the Board discuss any Telecommunications Act issue, let alone whether Cingular needed the Site to close a substantial gap in coverage within the Coverage Gap, whether denial of this application would effectively prohibit Cingular from providing coverage in the Coverage Gap, or whether denial would unreasonably discriminate against Cingular while its direct competitor enjoys unrestricted use of the tower facility. 59. Neither the generalized concerns expressed in the Board's Decision nor any specific issue mentioned during the deliberations constitutes a valid basis for denying the requested variances. IRREPARABLE HARM 60. By denying Cingular the right to install and,operate its essential telecommunications facility, the Board has effectively prohibited Cingular from covering an existing significant gap in coverage within North Andover. 11 61. By denying Cingular the right to use the Site,while Sprint transmits and receives wireless communications signals from the existing tower on the Site, the Board has harmed Cingular in its efforts to compete with Sprint, and has harmed competition in the wireless communications industry generally. 62. As a result, Cingular has suffered and continues to suffer irreparable harm by being denied and delayed the opportunity to install and operate its facility at Site and by being placed at a competitive disadvantage compared to Sprint, which already operates from the Site. COUNT (M.G.L. c. 40A, Section 17) 63. Cingular repeats and realleges the allegations of paragraphs 1-62, above. 64. The Board's denial of Cingular's application is arbitrary and capricious, exceeds the Board's authority under Massachusetts General Laws Chapter 40A and federal law, lacks sufficient findings and is based on errors of law. COUNT II (Unconstitutional As-Applied) 65. Cingular repeats and realleges the allegations of paragraphs 1-64, above. 66. Under the Massachusetts Constitution, a zoning bylaw, though valid generally, may be unconstitutional as applied to a particular parcel of land when, due to the peculiarities of the parcel, application of the by-law is unnecessary to accomplish the public purpose for which the by-law was created. 67. Here,the Site has a glaring"peculiarity"—an existing telecommunications tower already serving a wireless carrier and numerous other broadcasters. 68. Because of the existing tower and lawful communication uses at the Site, there is no public purpose served by prohibiting another wireless carrier from mounting a facility on and 12 next to the existing tower, on the supposed ground that 600' of separation is required between wireless facilities and a residential lot line, as Section 8.9.(3)(c)(v)purports to do. COUNT III (Declaratory Judgment) 69. Cingular repeats and realleges the allegations of paragraphs 1-68, above. 70. Sections 8.9.(3)(c)(v) of the Zoning Bylaw (600' setback from a residential property line) is unlawful and invalid as applied to this application and on its face because it is void for vagueness in general and/or as applied here, and conflicts with the uniformity requirement of G.L. c. 40As section 4 ("Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted"). 71. Because Section 8.9.(3)(c)(v)has no purpose beyond effectuating supposed health- based objections to the environmental emissions of a facility that complies with FCC radiofrequency emissions regulations, it is preempted by federal law on its face and as applied. WHEREFORE, Cingular requests that this Court enter judgment: 1. Declaring that the North Andover Bylaw and the Board's Decision are arbitrary, capricious, m excess of the Board's and Town's authority and in violation of federal and state law; 2. Granting temporary, preliminary, and permanent injunctive relief ordering that Cingular be permitted immediately to install its proposed facility in accordance with its application and plans therefor; 3. Annulling the portion of the Board's Decision denying Cingular's application for variances; 13 4. Declaring that Section 8.9.(3)(c)(v)of the Zoning Bylaw (600' setback from a residential lot line) is unlawful and invalid as applied and on its face; 5. Ordering the Board to issue the requested variances and all other zoning relief necessary for the proposed facility; 6. Awarding Cingular reasonable attorneys' fees and costs; and 7. Awarding Cingular such other and further relief as the Court deems just and proper. The Plaintiff By its att eys, / i 4teh n . Anderson (BBO #018700) ugl H. Wilkins (BBO#528000) Scott Lacy(BBO#633323) ANDERSON &KREIGER LLP 43 Thorndike Street Cambridge,MA 02141 (617) 252-6575 Dated: September 12, 2005 g:\docs\cin\ma\northandoverchestnut\p\state-complaintO l.doc 14 4 ,•a;*� Town of North Andover Town Clerk Time Stamp 'Z Community Development and Services Division Office of the Zoning Board of Appeals 400 Osgood Street North Andover,Massachusetts 01845 Raymond SantilI4 Interim Community Telephone (978)688-9541 Fax (978)688-9542 C Development Director �,. =-;0 UX-4--t r—tom-) Any appeal shall be filed within Notice of DecisionT, .>.s rn. (20)days after the date of filing Year 2005 �S'= ::K of this notice in the office of the Town Clerk,per Mass.Gen. L.ch. 40A,§17. Property at: 300 Chestnut Street y:r to c NAME: Cingular Wireless LLC,580 Main Street, HEARING(S): February 8,April 12,May 12, Bolton,MA 01740 June 14,July 12,&Au t 9,2005 ADDRESS: for premises at: 300 Chestnut Street PETITION: 2005-001 North Andover,MA 01845 TYPING DATE: August 11,2005 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,August 9,2005 at 7:30 PM in the Town Hall top floor meeting room, 120 Main Street,North Andover,Massachusetts upon the application of Cingular Wireless LLC,580 Main Street,Bolton,MA 01740,for premises at:300 Chestnut Street, North Andover,requesting a dimensional Variance from Section 8,Paragraph 8.9(3)(c)(v)of the Zoning Bylaw, minimum requirements of the distance to lot lines,in order to install additional antennas on the existing antenna tower. Said premise affected is property with frontage on the East side of Chestnut Street within the R-3 zoning district. The legal notices were published in the Eagle Tribune on January 24&January 31,2005. The following voting members were present: Ellen P.McIntyre,Richard J.Byers,Thomas D.Ippolito,and Richard M.Vaillancourt. The following non-voting members were present: Joseph D.LaGrasse and David R- Webster. Upon a motion by Richard J.Byers and 2°d by Richard M.Vaillancourt,the Board voted to grant the dimensional Variance from Section 8,Paragraph 8.9(3)(c)(v),minimum requirements of the distance to the lot lines in order to install additional antennas on the existing antenna tower. Voting in favor of the motion: Ellen P.McIntyre and Richard J.Byers. Voting to deny the motion: Thomas D. Ippolito and Richard M.Vaillancourt. The Board finds that the motion for the Variance petition failed to receive the required super majority of four votes, per Mass.Gen.L ch.40A §15. The Board finds that the applicant was requested to address the issue of hardship in general as well as hardship as it pertains to soil,shape,and topography during the April 12,2005 hearing. The applicant provided the May 6,2005 written response and the May 12,2005 verbal response during the hearing to the issue of hardship as it pertains to gap coverage,but not to soil,shape and topography. The Board finds that owing to circumstances relating to the soil conditions,shape,or topography of the land or structures,and especially affecting such land but not affecting generally the zoning district in which it is located,a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship,financial or otherwise,to the petitioner,that desirable relief may not be granted without substantial detriment to the public good,and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of this Bylaw as stated in Section 1 and Section 10,Paragraph 10.4. Town of North Andover Board of Appeals, ATTEST: A True Copy �J Ellen P.McIntyre,Chair Town.Cler> Decision2005-001. M98.CP2. Board of Appeals 978-688-9541 Building 978-688-9545 Conservation 978-688-9530 Health 978-688-9540 Planning 978-688-9535 ANDERSON &KR.EIGERLLPREc�ivEo TOYN cc.W S OFFICE DOUGLAS H.WILKINS 2005 SEP 12 PM 1: 32 dwilkins @andersonkreiger.com T0'1WH OF NORTH. ANDQ'V MASSACHIUS 'r� September 12, 2005 By HAND Town Clerk ' 120 Main Street Northndover, {I A , MA 01845 NOTICE OF APPEAL: 1. Cin lar Massachusetts Wireless Board of LLC C V. To wn of North Andover Andover et al. eals of the Town of North strI 2 Cin ular Wireless PCS v. Toct ' D. Mass.), and Massachusetts Board of A ��'n °f North Andover Andover et al. (Essex Superior Court)of e Town of North RE: Applicant: Site: Cingular Wireless PCS LLC 300 Chestnut Street, North 0 Chestnut Street, Assessors Map Owner: Massachusetts (also known as Facility: SBA Towers, Inc, p C, Lot 2) Wireless Communication Facilities on and next to an e lattice tower existing Relief Sought: Variance (M.G.L. c. 40A 8.9(3)(c)(v))� and an ' § 10' and Bylaw Section 8,paragraph without limitation, additional Zoninger Relief as necessary ance or special e �'including, Dear Sir or Madam: Permit relief. Pursuant to Section 704 of the Telecommunications Act of 1996, Pub. 1934, 47 U.S.C. §§ 151-691, and General Lawat seCha erg c L. No. 104-104 that the plaintiff in the above actions Ci ( )(7) c the Communications Act of ( ngular Wireless, PCS Section LC on 17 by the North Andover Board of A , you are hereby notified to a proposed wireless co Appeals of its application )has appealed from the denial communication facility at for a variance and other relief related North Andover, Massachusetts (also known ty 0 Chestnutproperty located at 300 Street, Assessors Map Street, p 98.C, Lot 2). 43 Thorndike Street • Cambridge,MA 02141-1764 • (617) 252-6575 . Fax: (617) 252-6899 1.Ur Town Clerk- Town of North Andover September 12, 2005 Page 2 A copy of the Complaint filed today in Federal Distct Court is attached to this otoday, as Exhibit 1. A copy of the backup Complaint, which was filed in the Essex Superior Court is attached to this Notice as Exhibit 2. Please date stamp a copy of this letter and return it to our messenger. Thank you. Sinclye H. �ins Enclosures Cin/maNandoverChestnut\l\townclerkNotice.wpd ANDERSON KREIGERi_LP 0 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS I URBELIS Telephone 617-338-2200 Andover Office E-MAIL:tju@Iaf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 December 14, 2005 North Andover Zoning Board of Appeals North Andover Town Offices 400 Osgood Street North Andover, MA 01845 RE: NEW CINGULAR WIRELESS Vs. TOWN OF NORTH ANDOVER,ET AL. Dear Members of the Board: Enclosed please find a copy of a letter dated December 14, 2005 from Attorney Douglas Wilkins and the proposed Agreement for Judgment. Very truly yours, Thomas J 'belis TJU:kmp Enclosures cc: Board of Selectmen (w/enc) Mark Rees(w/enc) Gerald S. Brown(w/enc) Curt Bellavance (w/enc) WE DEC 15 2005 a BOARD OF APPEALS w:\wp5I\work\n-andove\corresp\zoning board Itr5.doc /14/Luca 1L:u4 rAA ol! LCL o8toit LNVZAaVn OL AAZIUZA Ll.r L�uvVl e'1 Lu}. J4a ''` ANDERSON KREIGER LLP Dour-As H.W=Ns ilwillilarindc•rankrri�dr.cvrn December 14, 2005 By Fax (617-338-0122) and Mail Thomas I Urbelis,Esq. Urbelis &Fieldsteel LLP 155 Federal Street .Boston, MA 02110 Re: New Cing-dar Wireless PCS LLC v. Town of North Andover, et a]. Civil Action Dockct No.: 05-11841 NG :Dear Tom: In response to your letter of December 6, 2005, 1 am enclosing an authorized proposal to resolve this case, in the form of an Agreement for Judgment. If we are successful in settling this case, there would be a proposed form of judgment, with the same operative wording. Once we settle on that wording, the proposed judgment wil l be easy to draft. I (lope that we are able to settle this case, along the lines that Cingular has successfully worked out with many other towns, including proposals and circumstances that were much more difficult than those involved here. I look forward to hearing from you. Sinler ly, o• glas H. Wilkins Enclosure c: Jay Perez,Esq. Kevin Mason \\Glaservcr 1DOGS\CTN\MA\NorthMdoverCheamuslL\thbclisOQ3•doc DEC 15 2005 BOARD OF APPEM--gThorndil a Street • Cambridge,MA 02141-1764 (617) 252-6575 • Fay (617) 252=6899 0 Ninted on reeyded caper i.L/ 1Y/ LuuJ 14.U0 rna 011 LCL oaaa A1NVhXbVA rk AXh1UhM LLr L Jl. 002 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 05CV 11841 NG NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) } TOWN OF NORTH ANDOVER,MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN MCINTYRE,RICHARD J. BYERS, ) ALBERT P.MANZI III, JOSEPH D. LaGRASSF, ) DAVID R. WEBSTER,DANIEL S.BRAESE, ) THOMAS D. IPPOLITO,RICHARD M.VAiLLANCOURT,) as they are members and associate members of the Board, ) Defendants. ) AGREEMENT FOIL JUDGMENT WHEREAS New Cingular Wireless PCS,LLC ("Cingule), applied to the Zoning Board of Appeals (the "Board") of the Town of North Andover,Massachusetts (the "Town") for a variance to authorize a proposed wireless communications facility to be installed on an existing lattice communications tower off Chestnut Street,North Andover,MA as shown on Assessors Map 98C, Lot 2 ("Site"). WHEREAS the Board issued a Decision, filed with the North Andover Town Clerk ou August 23,2005 (the"Decision"). WHEREAS the Decision denied the request for variance and other relief for Cingular's proposed facility. WHEREAS, Cingular timely appealed the Decision, under both Section 704 of the Telecommunications Act of 1996,Pub. L. No. 104-104 ("the Telecommunications Act"), codified at Section 332(c)(7) of the Communications Act of 1934,47 U.S.C. §§ 151-691, and Mass. Gen. 12/14/zoo5 12:05 FAX 617 252 6899 ANDERSON & KREIGER LLP 16003 Laws c. 40A, § 17. WHEREAS,without any admission of fact, law or liability, Cingular and the Town agree that it is in their best interests to settle this litigation by(a)reversing the decision of the Board denying the Vaxiance, (b) granting the requested relief with certain conditions imposed upon the Variance to be issued under this Agreement for Judgment and the Judgment entered pursuant hereto, (c) granting relief with respect to radiofrequency monitoring requirements and(d) dismissing certain remaining claims. WHEREAS, the parties agree that the following conditions should be imposed upon the Variance to be issued under this Agreement for Judgment and the Judgment entered pursuant hereto: (1) The facility must be installed upon the lattice tower at the Site, substantially as shown on the plans submitted to the Board and approved by this Agreement for Judgment(and the accompanying Judgment) and any necessary construction drawings to implement the same;provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. (2) The existing height of the lattice tower structure shall not be increased by virtue of this installation (except that nothing in this Agreement or the Judgment itself shall preclude the Board from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Agreement and the Judpaent;reposes-no obligation to approve such an application). (3) Upon request of the Board, Cingular or its contractor must paint or otherwise cause, and maintain,the antennas to reasonably match the color of the existing tower. (4) Cingular's facility,including antennas, cables and ground equipment, shall be removed within 120 days if the Cingular facility is not used for a continuous period of one year at anytime following completion of construction (force maj eure excepted). WHEREAS, without any admission of fact, lava or liability, and solely for purposes of 2 32/14/2005 12:06 FAX 617 252 6899 ANDERSON & KREIGER LLP 10004 settling this litigation, Cingular has proposed to construct and operate its facility,in accordance with the conditions set forth in the-preceding paragraph,and, subject only to revisions that reflect those conditions, substantially in accordance with the following plans prepared by Clough Harbour&Associates LLP and any construction drawings necessary to effectuate the same(the "Facility"): DRAWING NO. TITLE R1ZxffSI0N DATE T01 Title Sheet 12/23/04 COLA Comprehensive Site Plan 12/23/04 C01B Adjoining Structures Plan 4/28/05 COI.0 Adjoining Structures Plan 7/7/05 CO1 Site flan 12/23/04 CO2 Tower Elevations &Details 12/23/04 CO3 Structural Details 12/23/04 C04 Structural Details 12/23/04 C05 Structura:-Notes 12/23/04 E01 Power&Telephone Plan 12/23/04 E02 Grounding Plan 12/23/04 E03 Electrical Details 12/23/04 E04 Electrical Details 12/23/04 E05 Electrical Details 12/23/04 3 iz/14/zUU3 lz:UU r:9X 617 252 5899 ANDERSON & KREIGER LLP 19005 DRAWINGNO. TITLE REVISION DATE E06 Electrical Specifications 12/23/04 WH]ERBAS, without any admission of fact, law or liability, and solely for purposes of settling this litigation, the Town and the Board agree that the proposed Plans, as so modified to reflect the conditions set forth above, satisfactorily address their respective concerns with respect to Cingular's proposed Facility at the site, in light of the Telecommunications Act. WHEREAS,the Parties agree that the proposed Judgment shall allow for the grant of the Variance, with the terms and conditions stated above, and,thereafter, construction and operation of the Facility in accordance with the above conditions,the above revisions to the above-listed Plans and any construction drawings effectuating the same, with no other actions,meetings, hearings or decisions of the Board being necessary with respect thereto; and that construction shall be subject to a Building Permit,to be issued under authority of, and subject to the terms of, the proposed Judgment_ Nothing herein shall obviate the need.for Cingular to obtain a building permit or other non-zoning related permit f rn any local, state, or other authority. WHEREAS, Cingular's complaint also challenged certain provisions of the Town's Wireless Telecommunications Zoning Bylaw, including Section 8.9(8)(a) of the North Audover Bylaw ("RF Requirement"), as amended at the time of the Decision,which sets forth certain annual RF testing,monitoring, certification and reporting requirements for permitted Personal Wireless Communication Facilities in the Town. The parties agree to resolve that challenge as set forth below. WHEREAS,the Parties agree that the proposed Judgment shall allow for self-executing 4 12/14/2005 12:06 FAX 617 252 6899 ANDERSON & KREIGER LLP 10006 relief, with no other actions,meetings,hearings or decisions of the Board or Building Inspector being necessary with respect thereto. WHEREAS,there is no just cause for delay, and a remand to the Board would serve no useful purpose. NOW THEREFORE, the parties,through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment(in the fonn submitted herewith) as follows: A. Counts I and II On Counts I and II of the Complaint, without any admission of fact, law or liability, and solely for purposes of settling this litigation, all parties (New Cingular, the Board(including its members and associate members),the Building Inspector and the Town), through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment(in the fonn submitted herewith as Exhibit A) in favor of the Plaintiff such that the Decision shall be and hereby is (a) reversed to the extent it denied the requested variance and other relief as petitioned for Cingular's proposed Facility, (b) amended and modified to grant,with the above conditions, all necessary zoning relief for the proposed Facility, so that Cingular's proposed Facility may be constructed, installed and operated substantially in accordance with the above Plans, subject to the following conditions, which may be modified only pursuant to properly noticed Town zoning proceedings: I. The facility must be installed upon the lattice tower at the Site, substantially as shown on the plans submitted to the Board and approved by this Agreement for Judgment (and the accompanying Judgment) and any necessary construction drawings to implement the same; provided however that the plans may be,modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. 2. The existing height of the lattice tower structure shall not be increased by virtue of this installation(except that nothing in this Agreement or the Judgment itself shall preclude the Board from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Agreement and the Judgment imposes no 5 _ =2/14/2005 12:07 FAX 617 252 6899 ANDERSON & KREIGER LLP tO O07 obligation to approve such an application). 3. Upon request of the Board, Cingular or its contractor must paint or otherwise cause, and maintain,the antennas to reasonably match the color of the existing tower. 4. Cingular's facility,including antennas, cables and ground equipment, shall be removed within 120 days if the Cingular facility is not used for a continuous period of one year at anytime following completion of construction(force majcure excepted). B. Count VIH On Count VIII,without any admission of fact, law o,°liability, and solely for purposes of settling this litigation, all parties (New Cingular,the Board(including its members and associate members, the Building Inspector and the Town),through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment(in the form submitted herewith as Exhibit A) in favor of the Plaintiff on Count VIII of the Complaint such that(a) a Declaratory Judgment shall be and hereby is entered declaring that the Board,the Building Inspector and the Town are preempted by federal law from applying to Cingular the RF Requirement and, except as provided in the next paragraph, any past,present or future North Andover bylaw requiring RF testing, monitoring, certification and/or reporting concerning wireless communications facilities of PCS carriers licensed by the Federal Communications Cormnission (or successor federal agency) collectively,"RF emissions byiaw") and;"b)the defendants shall be and hereby are enjoined from applying any RF emissions bylaw to Cingular_ Nothing in this order shall prohibit the Town from adopting a Bylaw requiring the submission to the Town of a copy of any site-specific report required by the FCC regarding RF emissions measurements for facilities in North Andover, if that report has been submitted by the carrier as a public document to the FCC or successor agency. 6 M °G/t4/LUU0 IZ:U'/ rAA 617 252 6588 ANDERSON & KREIGER LLP 10 008 In the event that the FCC regulations or federal statutes are amended to increase materially the ability of municipalities to regulate RF emissions,the Town may move for relief from judgment under Fed.R. Civ. P. 60(b)to the same extent as if this were a litigated judgment. C. Other Counts and Actions The parties further stipulate and agree that Counts III, 1V,V,V.T.and VlI shall be dismissed without costs. The parties agree that, upon issuance of a building permit for the Cingular facility at the Site, Cingular will dismiss the companion state court action,New Cingular Wireless V. Town of North Andover,Essex Superior Court leo. 05-1580B. D. General Provisions All references to the Town in this Agreement shall also include the Zoning Board of Appeals and its members. All references to Cingular in this Agreement and in the Judgment shall also include Cingular's successors and assigns. The parties further stipulate and agree that there is no just cause for delay in the immediate entry of said Judgement and the immediate issuance of said special permit,variances and other necessary zoning relief by this Agreement for Judgment(and the accompanying Judgment) alone, and with no other actions,meetings,hearings or decisions being necessary. However,nothing in this Agreement shall obviate the need for a building permit. No work on the Site shall begin prior to the issuance of a building permit;the Town of North Andover,through its agents or officers, shall, upon application therefor., forthwitli issue a building permit for Cingular's wireless communication facility at the site consistent with this Agreement for Judgment and the accompanying Judgment; the Building Inspector shall approve the application for a Building Permit by Cingular within 15 days of receipt of its application if it complies with applicable state 7 iG/14/ZUU.7 1Z:Ud YAA 617 252 0899 ANDERbUN & KMIGEK LLY 19.1009 codes; and if the Building Official shall fail to approve any such application for a Building Permit within such 15-day period, the application sliall be deemed to be approved unless the application is trot in compliance with this Agreement for Judgment and the accompanying Final Judgment and any Plans approved under the Judgment. The parties waive all rights of appeal from the proposed Judgment submitted herewith. Each party shall bear its own costs, fees and expenses. The Plaintiff, The Defendants, By its attorneys, The Board(including its members and (associate members), and the Town, By their attorneys, Stephen D. Anderson, Thomas Urbellis Douglas H. Wilkins, Town Counsel ANDERSON&KREIGER LLP Town of North Andover 43 Thorndike Street Urbellis &Fieldsteel Cambridge,MA 02141 155 Federal Street (617)252-6575 Boston, Massachusetts 02110 (617)338-2200 Dated: December 14,2005 \\fileservcr\dasa\DOCS\C1N\MA\NordiAndovcrChas�nu6PAGRL•ETudg-2,doc 8 URBELIS&FIELDSTEEL,LLP 15.5 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail:tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 December 15, 2005 Clerk, Civil Department Essex Superior Court High Street Newburyport,MA 01950 RE: NEW CINGULAR WIRELESS PCS LLC VS.TOWN OF NORTH ANDOVER,ET AL. CIVIL ACTION No.05-1580B Dear Clerk: Enclosed please find the Defendants' Answer to Amended Complaint with respect to the above-entitled matter. Thank you for your attention. Very truly yours, /GCI� � Thomas J. rbelis TJU:kmp Enclosure cc: Douglas H. Wilkins, Esq. (w/enc) Zoning Board of Appeals (w/enc) Mark Rees WE DEC 16 2005 Q BOARD Or APPEALS wAwp5l work\n-andove\cingularlcoun.ltr-05-1580b.doc ' COMMONWEALTH OF MASSACHUSETTS ESSEX,SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 05-1580B NEW CINGULAR WIRELESS PCS LLC, Plaintiff V. TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS of the TOWN OF NORTH ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ALBERT P. MANZI III, JOSEPH D. LaGRASSE, DAVID R. WEBSTER, DANIEL S. BRAESE, THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT, as they are Members and Associate Members of the Board, Defendants DEFENDANTS' ANSWER TO AMENDED COMPLAINT 1. The last sentence is admitted and the Defendants are without information to form a belief as to the truth of the remaining allegations. 2. The Defendants are without information to form a belief as to the truth of the allegations. I The Defendants are without information to form a belief as to the truth of the allegations. 4. Admitted. 5. The Defendants admit that the Board is a duly constituted board of the Town but otherwise denies. 6. Admitted. 7. Admitted. p M Admitted. DEC 16 2005 wp5 I\workln-andove\cingular\answer-05-1580b.doc BOARD APPEALS 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. The Defendants are without information to form a belief as to the truth of the allegations. 17. The Defendants are without information to form a belief as to the truth of the allegations in the first sentence and admit the allegations in the second sentence. 18. Admitted. 19. The Defendants are without information to form a belief as to the truth of the allegations. 20. The Defendants are without information to form a belief as to the truth of the allegations. 21. Admitted. 22. The Defendants are without information to form a belief as to the truth of the allegations. 23. The Defendants are without information to form a belief as to the truth of the allegations. 24. The Defendants are without information to form a belief as to the truth of the allegations. 2 l 25. Denied. 26. Denied. 27. Admitted. 28. The Bylaw speaks for itself and, therefore, these allegations are denied. 29. Admitted. 30. The Defendants admit the second sentence and are without information to form a belief as to the truth of the allegations in the first and third sentences. 31. Admitted. 32. Admitted. 33. The Defendants are without information to form a belief as to the truth of the allegations. 34. The Defendants admit that Cingular submitted to the Board a report but the remaining allegations are denied. 35. Denied. 36. The Defendants are without information to form a belief as to the truth of the allegations. 37. Admitted. 38. The report speaks for itself and, therefore, these allegations are denied. 39. The Defendants are without information to form a belief as to the truth of the allegations. 40. The Defendants are without information to form a belief as to the truth of the allegations. 41. The Defendants are without information to form a belief as to the truth of the allegations. 42. The Defendants are without information to form a belief as to the truth of the allegations. 43. The Defendants are without information to form a belief as to the truth of the allegations. 44. Admitted. 45. Admitted. 46. Admitted. 47. Admitted that Cingular presented plans, radio frequency analysis, maps and a certification, but otherwise denied. 48. Denied. 49. The Defendants are without information to form a belief as to the truth of the allegations. 50. The Defendants are without information to form a belief as to the truth of the allegations. 51. Denied. 52. The Defendants are without information to form a belief as to the truth of the allegations. 53. The Defendants admit that various citizens voiced objections to the proposed facility, but otherwise the Board is without information to form a belief as to the truth of the allegations. 54. Admitted. 4 55. Admitted. 56. The Decision speaks for itself and, therefore, these allegations are denied. 57. The Decision speaks for itself and, therefore, these allegations are denied. 58. The Decision speaks for itself and, therefore, these allegations are denied. 59. Denied. 60, Denied. 61. Denied. 62. Denied. 63. The Defendants repeat and incorporate herein their responses to Paragraphs 1 through 62. 64. Denied. 65. The Defendants repeat and incorporate herein their responses to Paragraphs 1 through 64. 66. Denied. 67. The Defendants are without information to form a belief as to the truth of the allegations. 68. Denied. 69. The Defendants repeat and incorporate herein their responses to Paragraphs 1 through 68. 70. Denied. 71. Denied. WHEREFORE, Defendants request that this Court enter judgment: 1. Dismissing this case; 5 �R:.,.wi..1 2. Affirming the Decision of the North Andover Zoning Board of Appeals; 3. Award reasonable attorneys fees and costs; and 4. Award such other relief as this Court deems just and proper. Date: December 15, 2005 TOWN OF NORTH ANDOVER, ET AL By their attorney, Thomas J. Urb , BBO #506560 Urbelis & Fiel steel, LLP 155 Federal Street Boston, Massachusetts 02110 Telephone: (617) 338-2200 CERTIFICATE OF SERVICE I, Thomas J. Urbelis, hereby certify that I served a true copy of the above document by mailing same first-class mail, postage prepaid, to counsel of record Douglas H. Wilkins; Esquire, Anderson & Kreiger, LLP, 43 Thorndike Street, Cambridge, MA 02114 on this 15`x' day of December, 2005. Thomas J. Urb 6 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail: tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 January 24, 2006 Clerk, Civil Department Essex Superior Court High Street Newburyport, MA 01950 RE: NEW CINGULAR WIRELESS PCS LLC VS.TOWN OF NORTH ANDOVER,ET AL. CIVIL ACTION NO.05-1580B Dear Clerk: Enclosed please find the following documents with respect to the above-captioned matter.: ` 1. List of Combined Documents Pursuant to Rule 9A; 2. Defendants' Motion for Order of Remand; 3. Order of Remand; 4. Opposition to Defendants' Motion for Order of Remand (Hearing Requested); 5. Plaintiff's Cross-Motion for Leave to Dismiss this Case Voluntarily; and 6. Certificate of Service Thank you for your attention. Very truly yours, Thomas J. rbelis TJU:kmp Enclosures cc: Douglas H. Wilkins,Esq. (w/enc) bcc: Board of Selectmen gw/enc) Mark Rees (w/enc) ng Board of Appeals (w/enc) L� Bellavance (w/enc) JAN 2 6 2006 B6mbob-anAPkxclgulvl sWtIR2-05-1580b.doc COMMONWEALTH OF MASSACHUSETTS ESSEX,SS. SUPERIOR COURT DEPAiu.,NfENT OF THE TRIAL COURT CIVIL ACTION No. 05-1580B NEW CINGULAR WIRELESS PCS LLC, Plaintiff V. TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS of the TOWN OF NORTH ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ALBERT P. MANZI III, JOSEPH D. LaGRASSE, DAVID R. WEBSTER, DANIEL S. BRAESE, THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT, as they are Members and Associate Members of the Board, Defendants LIST OF COMBINED DOCUMENTS PURSUANT TO RULE 9A r � 1. Defendants' Motion for Order of Remand; 2. Order of Remand; 3. Opposition to Defendants' Motion for Order of Remand (Iearing Requested); 4. Plaintiff's Cross-Motion for Leave to Dismiss this Case Voluntarily; and 5. Certificate of Service Date: January 24, 2006 TOWN OF NORTI ANDOVER, LT AL By their attorney, Thomas J. U b lis, BBO #506560 Urbelis & Fieldsteel. LLP 155 Federal Street Boston, Massachusetts 021 10 4 Telephone: (617) 338-2200 ,iN ti 6 2006 BOARD OF APPEALS=„...................... CERTIFICATE OF SERVICE I, Thomas J. Urbelis, hereby certify that I served a true copy of the following: 1. Defendants' Motion for Order of Remand; 2. Order of Remand; 3. Opposition to Defendants' Motion for Order of Remand (Hearin; Requested); 4. Plaintiff's Cross-Motion for Leave to Dismiss this Case Voluntarily; and 5. List of Combined Documents Pursuant to Rule 9A by mailing same first-class mail, postage prepaid, to counsel of record: Douglas H. Wilkins, Esquire Anderson & Kreiger, LLP 43 Thorndike Street Cambridge, MA 02141 Date: January 24, 2006 Thomas J. Ur lis ,.wpiIork\n-anduvOc imadar\cery i tie ate t)(sci vice,doc COMMONWEALTH OF MASSACHUSETTS ESSEX,SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 05-1580B NEW CINGULAR WIRELESS PCS LLC, Plaintiff V. TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS of the TOWN OF NORTH ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ALBERT P. MANZI III, JOSEPH D. LaGRASSE, DAVID R. WEBSTER, DANIEL S. BRAESE, THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT, as they are Members and Associate Members of the Board, Defendants DEFENDANTS' MOTION FOR ORDER OF REMAND Defendants respectfully move this Court to enter the attached Order of Remand and say in support hereof that the Defendant Zoning Board of Appeals intends to conduct a further hearing to reconsider its denial of the variance requested by the Plaintiff. Plaintiff will not be prejudiced by this Order of Remand because if the variance is granted, then Plaintiff will obtain what it had originally requested and what it is seeking in this action. Furthermore, judicial economy will be preserved because if the variance is granted, this action would be moot and could be dismissed by a stipulation of dismissal, without any further action of the Court being required. f l � IAN 2 6 2006 D ARO Or APPEALS Date: January 11, 2006 TOWN OF NORTH ANDOVER, ET AL By their attorney, Thomas J. Urbe i , BBO 4506560 Urbelis & Fieldsteel, LLP 155 Federal Street Boston, Massachusetts 02110 Telephone: (617) 338-2200 F z v COMMONWEALTH OF MASSACHUSETTS ESSEX,SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 05-1580B NEW CINGULAR WIRELESS PCS LLC, Plaintiff V. TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF APPEALS of the TOWN OF NORTH ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ALBERT P. MANZI III, JOSEPH D. LaGRASSE, DAVID R. WEBSTER, DANIEL S. BRAESE, THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT, as they are Members and Associate Members of the Board, Defendants ORDER OF REMAND It is ordered that this matter is remanded to the North Andover Zoning Board of Appeals for further hearings on the Plaintiff's application for a variance from the 600 foot setback provision of the North Andover Zoning Bylaw and for a reconsideration of the Board's denial of the variance requested by the Plaintiff. At the Defendants' expense, the hearing shall be published and notice given to the parties in interest pursuant to law. The Zoning Board of Appeals shall render a decision within 100 days of the date of this order unless the time is extended with the written consent of the Plaintiff and such consent is filed with the Town Clerk's Office. Date: D 'JAN 2 6 2006 Justice of the Superior Court BOARD OF APPEALS COMMOWEALTH OF MASSACHUSETTS Essex, ss. Superior Court Civil Action No. 05-1580B NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) TOWN OF NORTH ANDOVER, MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ) ALBERT P. MANZI III, JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIEL S. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT,) as they are members and associate members of the Board, ) Defendants. ) r � OPPOSITION TO DEFENDANTS' MOTION FOR ORDER OF REMAND (HEARING REQUESTED) 1. This case involves the proposal by a federally licensed wireless communications carrier,New Cingular Wireless PCS, LLC ("Cingular") to install a wireless communications facility on an existing, guyed, orange-and-white-striped lattice communications tower at 300 Chestnut Street,North Andover, MA (also known as 0 Chestnut Street, Assessors Map 98C, Lot 2) ("Site"). The proposed facility would cover over 1.2 square miles of an undisputed gap in Cingular's coverage on a major road and surrounding neighborhoods. 2. Because of the federal issues involved(effective prohibition of coverage, unlawful discrimination against a licensed carrier, failure to support the decision by substantial evidence, undue delay and other violations), Cingular filed its primary action in federal court, r � where it is docketed as New Cingular Wireless PCS LLC v. Town of North Andover JAN 2, 62006 D BOARD Or APPEALS Massachusetts et al., Civil Action No. 05CV 11841 NG. 3. In its complaint in this state court case,p. 1, footnote 1, Cingular made very clear that: This complaint is intended as a back-up to a federal court complaint between the same parties, filed earlier on the same day, in the event that the Federal Court determines that it lacks jurisdiction over the state law claims stated in that complaint. The plaintiff s intention is to proceed entirely in Federal Court unless and until any jurisdictional difficulty with the state law claims appears. At all times, Cingular has intended to proceed in Federal Court,because the remedies available under the Federal Telecommunications Act are more powerful than those available under G.L. C. 40A. Ordinarily, a plaintiff proving violation of the Federal Telecommunications Act is entitled to a Court Order that the permit issue. "[I]n the majority of cases the proper remedy for a zoning board decision that violates the Act will be an order. . . instructing the board to authorize construction." Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 21-22 (1st Cir. 2002). 4. A Court order is not subject to the lengthy court appeals process permitted by G.L. c. 40A, § 17, upon appeal by any person claiming to be an aggrieved person, which can last years—time during which Cingular's competitors are and will already be operating on the existing lattice tower. One reason for the entry of a court order, rather than a remand,under Nat'l Tower is because that approach(rather than a remand)best enforces the TCA's requirements that the Board act within"a reasonable period of time",and that the reviewing court hear and decide the case "on an expedited basis." National Tower, 297 F.3d at 20, quoting 47 U.S.C. §332(c)(7)(B)(ii), (v). 5. The Town's Motion for Order of Remand ("Motion") is simply not accurate, therefore, in asserting that "plaintiff will not obtain what it had originally requested and what it is 2 seeking in.this action." Instead, the plaintiff will be saddled with years of additional potential delay. The Town's Motion also seeks to impose costs of further proceedings upon Cingular, which does not desire those proceedings at this time and therefore objects to such costs. 6. The Motion is also incorrect in asserting that issuance of a variance would moot this case and occasion a stipulation of dismissal. Other claims, including federal claims would remain, particularly if anyone appealed the remand decision—which would proliferate litigation unnecessarily in the state courts (where the plaintiff did not plan to litigate in the first place). The Motion therefore could create the awkward situation where Cingular proceeds upon its federal complaint, and as plaintiff in this action seeks a court order fora permit and invalidation of bylaw provisions, while a separate action,brought by third parties appeals the Board's remand decision. 7. If the Town is really interested in offering what the plaintiff is seeking in this case, it should negotiate a court order for issuance of the variance, in accordance with Plainville.2 Instead, it is trying to impose an undesirable, litigated solution upon the plaintiff, which will complicate, not promote resolution. 8. As stated in the accompanying Cross-Motion for Leave to Dismiss This Case Voluntarily, the plaintiff would rather enter into a stipulation of dismissal of this case now, than undergo the process that the Board wishes the Court to impose. 1 While the Complaint in this case focuses upon the state claims, it does assert federal violations and, for instance, alleges(in paragraph 64)that the Town has violated federal law and(in paragraphs 70-71) that the Court should declare that the Town's regulations are preempted by federal law. Cingular also seeks declarations invalidating Section 8,paragraph 8.9(3)(c)(v)of the North Andover Zoning Bylaw ("Bylaw")(600' minimum distance to lot line), on its face and as applied to the proposed installation of Cingular antennas, equipment and structures on and next to the existing tower. 2 There appears to be no legitimate substantive reason for the Board to oppose such a settlement,which follows the approach taken by myriad other municipalities in Massachusetts and elsewhere under the Telecommunications Act. The only apparent reason for the Board to insist upon a remand is to enable third parties to appeal a variance, 3 9. For the Board to deny the plaintiff s application last summer, delay five more months, and then file a Motion requesting an order that has the potential for still greater delay and proliferation of litigation,runs exactly contrary to the Telecommunication Act's mandate for expedited resolution. See 47 U.S.C. §332(c)(7)(B)(11), (v), quoted in National Tower, 297 F.3d at 20. The Court should not permit such tactics. REQUEST FOR A HEARING Unless the Court grants the Plaintiff s Motion for Voluntary Dismissal and denies the Motion for Order Of Remand on the papers, the plaintiff requests an opportunity for a hearing, because of the effect that the requested remand would have on this litigation, the federal litigation, and the additional burden and expense that a remand would impose upon the plaintiff. The Plaintiff By it§A4orneys, t i= Ste hen D. Anderson (BBO#018700) Douglas H. Wilkins (BBO #528000) Scott Lacy(BBO#633323) ANDERSON&KREIGER LLP 43 Thorndike Street Cambridge, MA 02141 (617) 252-6575 Dated: January 23, 2006 thereby furthering the Board's long-standing efforts to hinder or prevent this federally licensed facility from being built and from providing added competition for the existing wireless carriers already on the tower. 4 f 1 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing on all parties of record listed below by first-class mail,postage pre-paid, on this 23rd day of January 2006. Thomas J. Urbelis, Esq. Urbelis &Fieidsteel LLP 155 Federal Street Boston, MA 02110 P Dodglas H. Wilkins \\fileserver\data\DOCS\CIN\MA\NorthAndoverChestnut\P\OppMoRemand.doc \ i F \ 5 1 COMMOWEALTH OF MASSACHUSETTS Essex, ss. Superior Court Civil Action No. 05-1580B NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) TOWN OF NORTH ANDOVER, MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ) ALBERT P. MANZI III, JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIEL S. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT,) as they are members and associate members of the Board, ) Defendants. ) N PLAINTIFF'S CROSS-MOTION FOR LEAVE TO DISMISS THIS CASE VOLUNTARILY Pursuant to Mass. R. Civ. P. 41(a)(2), and in response to the Defendants' Motion for an Order of Remand, the plaintiff, New Cingular Wireless PCS, LLC ("Cingular"), cross-moves for leave to dismiss this case voluntarily without prejudice, so that it may proceed solely upon its complaint in federal court as originally intended. As further grounds for this cross-motion, Cingular states: 1. In its complaint in this case,p. 1, footnote 1, Cingular made very clear that: This complaint is intended as a back-up to a federal court complaint between the same parties, filed earlier on the same day,Ell in the event that the Federal Court determines that 1 This case involves the proposal by a federally licensed wireless communications carrier,Cingular,to install a wireless communications facility on an existing,guyed, orange-and-white-striped lattice communications tower at r 10%Cr ipsinut Street,North Andover,MA(also known as 0 Chestnut Street,Assessors Map 98C,Lot 2) ("Site"). he prop4d facility would cover over 1.2 square miles of an undisputed gap in Cingular's coverage on a major ',i' JAN 2 ",� r it lacks jurisdiction over the state law claims stated in that complaint. The plaintiff's intention is to proceed entirely in Federal Court unless and until any jurisdictional difficulty with the state law claims appears. 2. Cingular believes that the original rationale for filing this parallel action in state court no longer applies, and therefore wishes to dismiss this case, to avoid the time, effort and expense of having to litigate both a federal and a state court action,particularly in light of the complications, expense and delay that are likely to be caused by the Town's Motion for Order of Remand("Motion"). 3. The Motion, 12, states that"judicial economy will be preserved because if the variance is granted, this action would be moot and could be dismissed by a stipulation of dismissal, without any further action of the Court being required." 4. The Town's desire for judicial economy can be met more immediately and more efficiently simply by dismissing this state court case now. The Town has no reasonable grounds to oppose this, based upon the rationale of its Motion. 5. On the other hand, if this case is not dismissed, there will likely be disputes that no variance will resolve, and there likely will be a proliferation of litigation in this court and the federal court, as more fully described in the Plaintiff s Opposition to Defendants' Motion for Order of Remand, filed herewith. road and surrounding neighborhoods. Because of the federal issues involved(effective prohibition of coverage, unlawful discrimination against a licensed carrier, failure to support the decision by substantial evidence,undue delay and other violations),Cingular filed its primary action in federal court, where it is docketed as New Cingular Wireless PCS,LLC v.Town of North Andover Massachusetts et al.,Civil Action No. 05CV 11841 NG. 2 �.\ The Plaintiff By its attorneys, 5 V e hen D. Anderson (BBO #018700) Douglas H. Wilkins (BBO#528000) Scott Lacy(BBO #633323) ANDERSON&KREIGER LLP 43 Thorndike Street Cambridge, MA 02141 (617) 252-6575 Dated: January 23, 2006 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing on all parties of record listed below by first-class mail,postage pre-paid, on this 23rd day of January 2006. F Thomas J. Urbelis, Esq. Urbelis &Fieldsteel LLP 155 Federal Street Boston, MA 02110 3 Dougjlas H. Wilkins \\fileserver\data\DOCS\CIN\MA\NorthAndoverChesmut\P\MoDismiss.doc f � 3 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978475-4552 January 30, 2006 North Andover Zoning Board of Appeals North Andover Town Offices 400 Osgood Street North Andover, MA 01845 RE: NEw CINGULAR WIRELESS PSC,LLC vs. NORTH ANDOVER ZONING BOARD OF APPEALS,ET AL. FEDERAL DISTRICT COURT NO. 05-11841 Dear Members of the Board: Enclosed is a copy of your denial of Cingulafs request for a variance from the 600 feet setback requirement of the bylaw, in order to install additional antennas on the existing antenna tower. The reason for denial (by a 2-2 vote) is as follows: The Board finds that the applicant was requested to address the issue of hardship in general as well as hardship as it pertains to soil, shape, and topography during the April 12, 2005 hearing. The applicant provided the May 6, 2005 written response and the May 12, 2005 verbal response during the hearing to the issue of hardship as it pertains to gap coverage,but not to soil, shape and topography. The Board finds that owing to circumstances relating to the soil conditions, shape or topography of the land or structures, and especially affecting such land but not affecting generally the zoning district in which it is located, a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship, financial or otherwise, to the petitioner, that desirable relief may not be granted without substantial detriment to the public good, and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of this Bylaw as stated in Section 1 and Section 10, Paragraph 10.4. F� lay's complaint in the above-referenced case alleges in part: FEB 2 - Z006 BOARD OF APPEALS s:\wp51\work\n-andove\cotresp\zoning board.ltr2-cingular.doc URBELIS&FIELDSTEEL,LLP January 30, 2006 Page 2 21. The Telecommunications Act, while preserving certain State and local authority over the placement, construction or modification of wireless facilities, expressly preempts State or local governments from regulating such facilities in a manner that prohibits or has the effect of prohibiting the provision of personal wireless services, or from unreasonably discriminating among providers of functionally equivalent wireless services. It requires that the decisions of State or local governments concerning any requests for authorization to place, construct or modify wireless facilities must be supported by"substantial evidence." 22. The Telecommunications Act further prohibits State or local governments from regulating the placement or construction of wireless service facilities on the basis of perceived environmental or health effects of radio frequency emissions to the extent that such facilities comply with standards promulgated by the FCC. 25. On June 30, 2000, the North Andover Planning Board issued a special permit, with conditions, to Sprint Spectrum, LP to install and operate a wireless service facility on the existing tower structure at 300 Chestnut Street. Among other things, the Planning Board found that the Site "is an appropriate location for the project as it is being collocated on an existing wireless location" and that the use "will not adversely affect the neighborhood." 27. Cingular's proposal will not increase the height of the existing tower or enlarge the existing fenced equipment compound. 28. Currently, there are multiple antennas on the tower including those of Cingular's direct competitor, Sprint Spectrum. 30. The proposed facility is passive and unobtrusive, requires no employees or customers on the premises, and has no characteristics that are incompatible with nearby properties. It is not located in wetland resource areas or buffer zones, will not include any outdoor storage or any solid waste receptacles, and,because it is unmanned, will not require a means of water supply or sewage disposal. 31. The proposed facility will involve no offensive lighting, odors, smoke, noise, or refuse materials. 35. Section 8.9.3.b provides that wireless service facilities must be located on preexistent structures if feasible unless (a) the applicant can demonstrate URBELIS&FIELDSTEEL,LLP January 30, 2006 Page 3 to the satisfaction of the Special Permit Granting Authority (the Planning Board) that it is not feasible to locate on a preexistent structure and (b) the wireless service facility is "camouflaged to the greatest extent possible." 42. As demonstrated by the submitted coverage maps, without the proposed facility at this Site, Cingular will be unable to provide adequate indoor and in-vehicle coverage - and will therefore continue to have a significant gap in coverage - in this area of North Andover("Coverage Gap"). 44. To test the existence of a coverage gap, the Board hired (at Cingular's expense) Mark Hutchins, an independent consultant. 45. Mr. Hutchins evaluated coverage in the Coverage Gap and confirmed that there are "significant gaps in Cingular's North Andover coverage, particularly along Salem Turnpike (Route 114) near Andover Bypass, and nearby residential areas to the north and east." He calculated that the proposed facility would "remedy" the gap "over an area just over 1.2 square miles." 57. The Board did not contest that, as Cingular stated by letter of May 6,2005, denial of the variance would "would prevent Cingular from (a) providing effective wireless communications services to its existing and potential customers in North Andover in an area where it currently has inadequate coverage, (b) satisfying the mandate of, and realizing the rights granted by, its federal license and the federal statute and regulations pursuant to which the license was issued, and (c) improving competition in the telecommunications industry as provided for in the Federal Telecommunications Act of 1996 (at least one other wireless communications provider - Sprint - has already been permitted to install a facility on this tower)." 58. Cingular's evidence showed that its proposed facility would comply with the intent and purpose of the bylaw justifying a variance from Section 8.9(3)(c)(v). It would minimize the number of towers in Town by using an existing communications tower,would not materially increase any adverse visual impact of the existing tower, would comply with federal regulations regarding transmissions and exposure to radiofrequency emissions, and would be unobtrusive, requiring after installation only about one trip per month for routine maintenance. 59. Cingular also pointed out that the Board should consider the Telecommunications Act in deciding whether to grant a variance, because, URBELIS&FIELDSTEEL,LLP January 30, 2006 Page 4 among other things, the "Board cannot deny a variance if in doing so it would have the effect of prohibiting wireless services In other words, the need for closing a significant gap in coverage, in order to avoid an effective prohibition of wireless services, constitutes another unique circumstance when a zoning variance is required." Nextel Communications of the Mid-Atlantic. Inc. v. Town of Wayland, 231 F. Supp. 2d 396, 406-407 (D. Mass. 2002). 60. During the Board's hearings, various citizens voiced objections to the proposed facility including, without limitation, "health issues," that would purportedly result from allowing the proposed FCC-licensed facility to operate, despite the undisputed evidence that radio frequency emissions from the proposed facility would only be a small fraction of the allowed exposure limit under FCC regulations. The total exposure from all antennas on the tower would not exceed 3.7% of FCC-allowed limits, of which Cingular's proposed facility would contribute less than 0.6% of the limits. Mr. Hutchins agreed that "cumulative exposure from the proposed facility is certain to be well below [FCC] guidelines for human exposure to RF radiation as long as tower access is restricted." 64. The Board's Decision did not specify any alleged detriment to the public good or any derogation from the intent or purpose of the Bylaw that would result from placement of an additional set of antennas on an existing communications tower already used by Cingular's competitor. 65. Nor did the Board discuss any Telecommunications Act issue, let alone whether Cingular needed the Site to close a substantial gap in coverage within the Coverage Gap, whether denial of this application would effectively prohibit Cingular from providing coverage in the Coverage Gap, or whether denial would unreasonably discriminate against Cingular while its direct competitor enjoys unrestricted use of the tower facility. 66. Neither the generalized concerns expressed in the Board's Decision nor any specific issue mentioned during the deliberations constitutes a valid basis for denying the requested variances. 87. The Telecommunications Act provides in relevant part that "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the bases of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations, concerning such emissions." 47 U.S.C. § 332(c)(7)(B)(iv). The proposed URBELIS&FIELDSTEEL,LLP January 30, 2006 Page 5 installation fully complies with those regulations. The term "environmental effects" as used in this section includes health effects. 88. The Board's denial of the variances requested by Cingular on the basis of a 600' setback in a zoning bylaw, which was adopted at the behest of citizens of the Town based upon perceived health effects, as reinforced by public comments at the hearings expressly invoking alleged health effects of an FCC-compliant facility, violates this requirement. For your convenience I am enclosing copies of my letters dated February 6, 2003, May 10, 2001, August 31, 2000 and July 27, 2000. As I stated in my letter dated May 10, 2001: All of the foregoing must be tempered with a caveat that the various Town Boards must give due consideration to the restrictions placed upon those Boards by the Federal Telecommunications Act of 1996. When Article 21 was discussed last December, I cautioned Town Meeting that in certain circumstances, the TCA could trump decisions of local boards acting under a zoning bylaw, which in effect prohibit the providing of personal wireless service. Also, in my letter dated July 27, 2000, I stated: If a town's criteria for granting a permit to build wireless telephone service facilities or administration of those criteria effectively preclude towers no matter what the carrier does, they may amount to an effective ban on provision of personal wireless services, in violation of the Telecommunications Act, even though substantial evidence will almost certainly exist for the denial. Amherst, N.H., supra., at 14. In your consideration of resolving the above referenced litigation, and in accordance with the Federal Telecommunications Act of 1996, it is important to consider whether the reason given by the Board for the denial of the additional antenna is supported by substantial evidence and does not prohibit the provision of personal wireless service, particularly when the expert hired by the Town apparently concluded there was a"gap'in coverage. URBELIS&FIELDSTEEL,LLP January 30, 2006 Page 6 As always,please call if you have any questions. Very truly yours, /I+L w*J4(j�" Thomas U. Jrbelis TJU/kmp Enclosure cc: Board of Selectmen (w/enc) Planning Board (w/enc) Mark Rees (w/enc) Curt Bellavance (w/enc) Ray Santilli (w/enc) URBELIS&FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS I URBEUS Telephone 617-338-2200 Andover e-mail to@ufb.com Telecopier 617-338-0122 Telephone 978-475-4552 February 6, 2003 North Andover Planning Board Town of North Andover 27 Charles Street North Andover, MA 01845 RE: WIRELESS COMMUNICATION FACILITIES Dear Members of the Board: Per my discussion with Justin Woods, enclosed for your convenience are copies of my letters dated August 31, 2000 and May 10, 2001. Please call if you have any questions. Very truly yours, ?eehs Thomas J. Enclosure TJU/lah cc: Heidi Griffin Mark Rees Justin Woods Ray Santini s:\wp5 flworkln-andovekeorresp\pia ooard.lu.doc URSELLS,FMZs2Ea&BA MW,LLP 155 FEnERAL STREET BOMN,MASSArraL SUMS 02110-1727 Tomas J.Usk Telephone 617-338-2200. Andover Office B-MAff- -c T6=)pi=617-3384122 TelcPhnne 979-47s-4552 August 31,2000 Zoning Board of Appeals Town of North Andover North Andover Town Offices 27 Charles Street North Andover,MA 01845 RE: Wireless Communications Facilities Dear Members of the Board; I am writing as a follow-up to my letter dated July 27, 2000, which was sent in=sponse to your request First, enclosed is a copy of my letter elated August 10,2000,to Term Ackerman relating to a moratorium. Second,I would Eke to bring to your attention the Federal District Court case ofnia_a�nt Communications MM Operations LLC v Town of Line, st aL Civil Action No.99-11012-EFE decided August 2,.2000. This decision zoites M great detail the canside~aations that must go into a Board of Appeals decision with regard to wireless ccm runic tion facilities and I thought it would be helpful to you to know what the Court said. The essence of the decision was staters by the Court as follows: This case dramatizes the perpetual clash between national and local interests and betw=material progress and nahnral beauty. In the Nineteenth Century=]road tracks were layed by Waidea Pond; in the Tweaticth Century telephone poles were the trees that grew an D ( ( b�e ; in the Twenty-Fust Century wireless towers will z M* moss the suburban landscape. A technological advance cannot be penaanCUdY dyedby a BOARD OF APPEALS :c::,:n'._tia ::,.a.r-,.:,,:e_o..za,war•.o.u.::a,.lu,,.:,,.raw,.:.l�s:wc• •..:ua::,<loco::Mn._:>x.:.,�.........:wu:..w.,.w..w.,a,;,.......... .ua, ..am: .. u •n'mar.:•.•,.2KY;JSA1 tu•a.,r.:a .11nY.'.`.Nutt:u•••vtiY..'UCJCwtL^.,U::l4Ml'St.:SwY.- w . -ems..%: - , ... ..................... .....uW-ice ref[:'.::,..a....0 FnU-DsTEEL&-BAnJX,LLP North Andover Zoning Board of Appeals August 31, 2000 Page 2 local stratagem devised to preserve-the character and beauty of a locality. The enduring principle of local control of lmd use snail be honored, but only if a federal law which promotes the establishment of a comprehensive nationwide wireless communication network is not thereby subverted. For good or for iil,Hamilton's,not Jefferson's,vision,for America has prevailed. Omnipoint sought a variance and special pennit to ere#an 89 foot tall monopole wireless communication facility(WCF). The Lincoln Board of Appeals denied the request• The Zomig bylaw restricted such des to an Overlay District. In addition to restricting the location of a WCF, the By-Law also places significant restrictions upon the moaner in which a WCF may be caastrncted, as well as substantial filing requirements for obtaining a special P==t The By-Law provides that absent a significant tree canopy the height of any WCF shall not exceed sixty(60) feet above finished grade of ground elevation. If,however,there is a significant tree canopy, theu'the Plam3ing Board may allow a WCF to extend twenty(20)fi:d above the surrounding tree canopy if in the•Board's opinion, such an increase in height would.not cause a material increase in the visual impacts fivm the WCF. Omnipoint sought relief to construct a facility outside the Overlay District The Board of Appeals issued a four-page decision denying Omnipoint s request for a special permit and/or a use variance to canstruct a WCF at Tracey's Towing. The Board of Appeals decision rested on several legal grounds,but it essentially held that the By-Law restricts WCF's exclusively to the Overlay District and that the Board of Appeals had no authority to grant relief allowing the exertion of WCF's outside of the Overlay District. The Court disc•=ed the background of the Telewommtmicatious Act of 1996 (TCA): ..,;w:•t "'Y::.1:w8:.LL•lk:+iSt:.t::nuiW.Y' ....\:.-.....:'•\:. 'n wtil'.w:SS:f .�yu.:•af•uLiirl::ut`+'e:'.CLiLi..Ye ....•...n' Y'+.,>Vv+V.u>-i:.-+L......_..u..tt.n...t....vv.rtr...e .•.u:..-...wW:rs-....u.:..•:twu r..-wlv.rf�vf.ur.:..-..r....a..�.•..._..r..u.+....'•+u...1.Ju...-........u:t u..n............ ...� FIELDS MEL&Bit,LLP Ttorth Andover Zoning Board of Appeals August 31, 2000 Page 3 The TCA was passed."in order to provide -a procompetitive, deregulatory national policy framework designed to acceierate rapidly private sector deployment of advanced telco=mumcatiom and information terlmologies and services to all Americans by op=mg all telecommtmacation markets to competiti6n..." The TCA `,is a deliberate compromise between two competing aims — to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers." "Accardingiy, the TCA significantly limits the ability of state and local authority to apply zoning regulations to wireless telecammunications." Under the TCA, the power of local governmental authorities to regulate the placement, -construction and modification of WCF's is tempted by the proviso that such regulation shall neither discrinnmate among providers of personal wireless service nor prohibit, or have the effect of prohibiting, the provision of personal wireless service. ,fie 47 U.S.C. § 322 (c) (7) (B) (i). Furthermore, the TCA re that " 11M decision...to deny a =angst to War-& construct or modify NICT'sI be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332 (c) (7) (B) (iii). (emphasis supplied) These "two federal limitations — one dealing with barns and the other with.-substantial evidence— complement one another by ensuring that local law is both fair and is fairly admimistered." As such,when a local zoning authority frannes its zoning 1mizzi�metnts in a mane:that make,.tnem extremely difficult to &= it makes the locality more vulnerable to a claim that its zoning regime results in an effective ban on wireless service. Basically, the TCA gives local authorities the first say in dung wh= and how to construct WCFs; if, however, a local mWmrity's actions violate the provisions of the TCA, a court Inas the authority to order the locality to take-such steps as are ne=sary to grant the relief which the wireiess provider-had origuraIIy requested from the locality. The Court found that the Board of Appeals' denial of Omninoine s application for zoning relief did not violate;the substantial evid==zezp ire neat ..aF::.1t�t5•.Oi.'svv.':.:.:'uw:.:an..m.w.•.w........«.�........._.•....v:..v...•..:v.n::._t..t. .+w_w_.:•........w..nur.•a.:.�...e....,........w...�.............wv.........�.....�.......»..��............e.......�_.:«.w...................«•.......:.......:......._...w. FILzj�j Z&BAIEZ!, LLP Narrh Andover Zoning Board of Appeals August 31,2000 Page 4 of the TCA because the Board of Appeals'decision rested upon a reasonable legal interpretation of the By-Law. The Board of Appeals essentially held that the By_ Law does not permit the erection of WCFs an any parcel not within the Overlay District regardless of the facts and ciaoumstances. However,the Court also said that The Board of Appeals also enunciated an alternative ground for denymg Omnipomfs application for a special permit The Board of Appeals found that, even if it were inclined to find that Omnipoint's proposed use was a proper extension of a non- conforming use, the Board "would also find under Section 4.4 that ... such an extension would be `substantially more detrimental to the neighborhood' than the prior nanconfonzriag use..."Ict As the basis for this conclusion, the Board of Appeals relied on the testimony of a Imp number of town residents. This testimony may not rise to the level of substantial-evidence under the TCA- However, CAHowever, because the Court finds that the Board of Appeals' primary justification for denying Cmnipoint's request for a sp-sai permit is supported by substantial evidence, the Court need not reach this issue. (emphasis supplied) As you know,AT&T Wireless Systems has filed suits in the Federal District Court and Essex Superior CDurt challenging your denial of variances from the Town's Zoning Bylaw. I should point out that in your denial of several of AT&T Wireless' Systems specific requests for a variance,the Daly reason given for the denial was that the"required variance would be a deft to the neighborhood." Compare that to the above gaoted-statement by the Court relating to whether such a reason rises to the leve:of'substantial evidencr:`as required by the TCA- The CAThe Court also explained context of the effect of prohibiting pemonal wireless services: Under the TCA, local zoning authorities most ensure that neither their general policies nor their individual decisions prohibit or have XA &BAILN, UP �azthg Board ofAppeals , Page 5 the effect of prohibiting the provision of personal wireless services. 47 U.S.C. § 332 (c) M (B) 0 (Il). (-Me [TCAJ bars local regulation that prohibits or has the effect of Prohibiting personal wireless services, not the facilities that provide those services.") Local andwrities canmot satisfy this mandate by simply allowing for the erection of some WCFs and thus ensuring that wireless services are available merely somewhere within the relevant ,jurisdiction even though such "services are not comprehensively available throughout the jurisdiction. As such,, "local zoning policies and decisions have the effect of prohibiting wireless commzmication services if they result in `significant gaps' in the availability of wireless services [within the jurisdiction]." In other words, an effective prohibition can exist even where a town allows for the erection of WCFs but subject to criteria which would result in incomplete wireless services within the town, i-e., significant gaps in coverage within the town. For instance, a town would violate the TCA if it allowed WCFs to be built = only one parcel within the town if that parcel was situated in such an area that the wireless coverage generated from that parcel was msufncierzt to provide coverage throughout the town. Similarly, a town would violate the TCA. even if it permitted numerous WCFs throughout the town, but subject to such height restrictions that the wireless coverage provided could not bridge the distance between the WCFs. Conversely, a town which instituted a complete ban on WCFs would not necessarily be -in violation of the TCA.; under the right set of conditions, it maybe possible that WCFs which already exist outside of that town would provide an adequate level of wireless cove -age within that'toWm In essence, it is not the size or the number of WCFs erected within a town which mars, it is the extent or of the personal wireless services within a town which matters. (citations oroit6ed) The Court decided that Omnipoint, therefore,nerd not prove that the . Towu has altogether banned WCFs or that wireless se<vicrs are not available at all within the Town. Omnipoint had to establish two elements in order to succeed on an five prohibition claim. F=t, C=ipomt had to estaolish;hat the Town's ..............:1'.'",1::.:..:.k:'"1i_w':iU'...._..... ....1"]:ff\':......_-tel"• :.::"!. - ..-....r...... ...... Lw..l:...,vl••;\,.!r.\`'\:1t.1:1f5:nufwi. w:iY-_..,wCti`3"ws...il1l'Ol`�ws:S�`t.':SL'a:^.•.ifil'wf :':",;'ti:::-.ru:l`Lvlfislsn+.....5':xS :KUIM`x`SL•\ei::...S..x�..a..1-.'!::..:.:11:_ihi>>li):;.,,..__...,,-.t.�..,.,. artYr Andover Zoning Board of Appeals August 3I, 2000 Page b zoning policies and decisions result in a significant gap in wireless services within the Town.-Omnipoint established that the unavailability of certain alternate land results in a significant gap in wireless services within the Town. A "gap"in wireless services exists"when a remote user of those services is unable to either connect with the land-based national telephone network, or to maintain a connection capable of supporting a reasonably uninterrupted mmumication." Omnipoint established that because the alternate land is-unavailable there is currently no WCF,within or without the Town,which provides wireless services to customers traveling through the northwest section of the Town. Therefore, a gap in wireless services exists within this section of the Town. Second, Omnipoint had to establish"from language or circumstances not just that [its] application[to erect a WCF to eliminate the demonstrated siguifzcant coverage gap] has been rejected but that further reasonable efforts ace so I*ely to be fruitless that it is a waste of time even to try." After reviewing the facts in the light most favorable to the Town,the Court concluded that Omnipoint carried its heavy burden and established that the Town's zoning policies and decision have the effect of prohibiting the provision of wireless services in violation of the TCA Omnipoint had-an expert who presented evidence relating to computer projections-of the gaps in wireless coverage. Tlie Town also presented testimony from an expert with regard to such computer projections- This decision would indicate that such expert (and costly) testimony will be the norm rather the exception in similar cases under the TCA. Omnipoint showed that the[alternate land]is=available for leasing by Omaipomt; that the unavailabtiity of the[alternate land]is beyond O.m ripoii's control; that the unavailability of the [land]results in a sigmficant gap in wireless services within the Town; and that this sigmficant gap cannot be elimmated within the couf nes of the Town's criteria for the placc:aent and motion of ,.:n'>•::•...,,. -...6'a:.^.n�_::u.::o:w:.e..::+,:..:.w:ow:,w::4.K:;_;aura=Yv:e:w.::..._ _ u.o +.. o +r........ .,,......_.., .. _. _�.... . .,` ......_,....,..............._.. vrth Andovei Zoning Board of Appeals August 31, 2000 Page 7 WCFs. Frntheanore, absent an amendment to the By-Law, Omninomt,s plan is the only feasible plan because Trace:y-s Towing is the only viable,non- r=deutially zoned parcel which would fill any substantial portion of the demonstrated gap. As such, Omnipoint showed that the Town's By-Law and the Board of Appeals' decision have the effect of prohibiting the provision of wireless services in violation of the TCA,Section 332 (c) (7) (B) () (II). Therefore the Court ordered that the Town of Lincoln,its officers,boards, commissions, departments and iosti an talitics, including the Lincoln Board of Appeals and Piaming Board,take all steps necessary,including,bort not limited to, the issuance of special permits and/or'va lances, as well as the issuance of -buildingpermits, to permit Omnipoint to erect a WCF. If the Town fails to take such action within the prescribed time, then the Court stated that it shall issue an- order g cm=ng Omnipoint the authority to exert said WCF at Tzacey's Towing. Please callif you have any questions, or if there is anything else you need. Very truly Yom f w Thomas J rhelis TJU:Iss Enciosuxes cc: Board of Selectmen Planning Board D.Robert Nicetta Heidi Grifn Mark Reis vimiam Scott URBEus, FmLDSTEEL&BAMIN, LU 155 FEDERAL STREET BOSTON,MAssACmJs=02110-1727 TacmAs J.Umam Telephone 617-338-2200 Andover Office ju@ufb.com Telecopier 617-338-0122 Telephone 978-475-4552 May 10, 2001 Heidi GriT Planning Director Town of North Andover 27 Charles Street North Andover,MA 01845 RE: ZONING BYLAW AMENDMENT—WIRELESS CONtM MCATION FACZ= Dear Heidi: With regard to Article 21 of the December 11, 2000 Special Town Meeting,which amended the Zoning Bylaw, your letter dated May 7, 2001 rertuested advice on the following: 1. Whether or not an applicant can apply for a variance from the Zoning Board of Appeals as to this setback requirement (minimum setback of 600' from the adjacent property line or properties which are either zoned far, or contain,residential and/or educational uses of any types . . .); or 2. If all applications in front of the Planning Board should simply be denied on the basis that they do not meet the criteria of the setbacks (if applicable) without the option of obtaining a variance. My response is as follows: 1. In my opinion, an applicant can apply for a variance from the D Zoning Board of Appeals as to the setback requirement pursuant to Section 10.4 t 8 �Q�fo Zoning Bylaw,which provides as follows: 2 - 2006 BOARD 0► URBE Is,FmLDs=&BAa2q, LLP HEmI GRuTN May 10,2001 Page 2 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 petitioner 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(1998132). 2. In my opinion,the applications in front of the Planning Board should not simply be denied on the sole basis they do not meet the criteria of setbacks. That may be stated as one of the reasons for denial but the denial should be in writing and supported by other substantial evidence contained in the written record. However,these issues do not exist in a vacuum. All of the foregoing must be tempered with a caveat that the various Town Boards must give due consideration to the restrictions placed upon those Boards by the federal Telecommunications Act of 1996. When Article 21 was discussed last December, I cautioned Town Meeting that in certain circumstances, the TCA could'trump decisions of local boards acting under a zoning bylaw, which in effect prohibit the providing of personal wireless service. Also, see my several prior letters on the TCA_ For your convenience,I enclose my August 31, 2000 letter to the Zoning Board of Appeals. _,... ..: vn.. ,.t:e. ':vii,v.............. .,v:�el•v'+,v,.:•.i`.,.':u�., ........, a.�...m,.u.�.ed._L..w-.e.>, i y URBELIS,FIELDSTEF,I;& BAMN, LLP HEmi GRIFFIN May 10, 2001 Page 3 I an also enclosing fifteen copies of this letter. Could you please distn-bute it to the Planning Board and Zoning Board of Appeals. . Please call if you have any questions. Very truly yours, Thomasrbelis Enclosures TJU/lah cc: Board of Selectmen(w/enc.) Mark Rees (w/enc.) D. Robert Nicetta(w/enc.) Michael McGuire(w/enc.) Board of Appeals (w/enc.) Planning Board(w/enc.) URBELIS,FIELDSTEEL&BAILIN, LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 - THOMAs I URBEius Telephone 617-338-2200 Andover Office E-MA&.t u@&b.com Telecopier 617-338-0122 Telephone 978-475-4552 August 10, 2000 Terri Ackerman Acting Town Manager North Andover Town Offices 120 Main Street North Andover, MA 01845 RE: Telecommunications Towers Dear Terri: You inquired about general guidelines for a zoning bylaw moratorium on towers. With regard to such a moratorium, the following is from the Massachusetts Attorney General's Office: "Following passage of the Federal Telecommunications Act of 1996, some cities and town temporarily delayed decisions on phone tower permits through local moratoria while city/town officials developed ordinances or by-laws for reviewing permit applications. As a general rule, when requesting approval of moratorium by-laws under state law, towns should include in the by-law statements as to: (1) why the moratorium is necessary; and (2)what the town intends to accomplish during the moratorium to prepare itself to rule on applications for phone tower permits. (emphasis supplied) Since the Town has already adopted a cell tower bylaw, there would have to be some valid purpose for the moratorium. r:�wos��Worim-anoo��+cot,esplactaa-�o�K dx URBELIS, FIELDSTEEL&BAILIN, LLP August 10, 2000 Page 2 Please call if you have any questions, or if there is anything else you need. Very truly yours, �'U•C1.�i.or ` � s Thomas J. U elis TJU:Iss cc: Board of Selectmen William Scott Planning Board URBEUS, FIELDSTEEL&BAILINLLP 155 FEDERAL,STMT ' BOSTON, MASSACHUSETTS02110-1727 THomAs J.URBEus Telephone 617-338-2200 E-MAa.:tu@ufb.com Telecopier 617-338-0122 Andover Office Telephone 978-475..4552 July 27, 2000 Robert P. Ford, Esq. 555 Turnpike Street, Suite 41 North Andover, MA 01845 RE: Wireless Facilities Zoning Bylaw Dear Mr. Ford: I am writing in response to your letter dated July 21, 2000, in which you request clarification regarding siting and installation of telecommunications facilities. On February 1, 1996 Congress enacted the Telecommunications Act of 1996(TCA). The Act made substantial changes to Federal regulation of telecommunications in recognition of, and to technologies nationwide, facilitate the spread of,new oberts v. Southwestern Bell Mohile SInc., 429 vst�� Mass. 478, 479 (1999) (relating to decision of the Littleton Planning Board). Title 47 U.S.C. §332(c)(7)provides as follows: "(A) General authority "Except as provided in this paragraph,nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction,and modification of personal wireless service facilities. "(B) Limitations The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof_- shall not unreasonably discriminate among providers of functionally equivalent services; and alfo�d7-2bler. D . F d 2 - 2006 60ARD OF APPEALS XIB-,�Ljls, IELDS; EFL&. AIIXST,T_T P July 27, 2000 Page 2 "(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. "(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. "(iii)Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. "(iv)No State or local government or instrumentality thereof may regulate the placement, constriction or modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. "(v)Any person adversely affected by any final action or failure to act by any State or local government or instrumentality thereof that is inconsistent with this subparagraph may,within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or instrumentality thereof that is inconsistent with clause(iv)may petition the Commission for relief." Substantively, local regulation may not`unreasonably discriminate" among Personal Wireless Services (PWS)providers,nor may it"prohibit or have the effect of prohibiting" the provision of PWS services. 47 U.S.C. §332(c)(7)(13)(i). There may be no regulation of facilities "on the basis of the environmental effects of radio frequency emissions," other than as required by the Federal Communication Commission(FCC). . 47 U.S.C. §332(c)(7)(B)(iv). Procedurally, a local zoning authority must act"within a reasonable period of time" on any request regarding a PWS facility, "taking into account the nature and scope of such-request." . 47 U.S.C. §332(c)(7)(B)(ii). Any local authority decision"to deny a request"to site such a facility must be"in writing and �LS, FIELDST�pL 8c BgII IN, LLP July 27, 2000 Page 3 supported by substantial evidence contained in a written record."47 U.S.C. §332(c)(7)(13)(iii), Congress further provided that expedited redress be available . in either Federal or State court to ga]ny person adversely affected"by an act of a local zoning authority"that is inconsistent with this subparagraph."47 U.S.C. §332(c)(7)(13)(v)•t Subject to these enumerated constraints, the TCA recognizes and protects local autonomy regarding PWS facility placement. Congress was explicit that the TCA does not preempt State and local authority with respect to any zoning and land use issues pertaining to PWS facilities, other than as delineated in §332(c)(7) of the TCA. Roberts, supra at 481-482, 47 U.S.C. §332(c)(7) is a deliberate compromise between two competing aims -- to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers. Amherst_N K v Omnipoint Communications, 173 F.3d 9, 13 (1st Cir. 1999). If a town's criteria for granting a permit to build wireless telephone service facilities or administration of those criteria effectively preclude towers no matter what the carver does, they may amount to an effective ban on provision of personal wireless services,in violation of the Telecommunications Act, even though substantial evidence will almost certainly exist for the denial_ Amherst, Mara, at 14. I trust this responds to your inquiry. Please call if there is anything else you need, or if you have any questions.. Very truly yon, q3 TJU:Iss Thomas J rbelis cc: Board of Selectmen Board of Appeals Planning Board Terri Ackerman Heidi Griffin D. Robert Nicetta William Scott 'The TCA does not provide for expedited judicial review of any local zoning authority act that is"consistent" i 47 U.S.C. §332(c)(7xv).&b�,suat 482 a with 6. ts provisions. Cf. +ter5'7' .� - v Y400 Osgood Street North Andover,Massachusetts 01845 Raymond Santilli Interim Community Telephone (978)688-9541 0 Fax (978)688-9542 Cs+ Development Director r ci Any appy shall be filed within Notice of Decision y=cn 10 M (20)days after the date of filing Year 2005 == W �c< of this notice in the office of theG� �� -0 :nTn Mass. Gen. L,ch_ ;,.-� Town Clerk,per Property at: 300 Chestnut Street 40A,§17. - r N c=s r�= NAME: Cingular Wireless LLC,580 Main Street, HE February 8,April 12,May 12, Bolton,MA 01740 June 14,July 12,&August 9,2005 ADDRESS: for premises at: 300 Chestnut Street PETITION: 2005-001 North Andover,MA 01845 TYPING DATE: August 11,2005 The North Andover Board of Appeals held a public hearing at its regular meeting on Tuesday,August 9,2005 at 7:30 PM in the Town Hall top floor meeting room, 120 Main Street,North Andover,Massachusetts upon the application of Cingular Wireless LLC,580 Main Street,Bolton,MA 01740,for premises at:300 Chestnut Street, North Andover,requesting a dimensional Variance from Section 8,Paragraph 8.9(3xcxv)of the Zoning Bylaw, minimum requirements of the distance to lot lines,in order to install additional antennas on the existing antenna tower. Said premise affected is property with frontage an the East side of Chestnut Street within the R-3 zoning district The legal notices were published in the Eagle Tnbime an January 24&January 31,2005. The following voting members were present: Ellen P.McIntyre,Richard J.Byers,Thomas D.Ippolito,and Richard M Vaillancourt. The following con-voting members were present: Joseph D.LaGrasse and David R. Webster. Upon a motion by Richard J. Byers and2°d by Richard M.Vaillancourt,the Board voted to grant the dimensional Variance from Section 8,Paragraph 8.9(3)(cxv),minimum requirements of the distance to the lot lines in order to install additional antennas on the existing antenna tower. Voting in favor of the motion: Ellin P.McIntyre and Richard J.Byers. Voting to decry the motion: Thomas D.Ippolito and Richard M.Vaillancourt The Board finds that the motion for the Variance petition failed to receive the required super majority of four votes, per Mass.Gen.L ch.40A §15. The Board finds that the applicant was requested to address the issue of hardship in general as well as hardship as it pertains to soil}shape,and topography during the April 12,2005 hearing. The applicant provided the May 6,2005 written response and the May 12,2005 verbal response during the hearing to the issue of hardship as it pertains to gap coverage,but not to soil,shape and topography. The Board fords that owing to circumstances relating to the soil conditions,shape,or topography of the land or structures,and especially affecting such land but not affecting generally the zoning district in which it is located,a literal enforcement of the dimensional provisions of the ordinance would not involve substantial hardship,financial or otherwise,to the petitioner,that desirable relief may not be granted without substantial detriment to the public good,and that desirable relief may not be granted without nullifying or substantially derogating from the intent or purpose of this Bylaw as stated in Section 1 and Section 10,Paragraph 10.4. Town of North Andover Board of Appeals, ATTEST: �� ) A True Copy Ellen P.McIntyre, Town Clem Decision2005-001. M98.CP2. 7 } y I _ a �1 Board of Appeals 978-688-9541 Building 97888-9545 Conservation 978-688-9530 Health 97&688-9540 Planning 978-688-9535 FE 30ARQ OR APNLAL URBELIS &FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 February 3, 2006 North Andover Zoning Board of Appeals North Andover Town Offices 400 Osgood Street North Andover, MA 01845 RE: NEW CINGULAR WIRELESS PSC,LLC vs. NORTH ANDOVER ZONING BOARD OF APPEALS,ET AL. ESSEX SUPERIOR COURT No.ESCV2005-01580-B Dear Members of the Board: Enclosed please find a copy of the Judgment entered in the above-referenced case. The Federal case is still pending. Very truly yours, Thomas . Urbelis TJU/kmp Enclosure cc: Joyce Bradshaw (w/enc) n D . F E e b - 2006 BOARD OF APPEALS s:\wp5l\work\n-andove\corresp\zoning board.ltr2-cingular.doc Commonwealth of Massachusetts County of Essex The Superior Court CIVIL DOCKET#: ESCV2005-01580-B RE: New Cingular Wireless pcs LLC v Town of North Andover et al TO: Thomas J Urbelis, Esquire Urbelis Fieldsteel & Bailin 155 Federal Street Boston, MA 02110 NOTICE OF DOCKET ENTRY You are hereby notified that on 02/01/2006 the following entry was made on the above referenced docket: JUDGMENT: Judgment of Dismissal Pursuant to M.R.C.P. 41(a)(2). That the complaint of the plaintiff, New Cingular Wireless PCS LLC, be and hereby is DISMISSED as to the defendants, Town of North Andover, Massachusetts, Board of Appeals of the Town of North Andover, Ellen McIntyre, Richard J. Byers, Albert P. Manzi III, Joseph D. LaGrasse, David R. Webster, Daniel S. Braese, Thomas D. Ippolito, Richard M.Vaillancourt,as they are members and associate members of the Board, without costs; and, that the plaintiff may not re-file in the Superior Court without first requesting a further hearing before the defendant Zoning Board of Appeal. Dated 2/1/06 (Richard Welch, III, Justice). Copies mailed February 01, 2006 Dated at Salem, Massachusetts this 1st day of February, 2006. Thomas H. Driscoll Jr., Clerk of the Courts BY: JoDee Doyle Assistant Clerk Telephone: (978) 462-4474 � WE FEB b - 2006 BOARD OF APPEALS cvdgeneric_2.wpd 599794 judgm doylejod Page 1 of 1 Glennon, Michel From: Thomas J. Urbelis [tju@uf-law.com] Sent: Tuesday, February 14,2006 11:13 AM To: Glennon, Michel Cc: Ellen McIntyre Subject: Cingular Mich........since there is nothing new to report, I do not see the need for an executive session tonight, unless Ellen thinks one is necessary.Therefore, unless I hear to the contrary, I will not plan on attending the Board's meeting tonight.Thanks. Tom Urbelis. r 2/14/2006 Hello,Atty. Urbelis; If the case is remanded to the Zoning Board, could you guestimate pre or post 7-1-06 (hoping for FY 07)? We are getting close to the end of the fiscal year when the accounting office takes all unspent monies. Mich. From: Daley, Lincoln Sent: Monday,April 10, 2006 9:44 AM To: 'Thomas J. Urbelis' Cc: Ippolito, Mary; Glennon, Michel Subject: New Cingular Wireless PCS LLC V. Town of NA Tom: I received your letter dated April 6, 2006 regarding the New Cingular Wireless PCS LLC V. Town of NA. Cingular has filed for a special permit with the Planning Department and is scheduled to go before the Planning Board on April 18th. In reading the April 5, 2006 letter from Anderson& Kreiger LLP,the federal case is still pending, but they are willing to settle if a special permit is granted by the Planning Board. How would you advise to the Planning Board to proceed with this Special Permit Application? Lincoln Daley Town Planner Town of North Andover Phone-978-688-9535 Fax-978-688-9542 Glennon, Michel From: Daley, Lincoln Sent: Monday,April 10, 2006 9:44 AM To: 'Thomas J. Urbelis' Cc: Ippolito, Mary; Glennon, Michel Subject: New Cingular Wireless PCS LLC V. Town of NA Tom: I received your letter dated April 6, 2006 regarding the New Cingular Wireless PCS LLC V. Town of NA. Cingular has filed for a special permit with the Planning Department and is scheduled to go before the Planning Board on April 18th. In reading the April 5, 2006 letter from Anderson &Kreiger LLP, the federal case is still pending, but they are willing to settle if a special permit is granted by the Planning Board. How would you advise to the Planning Board to proceed with this Special Permit Application? Lincoln Daley Town Planner Town of North Andover Phone-978-688-9535 Fax-978-688-9542 N' C� 1u �l � q�H 1 U 2006 D► BOARD OF APPEALS i RECEIVED URBELIS &FIELDSTEEL, LLP 155 FEDERAL STREET APR 1 2000- BOSTON, 006BOSTON,MASSACHUSETTS 02110-1727 NOR-i r7 t\!L t,v: < PLANNING DEPARTMENT Tno m\s.l.Uim-i.is Telephone 617-338-2200 Andoecr e-mall tju(c&,ut=law.com Telecopier 617-338-0122 Telephone 978-475-4552 April 6, 2006 North Andover Planning Board Town of North Andover 400 Osgood Street North Andover, MA 01845 RE: NEW CINGULAR WIRELESS PCS LLC v. TOWN OF NORTH ANDOVER, ET AL. Dear Members of the Board: Enclosed please find a copy of the order of a letter dated April 5, 2006 from Attorney Douglas Wilkins. As always, please call if you have any questions. Very truly yours, Thomas . Urbelis TJU:kmp Enclosure cc: Board of Selectmen (w/enc) Mark Rees (w/enc) APR ; - 2006 BOARD OF APPEALS w\w,:I`a.oil;\n-arwut\cwcsppl;uming.lwmJ-cingular.Juc II i�Il 'u, .� ... iv.�v a w vl ��� vonn A1VLr,KJU1V d[ l'KK1uCK LLr 191UUl illi r'i I;IIdi ANDERSON KREIt-'rnULALLP DOUGLAS h.Wnac Ns dwilkins Q':ui J�r�iml<rcigcr.con April 5,2006 BY Mail and Fax 617) 338-0122 Thomas J. Urbelis, Esq. Urbelis &Z:ieldsteel LLP 155 Federal Strcet Boston,MA 02110 Re: New Cingular Wireless PCS LLC v. Town of North Andovcr, et al. Civil Action Docket No.: 05-1580B Dear Tom: I have received your letter dated April 4, 2006. Apparently,there was some misunderstanding during our phone conversation of April 3 (and in prior phone calls). To my mind, I had already responded orally to you on the phone regarding the proposals in your January 25 and March I letters, but let me bir c:,;ar, :n writing, this time. Cingular has applied for a special permit from the Planning Board, because the Town was not willing to agree to issue a building permit in settlement of the federal suit. Cingular is not prepared to resolve the fcdcral lawsuit without being sure that a building permit is to be granted imminently and without need for additional coning relief. If the special permit is issued, and not appealed, I anticipate that Cingular would authorize settlement of the federal case on the basis of a consent judgment that the variances be issued without further bearing(which is what I believe you proposed in January). Cingular is also still willing to settle on the basis of a consent decree for a building permit. Since you have not agreed to the latter, and the former lies (hopefully) in the future, I suggested to you on Monday that the quickest way to resolve this matter is for the Planning .Board to grant a special permit as soon as possible. C R W ASR , - 2006 BOARD OF APPEAL%%3 Thorndike Street • Ciinbridge, Mrd 02141-1764 • (617) 252-6575 • rax: (617) 252-6899 6� Pua V wt :/dnl paps; •::� �o�LV VO 1J-40 rAA oil 404 004V A UZA.7Vil a +>.+...+.�+.•� +�+++Thomas J.J.Urbelis, Esq. April 5, 2006 Page 2 I trust this answers your questions,but let me know if anything is unclear. S erely, D ug as H.Wilkins c: Jay Perez, Esq. Kevin Mason Stephen D. Anderson, Esq. Scott Lacy, Esq. \\fileserver\dam\DOCS\CIN\M AlNonhAndovere:hestnul\L\Urbeli�005,doe ANDERSON`J KREGER Lu' " PriuluJ uncyJ��o(rV URBELIS &F'IELDSTEFL,LLP 155 FEDERAL STREET BOSTON, MASSAC.-,:USETTS 02110-1727 TFic)%1,,s 3. ��RBE-IS Telephone 617-338-2200 Andover e-mail tjuCuf=law.com Telecopier 617-338-0122 Telephone 978475-4552 May 1., 2006 North Andover Zoning Board of Appeals Noah Andover Town Offices 400 Osgood Street North Andover, MA 01845 1E: NEW CINGULAR WIRELESS PCS LLC VS. TOWN OF NORTH ANDOVER Dear Members of the Board: Enclosed please find a copy of Joint Scheduling Conference Statement which was i;cd and accepted by the Court at a Status Conference on April 27, 2006. Also enclosed sere ccOiea of': 1. Letter dated January 25, 2006 from me to Attorney Douglas Wilkins along: with a draft Agreem€:fist for Jud� cn'.- an: 2. Letter dated April 5, 2006 from Attorney Douglas Wilkins. Please call if you have any questions. Very truly yours, Thomas J. U elis TJU/kmp Enclosure cc: Board of Selectmen (w/enc) Mark Kees (w/enc) Curt Bellavance (w/enc) Gerald Brown (w/enc) Yi 2 - 2006 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 05CV 11841 NG NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) TOWN OF NORTH ANDOVER, MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH 1 ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ) ALBERT P. MANZI III, JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIEL S. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. VAILLANCOURT,) as they are members and associate members of the Board, ) Defendants. ) JOINT SCHEDULING CONFERENCE STATEMENT Pursuant to the Court's Notice of Scheduling Conference dated March 27, 2006, and pursuant to Local Rule 16.1(D), all parties submit the following joint statement: I. STATEMENT OF THE PLAINTIFFS' CLAIM New Cingular Wireless PCS LLC ("Cingular") appeals under both federal and state law from the North Andover Board of Appeals' ("Board") denial, by a 2—2 vote, of Cingular's application for a variance for a proposed wireless communication facility. The proposed antennas would be on an existing, guyed, orange-and-white-striped lattice communications tower at 300 Chestnut Street,North Andover, MA (also known as 0 Chestnut Street, Assessors Map 98C, Lot 2) ("Site"). The proposed facility would cover over 1.2 square miles of an undisputed gap in coverage on a major road and surrounding neighborhoods. The Board filed its Decision with the North Andover Town Clerk on August 23, 2005. Cingular alleges that the denial violates Section 704 of the Telecommunications Act of 1996, Pub. L. No. 104-104 ("the d U 1 tvtti r, - 2006 BARD OF APPEALS Telecommunications Act"), codified at Section 332(c)(7) of the Communications Act of 1934, 47 U.S.C. §§ 151-691, and the Massachusetts Zoning Act, M.G.L. c. 40A, § 17. The Defendants oppose these contentions and contend that the variance decision is within their lawful regulatory authority. H. AGENDA At the scheduling conference, the parties believe the following matters should be addressed: A. Settlement Possibilities Cingular has made a written settlement proposal to the Defendants orally and in writing most recently, by letter dated Apri15, 2006. The defendants have responded to the offer. At present, the parties are awaiting the outcome of Planning Board proceedings for special permit at the same Site. Depending upon the outcome, the parties anticipate that they either will settle this case, or that Cingular will move to amend the complaint to include the Planning Board's decision. B. Principal Issues in Contention The principal issues in contention are the following: 1. Whether the Board's denial of Cingular's application for variances and other relief at the Site "prohibit[s] or ha[s] the effect of prohibiting the provision of personal wireless services," in violation of§ 332(c)(7)(B)(i)(II) of the Telecommunications Act. 2. Whether the Board's denial "unreasonably discriminates] among providers of functionally equivalent services." 47 U.S.C. § 332(c)(7)(B)(i). 3. Whether the Board's denial of Cingular's application is supported by substantial evidence, as required by § 332(c)(7)(B)(iii) of the Telecommunications Act. 2 4. Whether the denial was unlawfully "based on the environmental effects of radio frequency emissions" in violation of 47 U.S.C. § 332(c)(7)(B)(iv). 5. Whether the Town's Bylaw,requiring a 600 foot setback for wireless facilities, is unconstitutional on its face and as applied to this application. 6. Whether the Board exceeded its authority under G.L. c. 40A in finding that the criteria for a variance and special permit were not met in this case. C. Proposed Pretrial Schedule and Plan for Discovery JOINT DISCOVERY PLAN Plaintiffs Discovery The plaintiff proposes phased discovery, to permit(1) conclusion of the pending Planning Board proceedings, and(2) if necessary, full resolution of the substantial evidence claim through review on the record, before engaging in full discovery. The plaintiff would also argue discrimination and other claims at that stage, by moving for summary judgment, reserving its right to proceed on extra-record facts if summary judgment is denied. Other claims in this case include discrimination, effective prohibition and consideration of health effects under § 332(c)(7)(B)(i)(II) of the Telecommunications Act. Such claims are not decided upon mere record review, but are entitled to de novo review on the facts presented to this Court. See National Tower, LLC v. Plainville Zoning Board of Appeals, 297 F.3d 14, 24 (1st Cir. 2002)("On the `effective prohibition' issue, district courts may take evidence beyond the record"); Town ofAmherst, New Hampshire v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 16 &n. 7 (1st Cir. 1999)("whether the town has . . . created a general ban involves federal limitations on state authority, presenting issues that the district court would resolve de novo and for which outside evidence may be essential."). See generally Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir. 2002). (a) Discovery Pleadings In the event that the matter is not resolved by settlement, or by argument on the record, the plaintiff anticipates filing interrogatories, requests for production of documents and requests for admission on the schedule set forth below. (b) Depositions The Plaintiff may take the following depositions after receiving the Defendants' discovery responses and before serving Requests for Admission: Town Administrator, Town of North Andover 3 Rule 30(b)(6) deposition of the Board and of the Town Persons presently unknown who may be identified in.interrogatories or otherwise as having knowledge about enactment of the challenged Bylaw provisions Town Planner or official performing that Function Town Hall North Andover, MA Building Inspector Town Hall North Andover, MA Keeper of the Records Town Hall North Andover, MA (c) Plaintiffs'Experts At the present time, Cingular Services anticipates presenting expert testimony from the following witnesses: Scott Pollister New Cingular Wireless PCS, LLC Stan Sherman SRS Engineering Applications Inc 30 Twin Ponds Drive, South Dartmouth, MA 02748 Nate Godfrey and/or George Valentine Newport Appraisal Group 790 Aquidneck Avenue Middletown RI 02842 (d) Depositions of Defendants' Experts Cingular anticipates deposing any experts put forward by the Defendants. Plaintiffs Proposed Pretrial Schedule: EVENT DEADLINE Defendants file the certified record June 30, 2006 4 Substantial Evidence Briefs/Cross-Motions August 15, 2006 for summary judgment on the record Response Briefs September 7, 2006 Non-Expert Discovery Deadline February 28, 2007 Plaintiffs' Expert Report April 2,2007 Defendants' Expert Report May 2, 2007 Expert Deposition Deadline June 15,2007 Dispositive Motions Filed on remaining July 30, 2007 claims Oppositions to Dispositive Motions August 31, 2007 Pretrial Conference November 20, 2007, or as soon thereafter as the Court's schedule allows Trial December, 2007 Defendants' Discovery (a) Discovery Pleadings In the event that the matter is not resolved by settlement, or by argument on the record, the defendants anticipate filing interrogatories, requests for production of documents and requests for admissions on the schedule set forth above. (b) Defendants' Experts At the present time, the Defendants anticipate presenting expert testimony from the following witnesses: To be determined. (c) Deposition of Plaintiffs' Experts (d) Depositions The defendants may take the following deposition after receiving the plaintiff s discovery 5 responses and before serving Requests for Admissions: Rule 30(b)(6) deposition of the plaintiff. Defendants anticipate deposing Plaintiffs experts, in the event that the case is not fully disposed of on the record of proceedings and a motion for summary judgment. III. ALTERNATIVE DISPUTE RESOLUTION A. Plaintiff s Position The Plaintiff has considered various alternative dispute resolution procedures and sets forth its position as follows: PROCEDURE PLAINTIFF'S POSITION Mediation Yes Mini-Trial No Summary Jury Trial No Trial by Magistrate No B. Defendants' Position The Defendants have considered various alternative dispute resolution procedures and set forth their position as follows: PROCEDURE DEFENDANTS' POSITION Mediation Yes Mini-Trial No Summary Jury Trial No Trial by Magistrate No V. CONTEMPLATED MOTIONS A. Plaintiffs Contemplated Motions 6 The plaintiff anticipates filing the following motions: 1) Motion to Amend Complaint if necessary(particularly if the Planning Board denies a special permit); 2) Summary Judgment Motion or Motion for Preliminary Injunction; 3) Discovery Motions as Necessary, including motion for protective order; 4) Motion for a View; 5) Motion in Limine. B. Defendants' Contemplated Motions The defendants anticipate filing the following motions: 1) Motion to Amend Answer if necessary; 2) Summary Judgment Motion or Motion for Judgment on the Pleadings; 3) Discovery Motions as Necessary, including motion for protective order; 4) Motion in Limine. VI. PLAINTIFF'S CERTIFICATIONS Signature below by counsel indicates that counsel has informed his client (by email) as follows: (a) with a view to establishing a budget for the costs of conducting the full course— and various alternative courses—of the litigation; and (b) to consider the resolution of the litigation through the use of alternative dispute resolution programs such as those outlined in Local Rule 16.4. 7 VII. DEFENDANTS' CERTIFICATIONS Defendants' counsel.has conferred with defendants regarding alternative dispute resolution and a budget for the litigation and will file their certifications under separate cover at or before the Scheduling Conference. THE PLAINTIFF, THE DEFENDANTS, By its Attorney, By their Attorneys, /s/ Douglas H. Wilkins Stephen D. Anderson, BBO #018700 Thomas J. Urbelis Douglas H. Wilkins, BBO #528000 Urbelis & Fieldsteel, L.L.P Scott Lacy, BBO #633323 155 Federal Street Anderson& Kreiger LLP Boston, Massachusetts 02110 43 Thorndike Street Cambridge MA 02141 617-338-2200 617-252-6575 Dated: April 27, 2006 CERTIFICATE OF SERVICE I certify that I served a copy of the foregoing on the defendants by mailing copies first-class mail,postage prepaid,to their counsel of record listed below on this20th of April,2006. /s/Douglas H. Wilkins Douglas H.Wilkins att\North AndoverChestnutlit\p\jointstatementfinal.wpd 8 `f URBELIS &FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.UR13ELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 January 25, 2006 Douglas H. Wilkins, Esquire Anderson &Kreiger, LLP 43 Thorndike Street Cambridge, MA 02141-6575 RE: NEW CINGULAR WIRELESS PCS LLC V. TOWN OF NORTH ANDOVER,ET AL. CIVIL ACTION No. 05-11841 NG Dear Doug: Enclosed is a draft of an Agreement for Judgment which has not yet been presented to the Zoning Board of Appeals. If it is acceptable to your client, I am prepared to recommend its approval to the Zoning Board of Appeals. The draft which you submitted to me was far too encompassing v.rith regard. to what your client actually requested from the Zoning Board of Appeals, which request was limited to a variance from the setback provisions. The Planning Board (which is not a party to this litigation) is the special permit granting authority for wireless communication facilities_ and your client has not yet applied to that Board for a permit. However, the enclosed draft would settle this litigation and result in the granting of the variance which is what your client requested from the Board of Appeals. I look forward to hearing from you. Verytrulyyours, Thomas J. Trbelis TJU/kmp Enclosures NJ Alt -1210 016 D BW@-QF-tlDR1PZAUi,s 1tr2.doc • F UNITLD STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 05CV 1 l 841 NG NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) "GOWN OF NORTH ANDOVER, MASSACHUSETTS., ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS., ) ALBERT P. MANZI III, JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIELS. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. ) VAILLANCOURT, as they are members and associate ) Members of the Board, ) Defendants ) AGREEMENT FOR JUDGMENT WHEREAS New Cingular Wireless PCS, LLC ("Cingular"), applied to the Zoning Board of Appeals (the "Board") of the Town of North Andover, Massachusetts (the "Town") for a dimensional variance from the setback provisions of Section 8, Paragraph 8.9(3)(c)(v) of the Zoning Bviaw, minimum requirements of the distance to lot lines, in order to install additional antennas on the existing antenna tower off Chestnut Street, North Andover, MA as shown on Assessors Map 98C, Lot 2 ("Site"). WHEREAS the Board issued a Decision, filed with the North Andover l'ovvri Clerk on August 23,2005 (the "Decision"). WHEREAS the Decision, by a 2-2 vote, denied the request for a variance. for CingUlar's proposed facility. WHEREAS, Cingular timely appealed the Decision., under both Section 70=1 of the 1'eleeommunications Act of 1996, Pub. L. No. 104-104 ("the Telecommunications Act"), codified at Section 332(c)(7) of the Communications Act of 1934,47 D.S.C. §§ 151-691. and \.lass. Gen.Laws c. 40A, 5 17. Nrur - 2006 D ramie - �__ WHEREAS, without any admission of fact, law or liability. Cln`,tular title] the Board of Appeals agree that it is in their best interests to settle this litigation by (a) rcversiny, the decision Of the. Board denying the Variance, and (b) granting the requested relief\.vith certain conditions imposed upon the Variance to be issued under this Agreement for Judgment and the Judgment entered pursuant hereto. WHEREAS, the parties agree that the following conditions should be imposed upon the Variance to be issued under this Agreement for Judgment and the Judgment enterccl pursuant hereto: (1) The facility must be installed upon the lattice tower at the Site, substanti<<lly as shown on the plans submitted to the Board and approved by this Agreement for Judgment (and the accompanying Rldgn�ent) and any necessal'y construction drawings to implement the same; provided however that the plans may be modified to conform to requirements imposed by applicable law or by ether Boards or Officials of the Town of North Andover. (2) The existing height of the lattice tower structure shall not be IncriCascd by virtue of this installation (except that nothing in this Agreement or the Judgment itself shall preclude the Board from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Agreement and the Judgment imposes no obligation to approve such Lu; application). (3) Upon request of the Board, Cingular or its contractor must paint or otherwise cause, and maintain, the witennas to reasonably match the color o�'ti>e existing tower. (4) Cingular ri;ust obtain a special permit and building permit prior to installing the additional antennas. WHEREAS, without any admission of fact, law or liability, and solely for purposes of settling this litigation, Cingular has proposed to construct and operate its facility, in accordance with the conditions set forth in the preceding paragraph, and. subject only to revisions that rellect those conditions. substantially in accordance with the following pians prepared by Clough Harbour & Associates LLP and any construction drawings necessary to effectuate the same ((he "Facility"): DRAWING NO. TITLE REVISION DATE TO1 Title Sheet 12/23/04 COLA Comprehensive Site Plan 12/23/04 CO1B Adjoining Structures Plan 4/28/05 C01C Adjoining Structures Plan 7/7/05 CO1 Site Plan 12/23/04 CO2 Tower Elevatiovis & Details 12/23/04 t 0111 I Structural Details 12:23/04 i C04 I Structural Details 12/23/04 C05 I Structural Notes 12/23/04 E01 Power & Telephone Plan 12/23/04 E02 Grounding Plan 12/23/04 i E03 Electrical Details 12/23/04 E04 Electrical Details 12/23/04 I E05 ? Electrical Details 12/213/04 I I J ;t I DRA WING NO. TITLE REVISIUN i E06 Electrical Specifications I 12/23/04 WHEREAS, the Parties agree that the proposed Judgment shall allow fol• the ,rant of the Variance, with the terms and conditions stated above. Nothing herein shall obviate the need for Cingular to obtain a building permit from the North Andover Building Inspector or a special permit or other non-zoning related permit from any local, state, or other authority. WHEREAS, there is no just cause for delay, and a remand to the Board would serve no useful purpose. NOW THEREFORE, the parties, through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment (in the form submitted herewith) as follows: A. Counts I and 11 On Counts I and II of the Complaint, without any admission of fact. !aw or 1 nhi]itl, ansa. solely for purposes of settling this litigation, the parties through their duly Authorized counsel, stipulate and agree to the entry of the !'Mal Judgment lin the Iorm submitted herewith as Exhibit A) in favor of the Plaintiff such that tike Decision shall be and hereby is (a) reversed to the extent it denied the requested variance as petitioned for Cingul<r's proposed Facility, (b) amended and modified to grant said variance, With file above conditions. for the proposed Facility, subject to the following conditions, \vh1ch imiy be m0diiieci only pursilan; to properly noticed ToNmn zoning proceedings: 1. The facility must be installed upon the lattice to\•ver at tlhe Site. substantially as shown on the plans submitted to the Board and approved, Im, this Agrcemcrit for Judgment (and the accompanying Judgment) and ani; necessary construction drawings to implement the same; provided however that the !.darns may be a gyp?;.wor�.n-.:ndovc.cinuulana_rccmcm for judmeu�-cie:vn'doe modified to conform to requirements imposed by applicable lav or by Other Boards or Officials of the Town of North Andover. 2. The existing height of the lattice tower structure shall not be increased by virtue of this installation (except that nothing in this Agreement or the Judgment Itself shall preclude the Board from approving a taller height LIPOII app!iCatiOn dLIIY submitted under the Town's zoning ordinance; aiid this A-reeincilt and the Judgment imposes no obligation to approve such an application). 3. Upon request of the Board, Cingular or its contractor must paint or otherwise cause, and maintain, the antennas to reasonably match the color of the existing tower. 4. C11101.11ar must obtain a special permit and building pei-MIL prior to installing the .. additional antennas. C. Other COLInts and Actions The parties further stipulate and agree that Counts 111, IV, V. VI. V I I and VIII shall be dismissed without costs. The parties agree that, upon the entering Or this judgment CIrIg-1.11211-Will dismiss the companion state court action, New Cingular Wireless v. Town of North Allclover, Essex Superior Court No. 05-1580B. D. General Provisions The parties further stipulate and agree that there is no just cause For delay III the immediate entry of said Judgment and the immediate Issuance of said variance by this Agreement for Judgment (and the accompanying Judgment) alone, and \,vith i-io other actions. meetings, hearings or decisions being necessary. However, nothing in this Awrcumen[ S11,111 ID tl 1� -- obviate the need for a building permit or a special permit. No work on the Site sli,111 begil-, prior to the issuance of a building perinit.The parties waive all rights of appeal I'Min the proposed C, Judgment submitted herewith. Each party shall bear its own costs., fees and expenses. 5 The Plaintiff, The Defendants. By its attorneys, The Board (InCILIChn-1 its members and (associate members), and the To\vn.. By their attorneys, Stephen D. Anderson, Thomas Urbelis Douglas H. Wilkins, Urbelis & Fieldstcel. LLP ANDERSON & KREIGER LLP 155 Federal Street 43 Thorndike Street Boston, Massachusetts 021 !0 Cambridge, MA 02141 (617) 338-2200 (617) 252-6575 6 ANDERSON ];REIGER>LLP DOUGLAS H.WILKINS dwilkins@a.,idersonkreiger.com April 5, 2006 By Maid and Fax (617) 338-13122 Thomas J. Urbelis, Esq. Urbelis &Fieldsteel LLP 155 Federal Street Boston, MA 02110 Re: New Cingular Wireless PCS LLC v. Town of North Andover, et al. Civil Action Docket No.: 05-1580B Dear Tom: I have received your letter dated April 4, 2006. Apparently, there was some misunderstanding during our phone conversation of April 3 (and in prior phone calls). To my mind, I had already responded orally to you on the phone regarding the proposals in your January 25 and March 1 letters, but let me be clear, in writing, this time. Cingular has applied for a special permit from the Planning Board, because the Town was not willing to agree to issue a building permit in settlement of the federal suit. Cingular is not prepared to resolve the federal lawsuit without being sure that a building permit is to be granted imminently and without need for additional zoning relief. If the special permit is issued, and not appealed, I anticipate that Cingular would authorize settlement of the federal case on the basis of a consent judgment that the variances be issued without further hearing(which is what I believe you proposed in January). Cingular is also still willing to settle on the basis of a consent decree for a building permit. Since you have not agreed to the latter, and the former lies (hopefully) in the future, I suggested to you on Monday that the quickest way to resolve this matter is for the Planning Board to grant a special permit as soon as possible. E C �1 5 W E MAY 2 - 2006 D BOARD OF APPEAM Thorndike Street • Cambridge,INAA 02141-1764 • (617) 252-6575 • Fax: (617) 252-6899 :: Printed on:eq,d d paver e , Thomas J. Urbelis, Esq. April 5, 2006 Page 2 I trust this answers your questions, but let me know if anything is unclear. S'` erely, t R D uglas H. Wilkins c: Jay Perez, Esq. Kevin Mason Stephen D. Anderson, Esq. Scott Lacy, Esq. \\fileserver\data\DOCS\CIN\MA\NorthAndoverChestnut\L\Urbelis005.doe ANDERSON&KREIGER LLP SA Printed on:ecyded paper pORTM ��4Sa.•O 16 1tiO F _. 9 CHU Post-its Fax Note 7671 Date`,;--/7_M pages► To qr., c" From Co./Dept. n of Q_ T-2N ' Co. I 1 d< � Phone# IQ Phone# Fax# j Fax# FAX TRANSMISSION t � 1 TO: � L4 eqaiU Sr i PU FAX NUMBER: G �2 ' 2 2:z cI D FROM: Town of North Andover Zoning Board of Appeals 1600 Osgood Street FAX: 978-688-9542 PHONE: 978-688-9541 Cover& Pages: Date: - 1 7 - D (10 Subject: on e-h� r • Remarks: Ple o ei Q ® C ,h �u . • a�a.. ff eV1 L l� q. 75 Aode1,orl & 43 7�oo) d : ke— 5c--eee+ C-otm ; d9e; MA 176 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978.688.9541 Fax 978.688.9542 Web www.townofnorthandover.com May 22 06 09: 35a NORTH ANDOVER 9786889542 p. 1 Town of North Andover Zoning Board of Appeals 1600 Osgood Street, Building 20,Suite 2.64 North Andov0e184Massachusetts ABUTTERS LIST REQUEST FORM Phone 978688-9541 Fax 9781188-9542 NORTI1 O 9 a y� 9gSACNUSE� Please submit this form to the North Andover Assessor's Office, 120 Main Street, North Andover,01845. The Assessor's office is open from 8:30 to 4:30,their phone number is 978- 688-9566,and their fax number is 978-688-3211. The fee is$25.00,and the Assessor's Office requests ten working days to prepare a Certified list. REQUIREMENT:MGL 40A,Section 11 states in part"Parties in Interest as used in this chapter shall mean the petitioner,abutters,owners of land directly opposite on arty line public r private a �on ay,an abutters to abutters within three hundred(300)feet of the property ice petitioner as they pP the most recent applicable tax list,notwithstanding that the land of any such owner is located in another city or town,the planning board of the city or town,and the planning board of every abutting city or town." Map(s) Parcel(g) 1'*3 , � Petition Address: No(s): Street:_ CG�eS�n u Property Owner of Record: ow '( DA S �3 7 Name of Person Requesting List:lm!'l 1G Phone No.: Requestor's address: (1DILr, I Date of Request:_7i i H.FND. SEE SHEET 2 FOR REGISTRY USE ONLY SEE SHEET 2 LOT 4 LOT 21 LOT 17 \ _ to '?399 N/F N/F / SS � Joseph E.9 Dorothy G Giard John E.Carter a Raymond D <Adler �i� i1� O / �' o 419 Johnson Rd. OL 300 ChestrwtStreel \ L ooh S 26 32, North Andover ?_•- // Nath AndoverSAO 194.21' n N66°2445.,E— O po 00 0 moo, gF q°eeG/<O H.FND. y1j�e�L, �9fiy .? Np S82° 41.85' 00?$, \R �ct`� /T��F/ J �/g /d.1.,(3/� " �•� � -' � LOT 18 8 LOT 5 I 25125 S.F. - 25097 S.F. LOT 22 0 3s� �� PROPOSED 20' ScF� 0 26542 S.F. UTILITIES/ACCESS- EGRESS EASEMENT 6' } 173.58' Ih .S86°24'45"W 249.57 S 86"35'24' 34.57' X19°>0 p0, ssi° 215.00' ya LOT 26 74216 S.F F� LOPE EASEMENT �V ..FND PROPOSED 20'WIDE p`� y 15.86' UTILITIES/ACCESS- o.`a, Tt�° H.FNa y p M EGRESS EASEMENT _(0_0rn gyp, N J John E.Carter a Raymond aAdler z LOT 6 3 & LOT 23 00Pry N ^ cr --S 86°21'34"W to / 121.50' 300 Chestnut Street p N \m oy in t LOT 19 ^� 0 25240 S.F. v — 25422 S.F. ti� 0 3 :i Q o u North Andover m N I Z 2556 S.F.rye` 0 LOT 20 o m o 3o W9p ti:N s w A fry .: 0 0S.F. 30509 (a _ N { a' o� ``� �� .- �\` PROPOSED ZO' Q) M z / r`. _e ' ' UTILITIES/ACCESS-EGRESS F� , ti 3515'N Ste° y44s,...' ah6ya EASEMENT \6 A5 t1 Lu 4 \� `T oCY ro �' LOT 25 �'sp fi LOT 14 o, N � 30586 S.F, - / 2aa �29soss��� 36104 S.F. H.FND. -o _ 003 \5 c062 LOT 13 �9 to LOT 7/ LOT 24 0"' 25157 S.F. 0� `� N 26143S.F. ,n' 26361 S.F. a�? 50 \°\Zo / s��24"44"'4 ?� W rn N I1 D.H.FND 100.00' N. �EE� .�5�'2\25� E-.. .. �1W. 201 ,t.. J I .l .. N�°0T 50.,E— / Seo gc q62\6 / 3578' 94.17' 66.00 6.H.FND. O� D.H.FND.�N83�1236 yy SB7°35'40'W 160.17' P DH.FND o \18�6 �P LOT 12 \a2 4 x (SEE OFF-SITE Phillip S.6 N/F Ann Sullivan o n \rod p N ,p;�3 / �Y� yO0/ w 25976 S.F /S�c°�°2 EASEMENT PLAN FOR 66 Jay Road O a N CONTINUATION OF THIS Z y�a`t' O,u' .pas. ��_ �pD.H.FND ' EASEMENT North Andover / 09 N O D.H.FND N is R` _O a cn � N/F m LOT 8 Joseph s Nancy Flynn f c 27442 S.F. a N 220 PO.Box 40 Og, West Boxford,Moss. e� LOT 11 N/F w a56h -- Gilbert 0.Rea 0 �� 27798 S.F. -04 DH.FND 44 Rea Street o 1' LOT 9 ti � N� North Andover -to Ir co i D.HFND. DEFINITIVE SUBDIVISION PLAN 29745 S.F. \1� "'KARA DRIVE" a6 LOT 10 4 �C.)e 28568 S.F. - NORTH ANDOVER NE SSi983 D.H.FND .�' 32� A\ / - SCale: 1 =40 Date:REV NOV. 30.1983 g OW PER DEW30 LSA IREALTY LAN NORTH ANDOVER,MASS. N64" 0 471 .569 / APPLICANT: MUSKABBY REALTY TRUST N/F 375 COMMON STREET,LAWRENCE,MASS. 8 H.FND. I HEREBY CERTIFY THAT THIS PLAN CONFORMS SURVEYOR: ENGINEER: Gilbert O.Rea �Ns�/3y3 2 N1 }� TO THE RULES AND REGULATIONS OF THE GISTERS !�\ 44 Rea Street 04 D.H.FND .569\AZ NOTE: OF DEEDS OF MASSACHUSETTS. r uv M andover FLYNN ASSOC.PC. C. —p—,. DENOTES STONE BOUND TO BE SET / �� �M °� COnsultants P.O. Box 569 North Andover _ ---�—� DENOTES STONE BOUND FOUND REGISTERED LAND SURVEYO inc. Plaistow, N.H. xJ%°0 H Met Broauen,Mas Methuen,Mass. 40 0 40 80 120 ft. SHEET 3 OF,)3 y„ r - DETAIL NOT TO SCALE -N FOR REGISTRY USE ONLY P� 9399 1. v G. 7 v SB./U.H.FND. 50 WIDE) 0.5g T DRILL HOLE FOUN S _ r S 15° STONE BOUND/ /��� /�•07i? STONE BOUND/ �? SB/D.H.FNQ �� 'L330 W 0.61' DH.FW Z `.���-� 11� L=132.G8' 2g0�p6' . j DRILL HOLE FOUND bald' ` . S P° 98' i 1A. g N/F 9sa o°, L`� �5 6 i ii _ ----------— SSP -PNEO. f Rosario L.81 Blanche L.Consoli i L 112 Lisa Lane "� L=221-14' e/ N`---_ N/F North Andover D.HFNd Anthony .a PatriciaA.Barbera t \ L=125.28' o� y ( DETAIL NOT TO SCALE ZF i'� Ng 92 Lisa Lane o, North Andover �— E 2' a 4i m EXISTING 20' 2��95g PROPOSED UTILITY/ - 0 DRAINAGE EASEMENT ACCESS-EGRESS 0N\ EASEMENT � Cb, LOT I ��i� 25969 S.F. i z pROpOSEp��°`�9 ��'Sso, 'N w UTILITIES/ACCESS m 13{ EGRESS EASEMENT ° •.� LOT 15 ~ 194.21' ° R% � 9 2 .F. 7185 S +-S 86°24'45W �, I _ D.H.FND. o°, N 60, 011 k rS 58 ^fie r° ^� LOT 2 CL ?s !y FND 25169 S.F. 6p �<.• >6 P 66��� 83200„E HTND. S78e 30 '.... D.H.FND. /SOO' ar S�Ck3s/'�'O.H.FND. N/F _ 194.21' I \,oF 9S�'� \ 0.. 26 —S86°24'45°W Fq SSS �'D.H.FND. N/F John E.Carter a Raymond B.Adler 1 SF4, S? X30', Joseph E.a Dorothy G.Giord 300 Chestnut Street w I \Ftil C�j �3F�b419 Johnsort Road North Andover CD _W LOT 16 tPF H.FND. North Andover 26021 S.F. L Nom\' I HEREBY CERTIFY THAT THIS PLAN CONFORMS LOT 3 0 T\ of 0p ��� 19 <0� ' Q��, TO THE RULES AND REGULATIONS OF THE REGISTERS 25169 S.F. ;1(J m �Z802 \�Q �'G %� DH FND OF DEEDS OF MASSACHUSETTS. N.”ti Kusa 0 9y� s REGISTERED LAND SURVEYOR 3 M" ada / Eon W �_ 194.21 -O X02 f0 D. FIND. O 95 5\ „W 5, c�,� F6/Sif.RE�P S 86°24'45'W Y NO suavE�O -a Z:, 4Y01 FO ,S �F �.5 '�.. .H FIND, �L cn O 813 \ `PJB Fc° 'y CJS m W :.� I moo, LOT 17 ``T \ \ �'09� NOTE: m _ �' 25125 S.F. °p, S° 2Fo, �� H.FND. —a— DENOTES STONE BOUND FOUND LOT 4 0 + LOT 21 �,L \ \ �o O,S —oma DENOTES STONE BOUND TO BE SET 25169 S.F. 25ti J� 324 S.F. \.�0. �J S/y SEE OFF-SITE EASEMENT PLAN FOR CONTINUATION OF THIS pOS, O u3,, Q Oq S,d g3 EASEMENT 0/3�' DEFINITIVE SUBDIVISION PLAN 194.21' a9 \F sF4 5 *KARA DRW* ---- —- - ___-- " pg J Py \ LOT 26 D.H.FND.oN86°24'4E m° NORTH ANDOVER,MASS. w 241.95' JUNE 8,1983 v N82-oa-a .,w 74216 S.F. a Scale: 1 = 40 Date REV NOV 301983 LOT IS a OWNER: DEWI REALTY TRUST 0 w 1 a \ \ °b�i�\ 130 LISA LANE,NORTH ANDOVER,MASS. Lu N/F a LOT 5 I N l�� +',I °� 25125 S.F. r� 1 APPLICANT: MUSKABBY REALTY TRUST John E.Carter&Raymard B.Adler 25097 S.F. O _ T /� PROPOSED 20' 375 COMMON STREET,LAWRENCE,MASS. 300 Chestnut Street a N = LOT 22 0 �Z \ UTILITIES/ACCESS- North Andover I I fir` $ 80 F°° / GRESS EASEMENT SURVEYOR: ENGINEER: �✓ ° 26542 S.F. N o,3 ` FLMN ASSOC-PC. + ; s �� 10.54' t7do"r 17358, z \O \ onsultants PD. Box 569 f S86°24'45"W 86°35'24' \Lg24' O Inc. j...:.. 249.57' _� Plaistow, N.H. / 9 SEE# 213 Broadway — SEE SPIFFY#3 ca SHEET*3-----, Methuen, Mass. r 40 0 40 80 120 it. LOT 6 I LOT 23 LAT 20 LOT 19 _— —~ v SHEET 2 OF 3 LOCUS PLAN NOTES: NORTH ANDOVER PLANNING BOARD Scale:1".600, I) ZONING DISTRICT R-3. _ DEFINITIVE APPROVAL UNDER THE RULES \ 2) BEARING SYSTEM BASED ON LANOUT OF ANDRE GU TIONS GOV RNING THE SUBDIVISION \\�\l LISA LANE AS SHOWN ON NORTH ESSEX OF LAND 1 NORTH A G`/ER, MASSACHUSETTS. N\ REGISTRY OF DEEDS PLAN NO.5628. E TOWN OF NORTH ANDOVER ` N m L�sA �A OFFICE OF THE TOWN CLERK `o THIS IS TOCERTIFY THAT ON NOV-2311983y IRECEIVED,FROM THE NORTH ANDOVER a \ MpRK, Z PLANNING BOARD,A CERTIFICATION OF Y ITS APPROVAL OF THIS PLAN AND THAT DURING THE TWENTY DAYS NEXT FOLLOWING I HAVE RECEIVED NO NOTICE �E 9ON OF ANY APPEAL FROM SAID DECISION. I DATE Y yc TOWN CLERK,TOWN OF NORTH ANDOVER DATE- SEE ATE:SEE ALSO UTILITIES/ACCESS-EGRESS EASEMENT / NE PLANS FOR PROPERTY N/F GIARD AND N/F FLYNN AND"DEFINITIVE PLANS-CONSTRUCTION BY N/F FLYNN ASSOC.P.C. \Consoli N/F CONDITIONS Barbera I. THE RECORD OWNERS OF THE SUBJECT LAND SHALL EXECUTE AND RECORD WITH THIS PLAN A ' COVENANT RUNNING WITH THE LAND,OR OTHERWISE PROVIDE SECURITY FOR THE CONSTRUCTION OF WAYS,INSTALLATION OF MUNICIPAL SERVICES,AND INSTALLATION OF STREET TREES WITHIN SAID SHEET 2 15 �� SUBDIVISION,ALL AS PROVIDED BY G.L.C.41,S 81-U. -- 2. ALL SUCH CONSTRUCTION AND INSTALLATIONS SHALL IN ALL RESPECTS CONFORM TO THE GOVERNING RULES AND REGULATIONS OF THE NORTH ANDOVER PLANNING BOARD. ANY CHANGES TO THE N/F APPROVED PLAN BY THE APPLICANT,TOWN BOARDS,OR AGENCIES SHALL BE SUBMITTED TO THE 2 Giard NORTH ANDOVER PLANNING BOARD FOR APPROVAL BY THE APPLICANT PRIOR TO IMPLEMENTATION IN THE FIELD. 3. THE APPLICANT SHALL COMPLY WITH THE NORTH ANDOVER CONSERVATION COMMISSION ORDER ORDER OF CONDITIONS DATED OCTOBER 13,1983 D.E.Q.E.FILE NUMBER 242-211 AND/OR SUPERSEDING ORDERS OF CONDITIONS FROM D.E.Q.E. A CERTIFICATE OF COMPLIANCE SHALL BE OBTAINED UPON C� COMPLETION OF THE DETENTION AREA. WF 3 16 Cartes-Adler 4. A SILTATION AND EROSION CONTROL PLAN SHALL BE SUBMITTED TO THE NORTH ANDOVER PLANNING fq BOARD FOR REVIEW AND APPROVAL AND SHALL BE IMPLEMENTED PRIOR TO CONSTRUCTION OF ANY KIND ON OR OFF-SITE OF THE SUBDIVISION WHERE APPLICABLE, THE NORTH ANDOVER �y PLANNING BOARD SHALL HAVE THE OPTION OF REQUESTING A PERFORMANCE BOND TO ENSURE UJ O THAT ALL APPROPRIATE EROSION CONTROL MEASURES ARE IN EFFECT. 5. EXTENT OF SLOPE EASEMENTS TO BE GRANTED TO THE TOWN OF NORTH ANDOVER TO BE 2I DETERMINED BY THE NORTH ANDOVER PLANNING BOARD AND HIGHWAY SURVEYOR AFTER 26 CONSTRUCTION. _ 6. THE APPLICANT/DEVELOPER/OWNER SHALL BE AWARE OF THE FACT THAT APPROVAL OF KARA OVERLAP 5 ROPE DRIVE SUBDIVISION UNDER THE PLANNING BOARD RULES AND REGULATIONS WILL NOT RELIEVE SAID OF Q 18 j j �� MPRH AFFECTED BY INDIRECT OR DRTIES FROM THE IRECT RESPONSIBILITY OTHER PROPERTY WHOSE LAND IS ADVERSELY ECT STOR WATERD DISCHARGE. SHEET 2 8 3 22 �e N/F __—_ Q h� 7. ALL IMPROVEMENTS IN SAID SUBDIVISION SHALL BE COMPLETED NO LATER THAN TWO(2)YEARS Carter Y -- -- R.t FROM THE COMMENCEMENT DATE OF CONSTRUCTION AND APPROVAL OF THE SECURITY AGREEMENT. Adler. _ 8. ALL EASEMENTS TO BE SUBMITTED IN A RECORDABLE FORM DEEDED TO THE TOWN OF NORTH 23 19 � ANDOVER . 20 25 � 14 7 24 13 12 II r� 8 A N/F SHEET 3 - N/F Sullivan DEFINITIVE SUBDMSION PIAN R' Flynn "KARA DRNE" ID ,K.. FOR REGISTRY USE.ONLY y-`'`�J` r NORTH ANDOVER,MASS. SCale:AS Noted Date: JUNE B,1983 R REV NOV 30,1983 N/F OWNER: DEWI REALTY TRUST Ur GRea 130 LISA LANE,NORTH ANDCVER,MASS. `moi` Y ReO ` I HEREBY CERTIFY THAT THIS PLAN CONFORMS APPLICANT! MUSKABBY REALTY TRUST TO THE RULES AND REGULATIONS OF THE REGISTERS 375 COMMON STREET,LAWRENCE,MASS. 8' /Pd-1/ f� 07.0 OF DEEDS OF MASSACHUSETTS. _ ..., SURVEYOR: ENGINEER: REGISTERED SURVEYOR S. AcdoverFLYNN SSOC. P.C. ove ltonts a.�vu. ti P.Q. Bax 569 r° p INDEX PLAN 9+I57FRE� nC. Plaistow. N.H. Scale: I"=100' 213 Broadway Methuen, Mass. SHEET I OF 3 �3' BK 9i 226 PG 151 QUITCLAIM DEED We,JOHN J.HASHEM,JR.and DENISE M.HASHEM,of North Andover, Essex County,Massachusetts for consideration paid and in full consideration of Seven Hundred Eighty Thousand($780,000.00)Dollars and 00/100 grant to LINDA HAJJAR,Individuall 33 ss Y Massachusetts achusetts with quitclaim covenants the land in North Andover,Essex County,Commonwealth of Massachusetts,with the S\\\ buildings thereon,described as follows: Lot No. 17 on Definitive Subdivision Plan entitled"Kara Drive,North Andover, Massachusetts Scale I"=40"dated June 8, 1983",revised November 30, 1983,recorded as Plan No.9399,on March 8, 1984. Containing 25,125 square feet more or less. Bounded and described as follows: Beginning at a point on the Southerly side of Kara Drive and running Two Hundred One (201)feet along Kara Drive to a point;thence turning and running One Hundred Twenty- Five(125)feet along Lot 18 to a point;thence turning and running Two Hundred One (201)feet along Lot 21 to a point;thence turning and running One Hundred Twenty-Five f� (125)feet to the point of beginning. Subject to utilities,slope easements shown on said Plan and other restrictions of record. ^ rn For our title see deed dated November 14, 1986 recorded in Book 2355,Page 152. the land in North Andover,being shown on a plan entitled"Plan of Land located in North ; w Andover,Mass.,prepared for John Hashem,Jr.,Scale 1"=40',Dated:July 20, 1988", Scott L.Giles,Registered Professional Land Surveyor,being a portion of the rear of Lot �? " • 21 on said plan,bounded and described as follows: NORTHWESTERLY by"old lot line"of Lot 417 on said plan,80 feet; SOUTHEASTERLY by Lot#21,4.0 feet; o SOUTHWESTERLY by the new lot line of Lot#21,80 feet,and � NORTHWESTERLY by Lot#21,4-0 feet. All of said boundaries being as shown on said plan. — For our title see deed dated August 8,1988 recorded in Book 2782,Page 282. T a, v[i µ Z Z V`11�1`11 - i. Glennon, Michel From: joe.lagrasse@comcast.net Sent: Tuesday, May 30,200611:34 AM To: Glennon, Michel Subject: Re: Cingular Ed Cingular Mich, I probably do, but if it's not to much trouble could you send me another copy. Joe -------------- Original message ---------------------- From: "Glennon, Michel" <mglennon@townofnorthandover.com> > Cingular has been resusitated and will be in the June 13th meeting. Do you have > your copies of the application? If not, please let me know so that I can xerox > another set for you. Thanks, Mich. 1 Page 1 of 1 Glennon, Michel From: Atty.Albert P.Manzi III [attymanzi@manzilaw.net] Sent: Tuesday,May 30,200610:23 AM To: Glennon,Michel Subject: Re:Cingular please send me a another set "Glennon,Michel"4nglennon(&ownofnorthandover.com>wrote: Cingular has been resusitated and will be in the June 13th meeting. Do you have your copies of the application? If not, please let me know so that I can xerox another set for you. Thanks,Mich. Attorney Albert P. Manzi III 24 Main Street North Andover, Massachusetts 01845 Tel. 978-681-6618 Fax. 978-681-6628 website: www.manzilaw.net Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above.Any other reading, dissemination, distribution or reproduction is prohibited If you receive this email in error,please notify the sender immediately by telephone and reply email and fully delete the email received without making a copy of the email or any attachments 5/30/2006 Page 1 of 1 Glennon, Michel To: dsblegal@aol.com Subject: RE: Cingular -----Original Message----- From: dsblegal@aol.com [mailto:dsblegal@aol.com] Sent:Tuesday, May 30,200610:26 AM To:Glennon, Michel Subject: Re: Cingular Hi Mich. I don't believe I have one. Dan -----Original Message----- From: Glennon, Michel <mglennon@townofnorthandover.com> To: Atty. Albert P. Manzi, III <attymanzi@manzilaw.net>; Daniel S. Braese <dsblegal@aol.com>; David R. Webster <david.webster@netcodex.com>; Ellen P. McIntyre <epmcintyre@comcast.net>; Joseph D. LaGrasse <JOE.LAGRASSE@COMCAST.NET>; Richard J. Byers <rjbyers@andoverattorneys.com>; Richard Vaillancourt <divailla@cisco.com> Sent: Tue, 30 May 2006 10:11:12 -0400 Subject: Cingular Cingular has been resusitated and will be in the June 13th meeting. Do you have your copies of the application? If not, please let me know so that I can xerox another set for you. Thanks, Mich. 5/30/2006 Cingular Page 1 of 1 Glennon, Michel From: Richard J. Byers[gbyem@andoverattomeys.com] Sent: Wednesday,May 31,200610:00 AM To: Glennon,Michel Subject: RE: Lingular Mitch, Pll need a copy. Rick -----Original Message---- From: Glennon, Michel [mailip:mglennon@townofnorthandover.com] Sent:Tuesday, May 30, 2006 10:11 AM To: Atty. Albert P. Manzi, III; Daniel S. Braese; David R. Webster, Ellen P. McIntyre;Joseph D. LaGrasse; Richard J. Byers; Richard Vaillancourt Subject: Cingular Cingular has been resusitated and will be in the June 13th meeting. Do you have your copies of the application? If not, please let me know so that I can xerox another set for you. Thanks, Mich. 5/31/2006 Cingular Page 1 of 1 Glennon, Michel From: David Webster[dave@netcodex.com] Sent: Tuesday,May 30,2006 7:10 PM To: Glennon,Michel Subject: RE: Cingular I do not have a set. From: Glennon, Michel [mailto:mglennon@townofnorthandover.com] Sent:Tuesday, May 30, 2006 10:11 AM To: Atty.Albert P. Manzi, III; Daniel S. Braese; David R. Webster; Ellen P. McIntyre;Joseph D. LaGrasse; Richard J. Byers; Richard Vaillancourt Subject: Cingular Cingular has been resusitated and will be in the June 13th meeting. Do you have your copies of the application? If not, please let me know so that 1 can xerox another set for you. Thanks, Mich. 5/31/2006 ,P*�� � / , f� 1' � \ �>: ,sal �� `�,^ .\ �' c• — /' f '�`.`_ � -• �,• �� c �? , r (.-. 1 1 +r/,� �\ � �rbr r��� 1T -•rte.• 'J. l( I y } .' S ~�^ � I� ��( •' f �".. ��a.�l ` r` - ti \,Ir+ qtr 't! j' ( ,ice• - f� !�_, •,1 r y� i a.I j l l X11 - d�� �3 aa.► r-. ry/ ,.r''�e ♦. a r l }r i,q,,\�•�1/ �� � ��:- L ��s r `y t�J �` r� �, .h yd r �r' �,,, �*`.�ya .•.1• \l. Cti !a� ���r`��, `, '.r---•� � { Ir_ �O '� � "� 1� .•4` y }F!y 4• I et �F`�i\ � 1,1 4�-t J •� c..-.•1:).• { �• t � ' 1 ki•• 1 4 . •. ,\ti T �1.i....t 7 �y—�".. All If e... j ry tf ' _ . •S t t �i{ ,l .S �,. ��, +�- �� ([`• •* •, i '� \♦ t -Tl rr• r�Itl V I��._r• `,n r •{ I r ) 1 p'y� �f � /.r,"�. - i� . >i y a ,y t'r � ^ f� � .a._. ._.'V - _ �/"ems. •�. — .� <, ' 1 � �ji' gym; •� r�'`.r..�_; Tcro>:es 1 _ 1 fli,( It 1_ '� F r .I \ a_'tel• r" i l �� �. It i •.. r \ - -'• 'f�i L �. - ..( rT\- „ y r� ���•. .�.�r �� y> r 1 �ilf•t' '2 r ��'= i�,--/ t j1 r__ t, ,( t � r\. t+ ,�•. }�,`�.fir! ► �.11�''�,. � -_ .�\•,� 1 �,'J�r� ��. �.-. �w ��1/ �l�� \�- 1 I F q., f VAY u- ►? 2006 8OARL p;AP;)EALS MAY- 30. 2006 11 :44AM URBELIS & FIELDSTEEL N0. 796 P. 2 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 0211 0-1 727 THOMAS).URBELIS Telephone 617-338-2200 Andover e-mail Iju®uf-IaW.Com Telecopier 617-338-0122 Telephone 978-475-4552 May 30, 2006 By Facsimile Michel Glennon,Administrator Zoning Board of Appeals 1600 Osgood Street North Andover,MA 01845 RE: NEW CINGULA1t WIRELESS PCS LLC V.TOWN OF NORTH ANDOVER,ET AL. Dear Michel: Enclosed please find a copy of a letter dated May 30, 2006 from Attorney Douglas Wilkins. Please confirm that you have copies of drawings COIR and CO1C as referenced in the letter. Very truly yours, Thomas J.Urbelis G KM TJU:krnp Enclosure w:wpS 1wehln-ado+KkNunelennon an dot ` MAY. 30. 2006'�11 ;44AM URBELIS & FIELDSTEEI- - N0. 796 P. 3v-+ 0 ANDERSON , REYGERLLP DOUci.rS H.Waxnss dr+9kito w anderarankreiger.cum May 30,2006 Fats 617)338-0322 Thomas I Urbelis,Esq. Urbelis&Fieldsteel LLP 155 Federal Street Boston,MA 02110 Re: New CingWar Wireless PCS LLC v.Town of North Andover,et al. Civil Action Docket No.: OS-1580B Dear Tom: I have received your letw of May 26,2006 regarding drawings CO3B and C01C. Please be advised that drawing CO1B was included as exhibit A.to the letter dated May 6, 2005 from Jeffrey Roelofs of,Anderson&Kreiger LLP to the Zoning Board of Appeals. The Board's decision specifically refers to this May 6,2005 written response(wltich'included the exhibit)and therefore must have received ii,although the Decision does not specifically refer to drawing C01B.. Drawing CO 1 C was issued on July 7,2005 and presented in person by Scott Lacy of omr office at the Zoning Board of Appeals' hearing. These drawings are therefore properly part of the settlement Please let me know if you have any fi:rther questions about this. 7ual ly, as kl.Wilkins 11�iaorverWuutlDOCs�CtMMw�NunhAndw�rClteamu�U.�ihbe�;�ao�.aee 43'rhorndikt;Straet - Cambridge,MA 02141.1764 - (617) 252-6575 . Pax:(617)252-6899 0 YnnT0 f-n-T"PtP T MAY. 30. 2006 11 :44AM URBELIS & FIELDSTEEL N0. 796 P. 1 URBELIS & FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON, MA 02110 Telephone: (617)338-2200 Telecopier (617)338-0122 Andovef Telephone: (978)4754552 FAX COVER SHEET TO: Michel Glennon FAX: (978)688-9642 FROM. Thomas J. Urbelis, Esq. PHONE: (617) 338-2200 RE: Cingular Wireless v. North Andover, et al. DATE: May 30, 2006 Number of pages Including cover sheet: 3 Message: THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDBD ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE I$NOT THE INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,OISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S.POSTAL SERVICE.THANK YOU. NORTH Q�St�an 6�ti0 ACHUS ZONING BOARD OF APPEALS Community Development Division FAX TRANSMISSION TO: Ai, FAX NUMBER: �— FROM: Town of North Andover Zoning Board of Appeals 1600 Osgood Street FAX: 978-688-9542 PHONE: 978-688-9541 Cover& Pages: Date: 5 30 —D65' Subject: 3 Q a �� PJ11W� G(2 Lb t Remarks: 1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978.688.9541 Fax 918.688.9542 Web www.townofnorthandover.com pORTy Of t«eo 16�tiO tP ;' 6 OL N � q°RAreo sSACNusfc Town of North Andover ZONING BOARD OF APPEALS By Facsimile May 30, 2006 Thomas J. Urbelis, Esq. Urbelis&Fieldsteel, LLP 155 Federal Street Boston, Massachusetts 02110-1727 Dear Atty. Urbelis; Anderson&Krieger did submit drawings CO1B for the May, 2005 meeting and COIC during the July 8, 2006 meeting. Attached please find the identification half of the drawings. Sincerely, Michel Glennon Zoning assistant MCG:im Encl. (2) Community Development Division,1600 Osgood Street,North Andover,Massachusetts 01845 Phone 978.688.9541 Fax 978.688.9542 Web www.townofnorthandover.com X cingular �,7 WIRELESS MAP: 98.A MAP: 98.A ` pC' 580 MAIN STREET MAP: 98.A LOT. 87 LOT: 86x o�z BOLTON, MA 07140 LOT: 88 N/F `� N/F y- N/F \ROGER LUCEY \ XXXXX PRATIP MUKHERJEE ` Lucent Technologies 1-1*'[�:� THIS AREA IS SUBJECT \ \ ` RESTRICTIONS OUTLINED lio N TITLE EXCEPTION N i-SCSCH B-1. SEE BOOK o #1246 PG #156 - GI \ CLOUGH HARBOUR&ASSOCIATES LLD _� � µ � ,` 7W LNtlebn Rad,SPBe 17,CFldmsford,MA OItZA,73{I —— i u ZWOOD7 WNYAdW ibOYLCM ---- --- \ h 0t 1 H 1 GUISTING Y HARE ` CHA PROJECT NO: \ A Or 13713-1013-1601 m 1 HOUSES HAVE BEEN NO. SUBMITTAL ZWOODS7 /NGULAR 11'5`X 26' ' CONSTRUCTED IN D ,s6 D5 ISSUEp FOR REVIEW / f SHELTER W17H1N THIS GENERAL er JRs CMK PMP APP•D:PMP 105't AREA AFTER DATE +ae as SSUED FOR ZONING F SE CK 1 EXIS7JNG COMPOUND OF AVAILABLE BY: JR5 CHK:PMP PP",PNP AERIAL 36f+ 61 PHOTOGRAPHY. DISTANCES TO ER SETBACK 1 I EXISTING 1 EXISTING STRUCTURES IN GUY WIRE THIS AREA WERE EXISTING ESTIMATED TO BE 8.0 GUY WIRE No GREATER THAN 2 ? 300', BASED ON 966 S.F. /WOODS 1 OLE # 441 W/ OBSERVATIONS RES) o ,/WOODS UNDERGROUND MADE FROM TOWER JTIAL - 3 8 ELECTRIC / SITE AND PUBLIC w 7 R.Q.W. µ Tn TNG TREE m RAGE J� i� MAP: 98.8 QO n 1 LOT: 11 Q EXISTING 1 N/F 3(v� 50'-9" X 60'-2" GILBERTS `O FENCED COMPOUN / MAP: 98.0 SEE BOOK 875 LOT: XX __T_I POLE # PG. #50 N.D.R.D. FOR I I 4416 EASE_YE T RIGHTS TO M (MACK-ESSEX C \ E ECTRIC CO. T11L MAP: 98.0 I �EXC,PTION #7, SC r J '\ LOT:X1100 B II IT IS A NOLATION OF LAW FOR ANY PERSON. MES I ` �/f UNLESS THEY ARE ACTING UNDER INE DIRECTION I OF A UCENSED PROFESSIGNAL ENGINEER. JOHN MARCONI To ALTER THIS DOOMENT. ' L- I 1 I I I 98.0 SITE NUMBER: MAP:: BOS-020 (855)MAP: 98.0 POLE # LOT 3 LOSITE NAME N:F6 EVAN M.FORUNAIO a41 I N F NORTH ANDOVER-SBA COLO I NICHOLAS DIRICO I POLE # HOUSES CONSTRUCTED SITE ADDRESS. 4414 AFTER DATE OF 300 CHESTNUT STREET ----—- -�-_ AVAILABLE AERIAL NORTH ANDOVER, MA 01845 EXISTING PHOTOGRAPHY. LOCATION ESSEX 'COUNTY (TRUcruRE CHESTNUT STREET APPROXIMATED FROM TYp) PUBLIC R.O.W.(NO SHEET TITLE MEASUREMENTS TAKEN) _ ----""---J---"-- ADJOINING STRUCTURES PLAN SHEET NUMBER C01 hz X cingular~ �yc x 560 UAIN STREET HOUSES UNDER CONSTRUCTION AT u.i EIDLMN. MA 07140 11ME OF SITE ASM LOCATION APPROMMATED FROM PUBLIC R,O.N.(NO MEASUREMENTS TAKEN) r ` r Lacent TkhndoRIM 0 � M ti LMMyr NAP.�4&.A HOUSES CONSTRUCTED AFTER DATE L07:7211 OF AVAILABLE AERIAL JOSEPH&RITA` J PHOTOGRAPHY"LOCATION STELLA r APPROXUATEO FROM PUBLIC J R,O,W.(NO MEASUREMENTS TAKEN) r B � 19 , A.. MAP: 98.a C+14 IAP-, qaA.7 LOClKAaraaAu0cL un W L20 IAP: 9e.A• LOT: 26 auruwkrw u "43ft -*KWJnWM364 OT: 1'T PEACH TREE Lj DEVELOPMENT . ou,►+v+ccr tta IP 98 MAP: 98.A I7TI7—2017 1601 N22 LGN: 25 ENNEEF���YHH7 `�'� �� KENNETH REA' . REA ` � rm otc w wu Mr ��..•ItMAP' 9&AJN, / 1 LORIF.3 KENNETH { � 6•{ REA lI MA2: 9&A �llND LOT: 24 NIT T KENNeTH REA M : I 9e.c' MAP: Sac I F ITT LOT: 116 HOUSES CONSTRUCTED AFTER DATE 98. 1 �� OF AVAILABLE AERIAL PHOTOGRAPHY.LOCATION 176 APPROWATED FROM PUBLIC R.O.W,(NO MEASUREMENTS TAKEN) OF J �G �i HOUSES CONSTRUCTED AFTER DATE OF AVAILABLE AERIAL 98. PHOTOGRAPHY.LOCATION LOT: 29 APPROMMATED FROM PUBLIC i R.O.W.(NO MEASUREMENTS TAKEN) I O R 6 A 1tpATIOM 6IAf AW/IAF(µ v""AtY Y(ACIK(Run AIC LM:CAW I 6 A U=3M MIOr SXk OtAKTA. 1 10 tl'R TM6 0.'CAlrt, NVImOL BOS-020(855) are KAM NORTH ANDOVER-SBA COLO WX ADM= 300 CHESTNUT STREET NORTH ANDOVER W4 01845 ESSEX COUNTY • 4iEET TTA! ADJOINING STRUCTURES PLAN am Whim col c HP Fax K 1220xi Log for NORTH ANDOVER 9786889542 May 30 2006 3:56pm Last Transaction Date, TimeTwe Identification Duration Pages Rm May 30 3:44pm Fax Sent 816173380122 0:56 4 OK Page 1 of1 Glennon, Michel From: Thomas J. Urbelis Rju@uf-law.com] Sent: Thursday,May 25,2006 3:44 PM To: Glennon,Michel Subject: Cingular Mich.......the plans you sent to me did not include Drawing Nos.C01 B revised 4/28/05 and C01 C 7/07/05. Were those included in what Cingular filed with the Zoning Board? Thanks. S oY r�/ no, Post-its Fax Note 7671 Date Y— page s► 2 To t FromT6,05J. 14A J Co./Dept. Co. Phone# Phone# Fax# Fax# 4410) POS X Ve/rl$l P�Sc � 5 Y'2alJ�blt: ✓eV S� 1 e. VgWyV*% 5/25/2006 X cingular 580 MAIN STREET • BOLTON, MA 07140 cin g u a r TM Wc�n!T�c�nol�lq WIRELESS �A SITE NAME: NORTH ANDOVER SBA COLO SOCK E - CLOUGH.HARBOUR 6 ASSOCIATES LLP SITE NO.: BOS-020 (855) 13713-I0X =EJ3 DRAWING INDEX SITE INFORMATION LOCATION MAP ;a APPLICANT: CINGULAR WIRELESS V \ - So°°.a w _ \ SHEET SHEET REVISION HISTORY 560 MAIN STREET N0: TITLE NO: DATE BOLTON,MA 07140 TO1 TITLE SHEET 1 12/23/04 SITE ADDRESS: 3DO CHESTNUT STREET COtA COMPREHENSIVE STE PLAN 1 12/23/04 NORTH ANDOVER.MA 01845 °•.r o C01 SITE PLAN I 12/23/04 TOWER OWNER: SBA 338 CHURCH fl0A0 - CO2 TOWER ELEVATION h DETAILS PEMBROKE,NH 03275 r�O+N CO} STRUCTURAL DETAILS 1 12/23/04 COUNTY: ESSEX C04 STRUCTUL DETAILS 1 12/23/W RA 04 LATITUDE 42"40'D8'N M1�O�, L C05 STRUCTURAL NOTES I 12/2}/ LONCITUDE 71'06'31'W E01 POWER k TELEPHONE PLAN 1 12/23/04 J(AOF ALyS,p_ T AREA OF CONSTRUCTION: 500 50.FT. E02 GROUNDING PUN 1 12/23/W C1 ENGINEER: f1WGH HARBOUR 8 ASSOCIATES LIP 4 E03 ELECTRICAL DETAILS 1 12/23/G4 O P. _ 2139 SIDS DEANE HIGHWAY E JR. iD SUITE 212 Mo�`'a° E04 ELECTRICAL DETAILS 1 72/23/W L T ROCKY HILL CT 06067 E05 ELECTRICAL DETAILS 1 12/23/04 CONTACT: PETER McTYGUE,PE. EO6 ELECTRICAL SPECIFICATIONS i 12/23/W f- f PHONE: (518)453-3923 A" DRIVING DIRECTIONS SITE z °T LOCATION FRCM 5 °5' PROJECT DESCRIPTION a E NuueEB =OLOW -9C 7C.-290 EAS';EXT IC) FOLLOW -290 W°.1=� 13OS-020 (855) .AST'0 -495 NORTH'EXIT 266). GO_LO.1-495 SITE NAME 'NO.Tr'0 HT-114 EAST(-"42A). -Cl RT-114 PROJEC'INCLUDES THE CONSTRUCTION OF AN X 26'-0"EQUIPMENT SHELTER 01: -AST -U.,,'..EFT CN HILLSIDE ROAD. TURN RIGHT ON -,CRS. IN ADDITION,TWELVE(12)PANEL ANI NNAS ALONG.1H COAXIAL.CABLES W4LL NORTH ANDOVER—SBA COLO CH-C'NUT STREET. ACCESS DN"-IS ON'HE LEI' BE INSTALLED AT A HEIGHT OF 120'ACL ON THE EXISTING 152'GUYED TCWER. ATE ADDRESS: C'RECTLY ACROSS FROM HOUSE M 336. 300 CHESTNUT STREET q NORTH ANDOVER, MA 01845 DO NOT SCALE DRAWINGS ESSEX COUNTY HANDICAP REQUIREMENTS CON'TRACiOR SHALL RIMY ALL PLANS h EXISTING ENGINEER IN h CON'OI f10N9 ON S lE THE�O6 SITE h SHL IMMEDIATELY NC'IFY THE ENGINEER IN WRITING OF ANY 'AC:-17Y!S,iNMAAPNNEO 4 NOT FOR HUMAN HABITATION. DISCRCFANCIE:,BEFORE PROCEEONC WITH'HE WORK OR BE RESPONSIBLE FOR SAME — HANc:cAP Acc6ss,E NoT REDmREO. I No suLe TITLE SHEET SAF OIG E-M CACHUSE-- DECEMBER 2004 A � SAVE BIG, CALL BEFORE YOU DIG. SH NUMBER OTHER REQUIREMENTS J 1-888-344-7233 T01 J FACILITY HAS NO PLUMBING OR PARKING, 2 3 44 t X cingular WIRELESS 580 MAIN STREET BOLTON, MA 07140 TM lar Lucent Technologies w E.e.In.ov�tlo.n _ ELESS C�!Al VER-SBA COLO GH. CDPYRIGRT © 2004 CLOUGH. HARBOUR 6 ASSOCIATES LLP ENCNFrT.6.SF'vE1Y-F6.PLAYE6 6 LJN�JKE A�.T�� 0 8 5 5 L.8 -25 DEANS HIGHWAY SUITE 51 12 ROCKY HILL. CT 06057 TEL E60-25]-4557 FAX 660-257-7574 CHA PROJECT NO: 13713 — 1013— 1601 NO. SUBMITTAL DRAWING INDEX 11/21/01 SBUED FOP. REVIEW 0 PAL CNK:JP APP'D'.PM 72/23/01 ISSUED FOR CONSTRUCTION \ SHEET SHEET REVISION HISTORY BY: PAL CHK:JP I APRD.PM NO: TITLE NO: DATE T01 TITLE SHEET 1 12 / 23 /04 C01 COMPREHENSIVE SITE PLAN 1 12 /23 /04 C01 SITE PLAN 1 12 /23 /04 CO2 TOWER ELEVATION & DETAIIS 1 12 /23/04 CO3 STRUCTURAL DETAILS 1 12 /23 /04 C04 STRUCTURAL DETAILS 1 12 / 23 /04 v C05 STRUCTURAL NOTES 1 12 / 23 /04 a 0 E01 POWER & TELEPHONE PLAN 1 12 /23 /04 OF E02 GROUNDING PLAN 1 12 /23 /04 Rd E03 ELECTRICAL DETAILS 1 12 /23 /04 O P. y E04 ELECTRICAL DETAILS 1 12 /23 /04 ( E IL .1R n' E05 ELECTRICAL DETAILS 1 12 /23 /D4 { �l 3907 �1 E06 ELECTRICAL SPECInCATIONS 1 12 /23 /D4 `L f r 'gyp IT IS A NOLATION OF FOR ANY PERSON, o UNLESS THEY ARE ACTIN DER THE DIRECTION OF A LICENSED PROFE TONAL ENGINEER. TO ALTER,THIS DOCUMENT. PROJECT DESCRIPTION Bos NUMBER: PROJECT INCLUDES THE CONSTRUCTION OF AN '1'-5" X 26'-0" EQUIPMENT SHELTER ON STE NAME:- PIERS. AME:PIERS. IN ADDITION, TWELVE (12) PANEL ANTENNAS ALONG WITH COAXIAL CABLES WILL NORTH ANDOVER—SBA COLO BE INSTALLED AT A HEIGHT OF 120' AGL ON THE EXISTING 152' GUYED TOWER. STE ADDRESS: 300 CHESTNUT STREET DO NOT SCAL� DRAWINGS NORTH ANDOVER, MA 01845 ESSEX COUNTY CONTRACTOR SHALL VERIFY ALL PLANS & EXISTING DIMENSIONS & CONDITIONS ON THE JOB SITE & SHALL IMMEDIATELY NOTIFY THE ENGINEER IN WRITING OF ANY SHEET TITLE DISCREPANCIES BEFORE PROCEEDING WITH THE WORK OR BE RESPONSIBLE FOR SAME TITLE SHEET MA DIG SAFE — MASSACHUSETTS SAVE BIG, CALL BEFORE YOU DIG. SHEET NUMBER P°n5c a— 1-888-344-7233 T01 UNITED STATES DISTRICT COURT G DISTRICT OF MASSACHUSETTS Civil Action No. 03-12105-NMG So NEW CINGJLAR WIRELESS PCS, LLC (formerly AT&T WIR-LESS PCS, LLC, d/b/a AT&T WIRELESS), ) Plaintiff, ) V. ) TOWN OF BILLERICA,MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF ) BILLERICA.and RICHARD A. COLANTUONI,DORIS ) M. PEARSCN, ELLEN SARGENT, JOSEPH P. SHAW ) and JOHN F. GRAY, Jr. as they are Members and ) Alternate Mvmbers of the Board, and ) MILTON KINNEY as he is Building Inspector ) for the Towr of Billerica, ) Defendants. ) AGREEMENT FOR JUDGMENT WHEREAS, on or about July 22, 2003,Milton Kinney, the Billerica Inspector of Buildings ("13uilding Inspector"), sent to the plaintiff, AT&T Wireless PCS, LLC ("AWS"), a Notice("Building Inspector's Notice") asserting that, for each AWS vireless commur.;rati^ii^ facility in Billerica, AWS was required to comply with the Billerica Bylaw's requirement for aritivai testing, nionitoring, ceittification and reporting regarding emissions from Personal Communication Services ("PCS") facilities, commonly known as cell towers. Vb HE REAS, AWS applied to the Board of Appeals(the "Board") of the Town of Billerica(the "Town") for relief from the Building Inspector's Notice. WHEREAS,the Board issued a decision, filed with the Billerica Town Clerk on October 10, 2003, deifying AWS' appeal (the"Decision"). WHEREAS, the Federal Communications Commission's ("FCC") regulations,including but not limited to the table in 47 C.F.R. 1.1307(b), show that PCS facilities are categorically excluded from routine evaluation for RF emissions as long as they are not attached to a building; are 10 meters (approximately 32.8 feet) above ground, given the power levels at which AWS' facilities operate. WHIE.REAS, at all four of its Billerica sites,AWS' antennas are not attached to buildings; are located Nell in excess of 10 meters above ground level("AGL"), with an antenna center line ranging frons 115 feet to 125 feet AGL. WHEREAS,AWS timely appealed the Decision under both Section 704 of the Telecommunications Act of 1996, Pub. L.No. 104-104("the Telecommunications Act"), codified at Section 332(c)(7) of the Communications Act of 1934,47 U.S.C. §§ 151-691, and the Massachusetts Zoning Act,M.G.L. c. 40A, § 17. WHEREAS, AWS's complaint also challenged certain provisions of the Town's Wireless Telecommunications Zoning Bylaw, including the Bylaw as amended in 1999 adding Section 5.17(E)("1999 RF Requirement") and Section 5.C.l.k(2)(c)(XIIl)(1-4)of the Bylaw(later renumbered as Sections 5.G.1.k(2)(c).l-XXV))("Current RF Requirement"), which as most recently amended at the time of the Decision,set forth certain annual RF testing,monitoring, certification and reporting requirements for permitted Personal Wireless Communication Facilities in;he Town. WHEREAS, as a result of an acquisition in 2004, the name of the plaintiff in this matter changed frori AT&T Wireless PCS, LLC to New Cingular Wireless PCS LLC, a Delaware limited liability company("New Cingular"). The new parent of the plaintiff is Cingular Wireless LLC ("Cing«lar"). WHEREAS, without any admission of fact, law or liability, New Cingular, the Board (including it;; members and associate members), the Building Inspector and the Town agree that it is in their best interests to settle this litigation by(a)revoking the Decision and replacing it with a 2 decision upholding AWS' appeal, (b)revoking the Building inspector's Notice, (c) declaring that application c f Billerica's RF Monitoring Bylaw shall conform to the requirements and- exemptions ndexemptions of federal telecommunications statutes and regulations with respect to New Cingular's and Cingular's existing and future installations and(d)dismissing certain remaining claims. WHF;REAS,the Parties agree that the proposed Judgment shall allow for self-executing relief,with no other actions,meetings,hearings or decisions of the Board or Building Inspector being necessary with respect thereto. WHEREAS,there is no just cause for delay,and a remand to the Board would serve no useful purpose. NOVI THEREFORE,without any admission of fact,law or liability, and solely for purposes of;,ettling this litigation, all parties(New Cingular,the Board(including its members and associat,;members, the Building Inspector and the Town), through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment(in the form submitted herewith as Exhibit A) such that(a) the Decision shall be and hereby is vacated to the extent it denied AWS's appeal, and:;hall be and hereby is amended and modified to grant AWS's appeal,vacating the Building inspector's Notice, (b)the Building Inspector's Notice shall be and hereby is vacated, (c)the defer dants shall not.apply the1999 or current RF emissions requirement of the Bylaw to Cingular and New Cingular PCS facilities in the Town of Billerica. Nothing in this order shall prohibit the Town from adopting a Bylaw requiring the submission i o the Town of a copy of any site-specific report required by the FCC regarding RF emissions measurements for facilities in Billerica, if that report has been submitted by the carrier as a public c.ocument to the FCC or successor agency. 3 The parties further stipulate and agree that Judgment shall enter for the Town on Count V, which shall be dismissed without costs. The parties further stipulate and agree that there is no just cause for delay in the immediate entry of said Judgment by this Agreement for Judgment(and the accompanying Judgment) alone, and with no other actions,meetings, hearings or decisions being necessary. This Agreement for Judgment and the attached Judgment shall apply to the parties hereto and their successors and assigns. The parties waive all rights of appeal for the proposed judgment submitted herewith. Each party shall bear its own costs, fees and expenses. The Plaintiff, By its attorneys, Dated: May.JG, 2005 giqfh n . Anderson,BB( #018700 Doug] H. Wilkins, BBO#528000 AND SON&KREIGER LLP 43 Thorndike Street Cambridge,MA 02141 (617)252-6575 The Defendants, The Board (including its members and associate members),Building Inspector and . the Town, By their attorneys, I � Elaine Lucas, BB 306670 Ellen Callahan Doucette(BBO# 542294) Brackett &Lucas 19 Cedar Street Worcester, MA 01609 508-799-9739 4 North Andover Board of Assessors Public Access Page 1 of 1 �`� . •,'�o 13oard of Assessors F � x � x Return to the Home page click on logo Parcel ID: 210/098.C-00024000.0 Community: Na New Search SKETCH PHOTO Sales N o %""S' ketch wooI"Ct t Summary Residence Availablei l Detached Structure Condo Commercial Comparable Sales Location: 1,3 CHESTNUT STREET Owner Name: SBA TOWERS,INC Owner Address: 5900 BROKEN SOUND PARKWAY,N W City: BOCA RATON State: FL ZIP: 33487 Neighborhood: 6-6 Land Area: 5.23 acres Use Code: 432-CBL-TV-TOWER Total Finished Area: 0 ASSESSMENTS CURRENT YEAR PREVIOU Total Value: 232,900 218,E Building Value: 24,100 24,1, Land Value: 208,800 194, Market Land Value: 208,800 Chapter Land Value: LATESTSALE Sale Price: 365,900 Sale Date: 10/29/1998 Arms Length Sale Code: B-NO- Grantor: BELTWIST INTRACORP DEVELOPMENT Cert Doc: Book: 05224 Page: 0212 http://csc-ma.us/NandoverPubAcc/j sp/Home.j sp?Page=3&LinkId=807290 6/13/2006 Property Record Card PARCEL_ID:210/098.0-0002-0000.0 MAP:098.0 BLOCK:0002 LOT:0000.0 PARCEL ADDRESS:L-3 CHESTNUT STREET PARCEL INFORMATION Use-Code: 432 Sale Price: 365,900 Book: 05224 Road Type: T Inspect Date: 05/13/1999 Owner: Tax Class: T Sale Date: 10/29/1998 Page: 0212 Rd Condition: P Meas Date: SBA TOWERS,INC Tot Fin Area: 0 Sale Type: L Cart/Doc: Traffic: M Entrance: Address: Tot Land Area: 5.23 Sale Valid: B Water: Collect Id: JBS 5900 BROKEN SOUND PARKWAY,N W Grantor: BELTWIST DEVELOPMENT Sewer: Inspect Reas: BOCA RATON FL 33487 Exempt-B/L% / Resid-B/L% 0/0 Comm-13/000/100 Indust-B/L% 0/0 Open Sp-B/L% 0/0 LAND INFORMATION NBHD CODE: 6 NBHD CLASS: 6 ZONE: R3 Seg Type Code Method Sq-Ft Acres influ Y/N Value Class 1 P 130 S 43560 1 188,963 2 R 130 A 4.23 19,881 DETACHED STRUCTURE INFORMATION Str Unit Msr-1 Msr-2 E-YR-Blt Grade Cond%Good P/F/E/R Cost Class AN F 60 1999 A A ///97 21,100 3 C6 F 160 1999 A A ///97 11900 3 SE S 96 1999 A A ///97 1,100 3 VALUATION INFORMATION Current Total: 232,900 Bldg: 24,100 Land: 208,800 MktLnd: 208,800 Prior Total: 218,800 Bldg: 24,100 Land: 194,700 MktLnd: 194,700 SKETCH PHOTO Ct Avall4able,look. Parcel ID:210/098.0-0002-0000.0 as of 6/13/06 Page 1 of 1 Cingular tonight _ Page 1 of 1 Glennon, Michel From: Thomas J. Urbelis[tju@uf-law.com] Sent: Tuesday,June 13,2006 9:59 AM To: Glennon, Michel Subject: RE: Cingular tonight Yes. From: Glennon, Michel[mailto:mglennon@townofnorthandover.com] Sent:Tuesday,June 13, 2006 8:21 AM To:Thomas J. Urbelis Subject: Cingular tonight Hello,Atty. Urbelis; If you are coming to the meeting tonight,would you be able to be there for an Executive Session at 7:00 before the regular 7:30? Ellen McIntyre is calling for an Executive Session tonight. Mich. - 6/13/2006 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tjuguf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 July 6, 2006 North Andover Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street North Andover, MA 01845 RE: NEW CINGULAR WIRELESS PCS LLC VS. TOWN OF NORTH ANDOVER Dear Members of the Board: Enclosed please find: 1. E-mail dated July 3, 2006 from Attorney Douglas Wilkins; and 2. E-mail dated July 6, 2006 from Attorney Douglas Wilkins along with his suggested revised Agreement for Judgment. Very truly yours, Thomas J. belis TJU/kmp Enclosure is BOARD OF APPEALS w wp5I\work\n-andove\corresp\zoning board.ltr-cingularldoc C J Page 1 of 2 Thomas J. Urbelis From: Douglas Wilkins [DWilkins@Anderson Kreiger.com] Sent: Monday, July 03, 2006 9:40 AM To: Thomas J. Urbelis Cc: Stephen D. Anderson; Scott F. Lacy; David.Gale@cingular.com; kevin.mason2@cingular.com; jay.perez@cingular.com Subject: RE: N. Andover Legal Notice Tom: Thanks for your draft agreement for judgment. I would very much like to resolve this this week. If you could email a word version, that would help expedite my comments. My comments: 1. Item 3, page 2 and page 4: Cingular will "paint to match" if the Board so specifies promptly (say, by July 20). It cannot accept a belated order to paint to match once construction is underway or complete. Perhaps this color issue can even be resolved this week. 2. Item 4, page 2 and page 4: Cingular now has a special permit. I therefore propose deleting "special permit and". It does need a building permit, so that stays. 3. p. 5 item D -same comment: delete reference to the need for a special permit. 4. Page item C -Count VIII challenges the Town's annual requirement for RF monitoring. Since we started drafting, the Planning Board's Special Permit has, unfortunately, included condition 2(b), which purports to impose an RFR monitoring requirement. The Federal Court stipulation, item C therefore needs also to say: "Nothing in the Special Permit for the Site shall operate to impair or defeat any right claimed in Count III-VIII, inclusive, including but not limited to condition 2(b) relating to RFR measurements; and any condition therein shall be subject to challenge in the event a dispute arises over the validity or enforceability of the condition(s) on grounds set forth in Counts III-VIII ". In this regard, please note that the 30 day federal TCA appeals period has not run on the Planning Board's decision, so this issue is very much open. 5. We need to attach a proposed judgment that the Court can sign. Doug From: Thomas J. Urbelis [mailto:tju@uf-law.com] Sent: Monday, May 01, 2006 10:21 AM To: Douglas Wilkins Subject: RE: N. Andover Legal Notice I have no problem with dismissing the challenges to the bylaw"without preduice" and this could be added to the Agreement for Judgment I sent to you on January 25, From: Douglas Wilkins [mailto:DWilkins@AndersonKreiger.com] Sent: Monday, May 01, 2006 9:10 AM To: Thomas J. Urbelis Cc: Stephen D. Anderson; Scott F. Lacy E CSPe j: F Andover Legal Notice JUL 1 0 2006 BOARD 80 AL S Page 2 of 2 The notice looks OK, particularly since I am not aware of any legal requirements regarding such a notice. It did remind me, however, that the settlement will need to be clear that our general challenges to the bylaw provisions (especially counts 6, 7 and 8)will have to be "without prejudice" dismissals, unless we come to agreement on the substance, and assuming that future events prior to dismissal do not require prompt resolution. I will ask the client about the cost of publication and notice, where the Town is following a voluntary notice and publication procedure. I understand that it may be prudent for everyone, including Cingular, to do it this way. Doug From: Thomas J. Urbelis [mailto:tju@uf-law.com] Sent: Friday, April 28, 2006 4:30 PM To: Douglas Wilkins Subject: FW: N. Andover Legal Notice Doug.........(1) Does this notice look ok to you and (2)will you agree to pay for publication and notice to abutters? Thanks. Tom. From: Kelly M. Patterson Sent: Friday, April 28, 2006 3:25 PM To: Thomas J. Urbelis Subject: N. Andover Legal Notice Kelly Patterson Urbelis& Fieldsteel, LLP 155 Federal Street Boston,MA 02110 Phone No. (617)338-2200 Fax No. (617)338-0122 JUL 10 2006 D BOARD OF APPEALS 7/6/2006 Page 1 of 1 Thomas J. Urbelis From: Douglas Wilkins [DWilkins@AndersonKreiger.com] Sent: Thursday, July 06, 2006 2:17 PM To: Thomas J. Urbelis Cc: Stephen D. Anderson; David.Gale@cingular.com; kevin.mason2@cingular.com; jay.perez@cingular.com; Scott F. Lacy Subject: RE: N. Andover/Cingular Attachments: Revised Agreement for Judgment-redline.doc; Revised Agreement for Judgment.doc Thanks, Tom. I attach both a redlined and clean version with my proposed language. We have always included a separate document entitled "Judgment" for the Court to sign, so that it is clear on the record that it is a final judgment of the Court. The language just tracks the language of the Agreement. Let me know if we are now in a position to file with the Court. IF you authorize me to sign for you, I will file it electronically. Thanks, Doug From: Thomas J. Urbelis [mailto:tju@uf-law.com] Sent: Thursday, July 06, 2006 2:27 PM To: Douglas Wilkins Subject: FW: N. Andover/ Cingular Doug......per your request. Tom. From: Kelly M. Patterson Sent: Thursday, July 06, 2006 1:24 PM To: Thomas J. Urbelis Subject: N. Andover/ Cingular Kelly Patterson Urbelis& Fietdsteel, LLP 155 Federal Street Boston, MA 02110 Phone No. (617)338-2200 Fax No.(617)338-0122 JUL 10 2006 BOARD OF APPEALS 7/6/2006 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No.05CV 11841 NG NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) TOWN OF NORTH ANDOVER,MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ) ALBERT P. MANZI III,JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER,DANIEL S. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. ) VAILLANCOURT, as they are members and associate ) Members of the Board, ) Defendants ) AGREEMENT FOR JUDGMENT WHEREAS New Cingular Wireless PCS,LLC("Cingular"), applied to the Zoning Board .,,{ Deleted: of Appeals(the"Board")of the Town of North Andover,Massachusetts(the"Town")ford dimensional variance from the setback provisions of Section 8, Paragraph 8.9(3)(c)(v)of the Zoning Bylaw,minimum requirements of the distance to lot lines, in order to install additional antennas on the existing antenna tower off Chestnut Street,North Andover,MA as shown on Assessors Map 98C,Lot 2("Site"). WHEREAS the Board issued a Decision,filed with the North Andover Town Clerk on August 23,2005 (the"Decision"). WHEREAS the Decision, by a 2-2 vote, denied the request for a variance for Cingular's proposed facility. WHEREAS, Cingular timely appealed the Decision,under both Section 704 of the Telecommunications Act of 1996,Pub. L.No. 104-104("the Telecommunications Act"), Deleted:s9wp51\worke1' andove\cingular\revised agreement for judgment.doc 41 n.nt.,n I Bing.\I}u ail I_ I.Itii�,i 1_,_nn n_i 1 liics+ik2 \,., 1 igr«:m i t. l.�snic.I Ilinc_�ry._ ______,__ JUL102006 D BOARD OE APPEALS codified at Section 332(c)(7)of the Communications Act of 1934,47 D.S.C. §§ 151-691, and Mass. Gen.Laws c.40A, § 17. WHEREAS,without any admission of fact, law or liability,Cingular and the Board of Appeals agree that it is in their best interests to settle this litigation by(a)reversing the decision of the Board denying the Variance, and(b)granting the requested relief with certain conditions imposed upon the Variance to be issued under this Agreement for Judgment and the Judgment entered pursuant hereto. WHEREAS,the parties agree that the following conditions should be imposed upon the Variance to be issued under this Agreement for Judgment and the Judgment entered pursuant hereto: (1) The facility must be installed upon the lattice tower at the Site, substantially as shown on the plans submitted to the Board and approved by this Agreement for Judgment and any necessary construction drawings to implement the same; provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. (2) The existing height of the lattice tower structure shall not be increased by virtue of this installation(except that nothing in this Judgment shall preclude the Board from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Agreement imposes no obligation to approve such an application). (3) Upon request of the Board made on or before July 20,2006,Cingular or its contractor must paint or otherwise,cause, and maintain,the antennas to reasonably 1 Deleted:, match the color of the existing tower. (4) Cingular must obtain a,building permit prior to installing the additional antennas. Deleted special peiimt and WHEREAS, without any admission of fact, law or liability,and solely for purposes of settling this litigation, Cingular has proposed to construct and operate its facility, in accordance with the conditions set forth in the preceding paragraph, and, subject only to revisions that reflect 2 those conditions, substantially in accordance with the following plans prepared by Clough Harbour& Associates LLP and any construction drawings necessary to effectuate the same(the '. Deleted:T I Facility"):, Deleted:¶ ---------- WHEREAS, -------WHEREAS,the Parties agree that the proposed Judgment shall allow for the grant of the DRAWING NO. TITLE REVISION DATE Tot Title Sheet 12/23/04 COIA Comprehensive Site Plan 12/23/04 C0113 Adjoining Structures Plan 4/28/05 COIL Adjoining Structures Plan 7/7/05 C01 Site Plan 12/23/04 CO2 Tower Elevations&Details 12/23/04 crn Structural Details 12/23/04 C04 Structural Details 12/23/04 C05 Structural Notes 12/23/04 E01 Power&Telephone Plan 12/23/04 E02 Grounding Plan 12/23/04 E03 Electrical Details 12/23/04 E04 Electrical Details 12/23/04 E05 Electrical Details 12/23/04 E06 Electrical Specifications 12/23/04 Variance, with the terns and conditions stated above.Nothing herein shall obviate the need for Cingular to obtain a building permit from the North Andover Building Inspector or a special permit or other non-zoning related permit from any local, state,or other authority. WHEREAS,there is no just cause for delay, and a remand to the Board would serve no useful purpose. NOW THEREFORE,the parties,through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment(in the form submitted herewith)as follows: A. Counts I and II On Counts I and II of the Complaint,without any admission of fact, law or liability,and solely for purposes of settling this litigation,the parties through their duly authorized counsel, stipulate and agree to the entry of Final Judgment such that the Decision shall be and hereby is (a)reversed to the extent it denied the requested variance as petitioned for Cingular's proposed Facility, (b)amended and modified to grant said variance,with the above conditions, for the proposed Facility, subject to the following conditions,which may be modified only pursuant to properly noticed Town zoning proceedings: I. The facility must be installed upon the lattice tower at the Site, substantially as shown on the plans submitted to the Board and approved by this Agreement for Judgment and any necessary construction drawings to implement the same; provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. 2. The existing height of the lattice tower structure shall not be increased by virtue of this installation(except that nothing in this Judgment shall preclude the Board from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Agreement imposes no obligation to approve such an application). 3. Upon request of the Board made on or before July 20,2006, Cingular or its contractor must paint or otherwise cause, and maintain,the antennas to reasonably match the color of the existing tower. 4 4. Cingular must obtain a puilding permit prior to installing the additional antennas. {Deleted special pennit and C. Other Counts The parties further stipulate and agree that Counts III, IV,V,VI,VII and VIII shall be _ -I Formatted:Font:(Default)Times dismissed without prejudice and without costs.Nothinu in the Special Permit for the Site shall New Roman,12 pt operate to impair or defeat any ri(>ht claimed in Count III-VIII. inclusive. including but not -I Formatted:Font:(Default)Times limited to Special Permit condition 2(b)relating to RF R measurements: and any condition in the New Roman,12 pt Formatted:Font:(Default)Times Special Pernlil shall be subject to challeng Ill the event a dispute arlses over the yaIidit� or New Roman, 12 pt enforceability of the condition(s)on grounds set forth in Counts III-VIII D. General Provisions The parties further stipulate and agree that there is no just cause for delay in the immediate entry of said Judgment and the immediate issuance of said variance by this Agreement for Judgment alone, and with no other actions,meetings, hearings or decisions being Meted permit or a special ._...... . ......-- __........ . ..., _..— necessary. However, nothing in this Agreement shall obviate the need for a building,permit.No work on the Site shall begin prior to the issuance of a building permit.The parties waive all rights of appeal from the Judgment submitted herewith.Each party shall bear its own costs, fees and expenses. The Plaintiff, The Defendants, By its attorneys, The Board(including its members and (associate members),and the Town, By their attorneys, Stephen D. Anderson Thomas Urbelis Douglas H. Wilkins, Urbelis&Fieldsteel, LLP ANDERSON& KREIGER LLP 155 Federal Street 43 Thorndike Street Boston, Massachusetts 02110 Cambridge, MA 02141 (617)338-2200 5 (617)252-6575 6 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 05CV 11841 NG NEW CINGIILAR WIRELESS PCS LLC, 1 Plaintiff. ) TOWN OF NORTH ANDOVER.. MASSACHUSETTS. ) BOARD OI' APPEALS of the TOWN OF NORTH ) _ANDOVER. ELLEN MCINTYRE. RICHARD.l. BYERS. ) ALBERT P. MANLI III JOSEPH D. LaGRASSE. ) DAVID R. WEBSTER. DANIEL S. BRAISE. ) THOMAS D. IPPOLITO, RICHARD M. ) VAILLANCOURT.as they are members and associate ) Members of the Board. ) Defendants ) JUDGMENT "This case having come before the Court on the parties" Final Agreement for.ludement t"Agreement for Judgment'). it is hereby ordered. adjudLied and declared as follows: 1. Counts Determined On Counts I and II of the Complaint.the Decision shall be and hereby is(a) reversed to the extent it denied the requested variance as,petitioned for C ingular's proposed Facility,, (b) amended and modified to_arant the variance for the proposed I'acility, subject to the following conditions,which may be modified.only pursuant to properly noticed Town z.onir proceedings: 1. The facility must be installed upon the lattice tower at the Site. substantially as shown on the plans submitted to the Board and cited in the Agreement for JUdgment and any necessary construction drawing)s to implement the same: provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. 2. The existing, hei17ht of the lattice tower structure shall not be increased by virtue —of this installation (except that nothing in this Judgment shall preclude the Board from approving a taller hei(—),ht upon application duly submitted under the Town's 7 zoning ordinance:and this Agreement imposes no obligation to apprOVe such an application). _3. U ton request of the Board made on or before July 20.2006.Cin ular or its contractor must paint or otherwise cause and maintain. the antennas to reasonably match the color of the existinay tower. 4 Circular must obtain a building permit to installing the additional antennas. 2. Other Counts Pursuant to the parties' stipulation Counts 111. IV V. VI VII and Vill are dismissed without preiudicc and without costs Nothing in the Special Permit for the Site shall operate to impair or defeat any right claimed in Count III-VIII. inclusive includine bill not limited to Special Permit condition 2(b) relating T to R1=R measurernents:and anv condition in the Special Permit shall be subject to challenge in the event a dispute arises over the validity or enforceability of the condition(s)on grounds set forth in Counts III-VIII 3. General Provisions There is no just cause for delay in the immediate entry of said Judgment and the immediate issuance of said variance by this Agreement for Jud> mens alone. and with no other actions meetings hearings or decisions being necessary. However. nothing in this Agreement shall obviate the need for a building permit. No work on the Site shall begin prior to the issuance of a bUddin permit Each party shall bear its own costs,fees and expenses. ' l3ythe Court: �, Deleted:Approved and Entered as a �� Judgment of Deleted: Deleted ¶ 9 Nancy Gertner,District Court Judge 1,4 Deleted:¶ � 9 — ------ 9 1( 8 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS I URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 July 19, 2006 North Andover Planning Board North Andover Zoning Board of Appeals Town of North Andover North Andover Town Offices Ces 1600 Osgood Street 1600 Osgood Street North Andover, MA 01845 North Andover, MA 01845 RE: NEW CINGULAR WIRELESS PCS LLC v.TOWN OF NORTH ANDOVER,ET AL. Dear Members of the Boards: Enclosed please find a copy of a letter dated July 18, 2006 from Attorney Douglas Wilkins along with the referenced enclosures. Very truly yours, Thomas J. Urbelis TJU:kmp Enclosures JUL 2 0 2006 D� BOARD OF APPEALS o wp511work•ai-andove\cingular\planning board-zba.Itr.doc ANDERSON KREI GERLLP DOUGLAS H.WILKINS dwilkins@andersonkreiger.com July 18, 2006 By Fax (617) 338-0122 and Mail Thomas J. Urbelis, Esq. Urbelis &Fieldsteel LLP 155 Federal Street Boston, MA 02110 Re: New Cingular Wireless PCS LLC v. Town of North Andover, et al. Civil Action Docket No.: 05-1580B Dear Tom: It has been impossible to reach you by phone(and often to receive responses by email)to resolve the final aspects of the consent decree. Not having heard from you, I had to file the motion to amend the complaint in the federal case to avoid potential loss of my client's rights. I believe I made clear through emails at tate time that this v:as a protective, not an aggressive, filing and that I hoped we would soon settle the case. I did,however, receive your letter of July 14,which sets forth your position. Because you seem to view the matter in a more adversarial light than I do, I thought I would clarify our position. The bottom line ,S that we are iinereiy trying to presel,'ve evelyone's rights regarding the radio frequency monitoring issue. I thought that was a mutually shared goal and would be surprised and disappointed to learn that this is not true. In order to accomplish that, all we need to do is adopt the approach contained in my July 3 email, which makes clear that in the event of a future dispute over RF monitoring, no arguments are waived by reason of the RF monitoring condition in the Planning Board's decision. At any rate, our position on the RF monitoring question is clearly set forth in Count VIII of the complaint. I do not see how my efforts to preserve these rights against the invocation of the RF monitoring bylaw (including, most recently,by the Planning Board) can be a"total surprise" to you. I am sure that you expect me to preserve my client's rights. Because the Planning Board decision came after our initial negotiations, I had to take steps to do so, in response to your latest [&4aA A did not reflect the special permit decision. Among those steps is making sure that I JUL Co 0 2006 43 Thorndike Street - Cambridge, MA 021411-1764 - (617) 252-6575 • Fax: (617) 252-6899 BOARD OF APPEALS C� Primed 0n rccycled Darer Thomas J. Urbelis, Esq. July 18, 2006 Page 2 no one can argue in the future that the Planning Board's condition takes away the very same rights that we asserted in Count VIII of the Complaint. Our original plan to dismiss that count "without prejudice" was premised upon the notion that everyone's rights would be preserved in the future if litigation becomes necessary. I am sure that neither you nor the Town intentionally would undermine that premise through the Planning Board's decision, and I assume that the issuance of the RF condition, with Count VIII pending, was never intended to undermine the settlement. Therefore, we should agree to appropriate reservation-of-rights language. From the outset of this lawsuit, the complaint has articulated our client's current position. on RF monitoring. Your letter asserts that a nearly-expired November 2001 special permit condition imposed by the Town's Planning Board is somehow inconsistent with our current position, simply because we did not sue in 2001. This is the sort of argument that the Town might make if I simply did what you ask. It is precisely why I have to protect my client's rights now. There are two reasons why your reference to the 2001 condition does not solve any problem. First, our experience has changed since 2001. I think you are aware of the Billerica litigation, involving a dispute that arose in 2003. New Cingular Wireless PCS, LLC v. Town of Billerica, Civil Action No. 03-12105-NMG(D. Mass.). In the event that you are not, I enclose a copy of the consent decree, resolving that matter by an order enjoining enforcement of Billerica's RF monitoring bylaw. In that case, among other things, Billerica argued that AT&T Wireless (now known as New Cingular Wireless, PCS, LLC) had lost rights by reason of a condition in the special permit. Fortunately, the Billerica Special Permit incorporated AT&T Wireless' position by reference. Notwithstanding the pendency of Count VIII, the North Andover Special Permit does not. Hopefully, therefore, you can see my concern that the Town will try to raise an argument that may impede assertion of Cingular's rights in the future, even though we would oppose any such argument. The regulations cited in the consent decree may even convince you that our position is correct on the merits, in which case we should enter a decree like the Billerica decree (as I originally proposed, you may recall). Second, the Planning Board's 2006 RF monitoring condition is even less appropriate than the 2001 Stevens Estate condition in at least two ways. First, we view the 2001 condition as meaning that compliance with FCC regulations is enough— the FCC does not require monitoring to demonstrate compliance, because the height of the installation results in such a low RF emissions level that monitoring is completely unnecessary. The 2006 condition, by contrast, speaks of"measurements", which the FCC does not require. Second, the 2006 condition appears to make Cingular responsible for monitoring all emissions on the tower, not just its own, even though Cingular does not own the tower. This was not in the 2001 special permit and is not consistent with FCC requirements. So, even on its own terms without regard to intervening experience, the 2001 special permit is not precedent. In light of the above, you can probably understand why withdrawing the motion to amend without sufficient protection would jeopardize my client's rights in a way that is totally unnecessary. If you feel that we cannot resolve Count VIII in this manner, then I suggest that we ANDERSON ���KREIGERLLP �?prinred on recycled paper _ Thomas J. Urbelis, Esq. July 18, 2006 Page 3 enter a partial consent decree as to the other counts. If this is not acceptable; then, as I have stated, the Town needs to file the administrative record forthwith, as it was due in Court on June 30. Hopefully, this letter will promote the kind of understanding that I hoped to accomplish in a phone conversation. Please call if you wish to discuss it further. 6Do ere y, glasH. Wilkins Cc: Clients Enclosure \\fileserver\data\DOCS\CIN\MA\NorthAndoverChestnut\L\Urbelis010.doc ANDERSON&KREIGERLLP prmrc d—rery ko paper UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 03-12105-NMG Sd NEW CINGULAR WIRELESS PCS, LLC (formerly ) P. AT&T WIR3LESS PCS, LLC,d/b/a AT&T WIRELESS), ) Plaintiff, ) V. ) TOWN OF BILLERICA,MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF ) BILLERICA.and RICHARD A. COLANTUONI,DORIS ) M. PEARSGN, ELLEN SARGENT, JOSEPH P. SHAW ) and JOHN F. GRAY, Jr. as they are Members and ) Alternate Members of the Board, and ) MILTON KINNEY as he is Building Inspector ) for the Towr of Billerica, ) Defendants. ) AGREEMENT FOR JUDGMENT WHEREAS, on or about July 22, 2003,Milton Kinney, the Billerica Inspector of Buildings("Building Inspector"), sent to the plaintiff, AT&T Wireless PCS, LLC ("AWS"), a Notice("Building Inspector's Notice") asserting that, for each AWS vwireless communiications facility in Billerica, AWS was required to comply with the Billerica Bylaw's requirement for annual testing, monitoring, certification and reporting regarding emissions from Personal Communication Services ("PCS") facilities,commonly known as cell towers. WHEREAS, AWS applied to the Beard of Appeals(the "Board") of the Town of Billerica(the "Town") for relief from the Building Inspector's Notice. WHEREAS, the Board issued a decision, filed with the Billerica Town Clerk on October 10, 2003, denying AWS' appeal (the"Decision"). WHEREAS, the Federal Communications Commission's ("FCC") regulations,including but not limited to the table in 47 C.F.R. 1.1307(b), show that PCS facilities are categorically excluded froin routine evaluation for RF emissions as long as they are not attached to a building; are 10 meters (approximately 32.8 feet) above ground,given the power levels at which AWS' facilities operate. WHEREAS, at all four of its Billerica sites,AWS' antennas are not attached to buildings; are located veil in excess of 10 meters above ground level("AGL"), with an antenna center line ranging front 115 feet to 125 feet AGL. WHEREAS,AWS timely appealed the Decision under both Section 704 of the Telecommunications Act of 1996, Pub.L.No. 104-104("the Telecommunications Act"), codified at Section 332(c)(7) of the Communications Act of 1934, 47 U.S.C. §§ 151-691, and the Massachusetts Zoning Act,M.G.L. c. 40A, § 17. WHEREAS, AWS's complaint also challenged certain provisions of the Town's Wireless Telecommunications Zoning Bylaw, including the Bylaw as amended in 1999 adding Section 5.17(E) (1999 RF Requirement") and Section 5.C.11(2)(c)(XIIn(1-4)of the Bylaw(later renumbered as Sections 5.G.1.k(2)(c).1-XXV))("Current RF Requirement"), which as most recently amended at the time of the Decision,set forth certain annual RF testing,monitoring, certification and reporting requirements for permitted Personal Wireless Communication Facilities in the Town. I WHEREAS, as a result of an acquisition in 2004,the name of the plaintiff in this matter changed fror i AT&T Wireless PCS, LLC to New Cingular Wireless PCS LLC, a Delaware limited liability company("New Cingular"). The new parent of the plaintiff is Cingular Wireless LLC ("Cingular"). WHEREAS, without any admission of fact,-law or liability,New Cingular,the Board (including it;;members and associate members),the Building Inspector and the Town agree that it is in their be;A interests to settle this litigation by(a)revoking the Decision and replacing it with a 2 decision upholding AWS' appeal, (b)revoking the Building Inspector's Notice, (c) declaring that application c f Billerica's RF Monitoring Bylaw shall conform to the requirements and exemptions of federal telecommunications statutes and regulations with respect to New Cingular's and Cingular's existing and future installations and(d)dismissing certain remaining claims. YnR',REAS,the Parties agree that the proposed Judgment shall allow for self-executing relief,with no other actions,meetings,hearings or decisions of the Board or Building Inspector being necessary with respect thereto. WHEREAS,there is no just cause for delay, and a remand to the Board would serve no useful purpose. NOVI THEREFORE,without any admission of fact,law or liability, and solely for purposes of;settling this litigation, all parties(New Cingular,the Board(including its members and associat,:members, the Building Inspector and the Town),through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment(in the form submitted herewith as Exhibit A) such that(a)the Decision shall be and hereby is vacated io the extent it denied AWS's appeal, and shall be and hereby is amended and modified to grant AWS's appeal,vacating the Building inspector's Notice,(b) the Building Inspector's Notice shall be and hereby is vacated, (c) the defer dants shall not.apply thel999 or current RF emissions requirement of the Bylaw to Cingular and New Cingular PCS facilities in the Town of Billerica. Nothing in this order shall prohibit the Town from adopting a Bylaw requiring the submission i:o the Town of a copy of any site-specific report required by the FCC regarding RF emissions measurements for facilities in Billerica, if that report has been submitted by the carrier as a public c.ocument to the FCC or successor agency. 3 The parties further stipulate and agree that Judgment shall enter for the Town on Count V, which shall he dismissed without costs. The parties further stipulate and agree that there is no just cause for delay in the immediate entry of said Judgment by this Agreement for Judgment(and the accompanying Judgment) alone, and with no other actions, meetings,hearings or decisions being necessary. This Agreement for Judgment and the attached Judgment shall apply to the parties hereto and their successors and assigns. The parties waive all rights of appeal for the proposed judgment submitted herewith. Each party shall b4;ar its own costs, fees and expenses. The Plaintiff, By its attorneys, Dated: May'. , 2005 Pn .Anderson,BBO#018700 Dougl . Wilkins, BBO #528000 AND ON&KREIGER LLP 43 Thorndike Street Cambridge,MA 02141 (617)252-6575 The Defendants, The Board (including its members and associate members),Building Inspector and . the Town, By their attorneys, �4�laineLucas, BB 306670 Ellen Callahan Doucette(BBO#542294) Brackett &Lucas 19 Cedar Street Worcester, MA 01609 508-799-9739 4 URBELIS&FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 September 12, 2006 Board of Selectmen North Andover Zoning Board of Appeals North Andover Town Offices 1600 Osgood Street 120 Main Street North Andover, MA 01845 North Andover, MA 01845 North Andover Planning Board 1600 Osgood Street North Andover, MA 01845 RE: NEW LINGULAR WIRELESS PCS LLC V. TOWN OF NORTH ANDOVER,ET AL. Dear Members of the Boards: Enclosed please find a copy of an Agreement for Judgment which was signed and filed with the Federal District Court on September 11, 2006. Please call if you have any questions. Very truly yours, 4 Thomas �. rbelis TJU:kmp Enclosure cc: Mark Rees (w/enc) Curt Bellavance (w/enc) Gerald Brown (w/enc) Lincoln Daley(w/enc) a � C� ri1 & [ SES 14 2006 BOArr)OF APPEALS s.wp5l\work\n-andove\cingular\bos,zba,pb.ltr.doc j n V ✓ 1(� + 01 t CI G Case 1:05-cv-1 1841-NG Document 16 Filed 09/11/2006 Page 1 of 8 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 05CV 11841 NG NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) TOWN OF NORTH ANDOVER, MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN MCINTYRE, RICHARD J. BYERS, ) ALBERT P. MANZI 111, JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIEL S. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. ) VAILLANCOURT, as they are members and associate ) Members of the Board of Appeals, and PLANNING ) BOARD OF NORTH ANDOVER, and Richard Nardella, ) John Simons, Richard Rowen, Alberto Angles, and Jack ) Green, as they are members and associate members of ) the North Andover Planning Board, ) Defendants ) AGREEMENT FOR JUDGMENT WHEREAS New Cingular Wireless PCS, LLC ("Cingular"), applied to the Zoning Board of Appeals (the "Board") of the Town of North Andover, Massachusetts (the "Town") for a dimensional variance from the setback provisions of Section 8, Paragraph 8.9(3)(c)(v) of the Zoning Bylaw, minimum requirements of the distance to lot lines, in order to install additional antennas on the existing antenna tower off Chestnut Street, North Andover, MA as shown on Assessors Map 98C, Lot 2 ("Site"). WHEREAS the Board issued a Decision, filed with the North Andover Town Clerk on August 23,2005 (the "Decision"). WHEREAS the Decision, by a 2-2 vote, denied the request for a variance for Cingular's proposed facility. g\docs\anunatiumhsndoverchesmut\p\agreement for judgment09-11-06 clean-final doc V Case 1:05-cv-11841-NG Document 16 Filed 09/11/2006 Page 2 of 8 WHEREAS, Cingular tirnely appealed the Decision, under both Section 704 of the Telecommunications Act of 1996, Pub. L. No. 104-104 ("the Telecommunications Act"), codified at Section 332(c)(7) of the Communications Act of 1934,47 D.S.C. §§ 151-691, and Mass. Gen.Laws c. 40A, § 17. WHEREAS, without any admission of fact, law or liability, Cingular and the Board of Appeals agree that it is in their best interests to settle this litigation by (a) reversing the decision of the Board denying the Variance, and (b) granting the requested relief with certain conditions imposed upon the Variance to be issued under this Agreement for Judgment and the Judgment entered pursuant hereto. WHEREAS, the parties agree that the following conditions should be imposed upon the Variance to be issued wider this Agreement for Judgment and the Judgment entered pursuant hereto: (1) The facility must be installed upon the lattice tower at the Site, substantially as shown on the plans submitted to the Board of Appeals and approved by this Agreement for Judgment and any necessary construction drawings to implement the same; provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. (2) The existing height of the lattice tower structure shall not be increased by virtue of this installation (except that nothing in this Agreement for Judgment shall preclude the Board of Appeals from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Agreement imposes no obligation to approve such an application). (3) Cingular or its contractor must paint or otherwise cause, and maintain, its antennas to be a non-reflective silver color to reasonably match the color of the existing tower. (4) Cingular must obtain a building permit prior to installing the additional antennas. 2 Case 1:05-cv-1 1841-NG Document 16 Filed 09/11/2006 Page 3 of 8 WHEREAS, without any admission of fact, law or liability, and solely for purposes of settling this litigation, Cingular has proposed to construct and operate its facility, in accordance with the conditions set forth in the preceding paragraph, and, subject only to revisions that reflect those conditions, substantially in accordance with the following plans prepared by Clough Harbour& Associates LLP and any construction drawings necessary to effectuate the same (the "Facility"): DRAWING NO. TITLE REVISION DATE T01 Title Sheet 12/23/04 COIA Comprehensive Site Plan 12/23/04 C01 B Adjoining Structures Plan 4/28/05 CO l C Adjoining Structures Plan 7/7/05 C01 Site Plan 12/23/04 CO2 Tower Elevations & Details 12/23/04 cm Structural Details 12/23/04 C04 Structural Details 12/23/04 C05 Structural Notes 12/23/04 E01 Power& Telephone Plan 12/23/04 E02 Grounding Plan 12/23/04 E03 Electrical Details 12/23/04 E04 Electrical Details 12/23/04 E05 Electrical Details 12/23/04 E06 Electrical Specifications 12/23/04 Case 1:05-cv-11841-NG Document 16 Filed 09/11/2006 Page 4 of 8 WHEREAS, the Parties agree that the proposed Judgment shall allow for the grant of the Variance, with the terms and conditions stated above. Nothing herein shall obviate the need for Cingular to obtain a building permit from the North Andover Building Inspector or a special permit or other non-zoning related permit from any local, state, or other authority. WHEREAS, there is no just cause for delay, and a remand to the Board would serve no useful purpose. NOW THEREFORE, the parties, through their duly authorized counsel, stipulate and agree to the entry of the Final Judgment (in the form submitted herewith) as follows: A. Counts I and II On Counts I and II of the Supplemental Amended Complaint, without any admission of fact, law or liability, and solely for purposes of settling this litigation, the parties through their duly authorized counsel, stipulate and agree to the entry of Final Judgment such that the Board of Appeals' Decision shall be and hereby is (a) reversed to the extent it denied the requested variance as petitioned for Cingular's proposed Facility, (b) amended and modified to grant said variance, with the above conditions, for the proposed Facility, subject to the following conditions, which may be modified only pursuant to properly noticed Town zoning proceedings: I. The facility must be installed upon the lattice tower at the Site, substantially as shown on the plans submitted to the Board of Appeals and approved by this Agreement for Judgment and any necessary construction drawings to implement the same; provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. 2. The existing height of the lattice tower structure shall not be increased by virtue of this installation (except that nothing in this Agreement for Judgment shall preclude the Board of Appeals from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Agreement imposes no obligation to approve such an application). 4 Case 1:05-cv-1 1841-NG Document 16 Filed 09/11/2006 Page 5 of 8 3. Cingular or its contractor must paint or otherwise cause, and maintain, its antennas to be a non-reflective silver color to reasonably match the color of the existing tower. 4. Cingular must obtain a building permit prior to installing the additional antennas. B. Other Counts The parties further stipulate and agree that Counts 111, IV, V, VI, Vll and VIII of the Supplemental Amended Complaint shall be dismissed without prejudice and without costs. Nothing in the Special Permit for the Site shall operate to impair or defeat any right claimed in Count III-VIII, inclusive, including but not limited to a challenge to Special Permit condition 2(b) relating to RFR measurements; and condition 2(b) in the Special Permit (and all provisions addressing the same subject matter) shall be subject to challenge in the event a dispute arises over the validity or enforceability of said condition on grounds set forth in Counts III-VIII. In any event.. the parties may not challenge, and shall be bound by, the terms of this Judgment. C. General Provisions The parties further stipulate and agree that there is no just cause for delay in the immediate entry of said Judgment and the immediate issuance of said variance by this Agreement for Judgment alone, and with no other actions, meetings, hearings or decisions being necessary. However, nothing in this Agreement shall obviate the need for a building permit. No work on the Site shall begin prior to the issuance of a building permit. The parties waive all rights ofappeal from the Judgment submitted herewith. Each party shall bear its own costs, fees and expenses. 5 Case 1:05-cv-1 1841-NG Document 16 Filed 09/11/2006 Page 6 of 8 The Plaintiff, The Defendants, By its attorneys, The Boards (including their members and (associate members), and the Town, By their attorneys, /s/ Stephen D. Anderson & Kreiger, LLP /s/Thomas Urbelis Stephen D. Anderson Thomas Urbelis Douglas H. Wilkins, Urbelis & Fieldsteel, LLP ANDERSON & KREIGER LLP 155 Federal Street 43 Thorndike Street Boston, Massachusetts 02110 Cambridge, MA 02141 (617) 338-2200 (6 17) 252-6575 6 Case 1:05-cv-1 1841-NG Document 16 Filed 09/11/2006 Page 7 of 8 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 05CV 11841 NG NEW CINGULAR WIRELESS PCS LLC, ) Plaintiff, ) V. ) TOWN OF NORTH ANDOVER, MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN McINTYRE, RICHARD J. BYERS, ) ALBERT P. MANZI III, JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIELS. BRAESE, ) THOMAS D. IPPOLITO, RICHARD M. ) VAILLANCOURT, as they are mernbers and associate ) Members of the Board of Appeals, and PLANNING ) BOARD OF NORTH ANDOVER, and Richard Nardella, ) John Simons, Richard Rowen, Alberto Angles, and Jack ) Green, as they are members and associate members of ) the North Andover Planning Board, ) Defendants ) JUDGMENT This case having come before the Court on the parties' Final Agreement for Judgment ("Agreement for Judgment"'), it is hereby ordered, adjudged and declared as follows: I. Counts Determined On Counts I and 11 of the Supplemental Amended Complaint, the Board of Appeals' Decision shall be and hereby is (a) reversed to the extent it denied the requested variance as petitioned for Cingular's proposed Facility, (b) amended and modified to grant the variance for the proposed Facility, subject to the following conditions, which may be modified only pursuant to properly noticed Town zoning proceedings: I. The facility must be installed upon the lattice tower at the Site, substantially as shown on the plans submitted to the Board of Appeals and cited in the Agreement for Judgment and any necessary construction drawings to implement the same: provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. Case 1:05-cv-1 1841-NG Document 16 Filed 09/11/2006 Page 8 of 8 2. The existing height of the lattice tower structure shall not be increased by virtue of this installation (except that nothing in this Judgment shall preclude the Board of Appeals from approving a taller height upon application duly submitted under the Town's zoning ordinance; and this Judgment imposes no obligation to approve such an application). 3. Cingular or its contractor must paint or otherwise cause, and maintain, its antennas to be a non-reflective silver color to reasonably match the color of the existing tower. 4. Cingular must obtain a building permit prior to installing the additional antennas. 2. Other Counts Pursuant to the parties' stipulation, Counts III, IV, V, VI, VII and Vlll of the Supplemental Amended Complaint are dismissed without prejudice and without costs. Nothing in the Special Permit for the Site shall operate to impair or defeat any right claimed in Count 111-Vill, inclusive, including but not limited to the challenge to Special Permit condition 2(b) relating to RFR measurements; and condition 2(b) in the Special Permit shall be subject to challenge in the event a dispute arises over the validity or enforceability of said condition on grounds set forth in Counts III-VIII. In any event, the parties may not challenge, and shall be bound by, the terms of this Judgment. 3. General Provisions There is no just cause for delay in the immediate entry of this Judgment and the immediate issuance of said variance by this Judgment alone, and with no other actions, meetings, hearings or decisions being necessary. However, nothing in this Judgment shall obviate the need for a building permit. No work on the Site shall begin prior to the issuance of a building permit. Each party shall bear its own costs, fees and expenses. By the Court: Nancy Gertner, District Court Judge 2 URBELIS&FIELDSTEEL, LLP 155 FEDERAL STREET % BOSTON, MASSACHUSETTS 02110-1727 THOMAS I URBELis Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 September 29, 2006 North Andover Zoning Board of Appeals Town of North Andover 1600 Osgood Street North Andover, MA 01845 RE: NEW CINGULAR WIRELESS PCS LLC V. TOWN OF NORTH ANDOVER, ET AL. Dear Members of the Boards: Enclosed please find a copy of the Judgment entered on September 25, 2006. Please call if you have any questions. Very truly yours, Thomas.J. Ubelis TJU:j eh Enclosure cc: Board of Selectmen Planning Board Mark Rees Joyce Bradshaw Curt Bellavance Gerald Brown OCT 2 - 2006 BOARD OF APPEALS s:`.wp51\work\n-andove\cingular\zba.IIttr.doc /; Y Case 1:05-cv-1 1841-NG Document 17 Filed 09/25/2006 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No.05CV 11841 NG NEW CINGULAR WIRELESS PCS LLC, } Plaintiff, ) v. ) TOWN OF NORTH ANDOVER, MASSACHUSETTS, ) BOARD OF APPEALS of the TOWN OF NORTH ) ANDOVER, ELLEN McINTYRE, RICHARD J.BYERS, ) ALBERT P. MANZI III,JOSEPH D. LaGRASSE, ) DAVID R. WEBSTER, DANIEL S. BRAESE, ) THOMAS D. IPPOLITO,RICHARD M. ) VAILLANCOURT, as they are members and associate ) Members of the Board of Appeals, and PLANNING ) BOARD OF NORTH ANDOVER, and Richard Nardella, ) John Simons,Richard Rowen, Alberto Angles,and Jack ) Green,as they are members and associate members of ) the North Andover Planning Board, ) Defendants ) JUDGMENT This case having come before the Court on the parties' Final Agreement for Judgment ("Agreement for Judgment"), it is hereby ordered,adjudged and declared as follows: I. Counts Determined On Counts I and II of the Supplemental Amended Complaint, the Board of Appeals' Decision shall be and hereby is (a) reversed to the extent it denied the requested variance as petitioned for Cingular's proposed Facility,(b)amended and modified to grant the variance for the proposed Facility, subject to the following conditions,which may be modified only pursuant to properly noticed Town zoning proceedings: 1. The facility must be installed upon the lattice tower at the Site,substantially as shown on the plans submitted to the Board of Appeals and cited in the Agreement for Judgment and any necessary construction drawings to implement the same; provided however that the plans may be modified to conform to requirements imposed by applicable law or by other Boards or Officials of the Town of North Andover. OCT N Z006 J Case 1:05-cv-1 1841-NG Document 17 Filed 09/25/2006 Page 2 of 2 2. The existing height of the lattice tower structure shall not be increased by virtue of this installation(except that nothing in this Judgment shall preclude the Board of Appeals from approving a taller height upon application duly submitted under the Town's zoning ordinance;and this Judgment imposes no obligation to approve such an application). 3. Cingular or its contractor must paint or otherwise cause, and maintain, its antennas to be a non-reflective silver color to reasonably match the color of the existing tower. 4. Cingular must obtain a building permit prior to installing the additional antennas. 2. Other Counts Pursuant to the parties' stipulation, Counts 11I,IV, V, VI, VII and VIII of the Supplemental Amended Complaint are dismissed without prejudice and without costs. Nothing in the Special Permit for the Site shall operate to impair or defeat any right claimed in Count III-VIII, inclusive, including but not limited to the challenge to Special Permit condition 2(b)relating to RFR measurements; and condition 2(b) in the Special Permit shall be subject to challenge in the event a dispute arises over the validity or enforceability of said condition on grounds set forth in Counts III-VIII. In any event,the parties may not challenge, and shall be bound by,the terms of this Judgment. 3. General Provisions There is no just cause for delay in the immediate entry of this Judgment and the immediate issuance of said variance by this Judgment alone, and with no other actions, meetings,hearings or decisions being necessary. However, nothing in this Judgment shall obviate the need for a building permit.No work on the Site shall begin prior to the issuance of a building permit. Each party shall bear its own costs, fees and expenses. By the Court: Nancy Gertner,Ottrict ourt Judge 2 ,,uavp Town of North Andover Planning Department 1600 Osgood Street, Bldg. 20,Suite 2-36 North Andover, Massachusetts 01845 Phone: 978-688-9535 Fax: 978-688-9542 M-E-M-O TO: Minuteman Press FROM: Mary Ippolito, Planning Departmenf& Mitch Glennon, Zoning Appeals ' DATE: July 31, 2006 SUBJECT: Request for one copy of each including plan of land. Attached are files belonging to the Town of North Andover. Please make one copy of each including the plan of land. Per request of our Town attorney, please bill the invoice to the following person: Attorney Thomas Urbelis Urbelis, Fieldsteel&Bailin LLP 155 Federal Street Boston, MA 02110 Thank you. Page I of 2 Glennon, Michel From: Atty.Albert P.Manzi III [attymanzi@manzilaw.net] Sent: Friday,March 09,2007 12:51 PM To: Thomas J. Urbelis Subject: RE: 2 questions Tom.......as a follow up I am still of the opinion a "variance decision" must issue for the applicant, and since the matter was published, I will put it on the agenda for March 13th to comply with the Agreement for Judgment. Give me a call if needed. APM "Thomas I Urbetis"<#u@uf-law com>wrote: Al......The Judgment itself granted the variance with conditions. Tom. From: Atty.Albert P. Manzi III[mailto:attymanzi@manzilaw.net] Sent: Friday, March 02, 2007 12:51 PM To:Thomas J. Urbelis Cc: Michele Glennon;Gerry Brown Subject: RE: 2 questions Tom......To the best of my knowledge and belief: The Agreement for Judgment calls for issuing a Variance,which,to my knowledge has not occurred. However a new public hearing was advertised. The Board has taken no action other than to authorize Counsel to enter into Agreement for Judgment on the Boards behalf APM III "Thomas I Urbelis"<ju af-tawcom>wrote: (2)The Board of Appeals does not need to do anything as long as the application for building permit complies with the four conditions as recited in the Judgment ,and also the plans as previously submitted to the Board of Appeals as referenced in the Agreement for Judgment which is in the Board's files ,and the conditions of the Site Plan Special permit approved by the Planning Board May 31,2006. From: Glennon, Michel [mailto:mglennon@tbwnofnorthandover.com] Sent:Thursday, March 01, 2007 3:01 PM To:Thomas J. Urbelis Cc: Atty. Albert P. Manzi, III Subject: 2 questions 3/9/2007 Page 2 of 2 1. should the<<legal 2007 Mar 27.doc>>40B legal notice use the word"appeal"or "application"? 2. Does the Board need to do anything about the remanded Cingular?, or, is the signed agreement and the Planning Board decision sufficient? Mich. Attorney Albert P. Manzi III 24 Main Street North Andover, Massachusetts 01845 Tel. 978-681-6618 Fax. 978-681-6628 website: www.manzilaw.net Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above.Any other reading, dissemination, distribution or reproduction is prohibited If you receive this email in error, r lease notifythe sender immediately by telephone and reply email and fully delete the email eceived without making a copy of the email or any attachments. 4ttorney Albert P. Manzi III t4 Main Street Vorth Andover, Massachusetts 01845 Tet. 978-681-6618 Fax. 978-681-6628 Nebsite: www.manzilaw.net :onfidentiality Notice: The mformation wdlor documents hereby transmitted are privileged and -ontain confidential matters intended only for the party named above.Any other reading, dissemination, hAnbution or reproduction is prohibited If you receive this email in error,please notify the sender mmediately by telephone and reply email and fully delete the email received without making a copy of he email or any attachments 3/9/2007 2 questions From: Thomas I Urbelis Wu@uf-law.com] Sent:Thursday,March 01,2007 3:13 PM To: Glennon,Michel Cc: Atty. Albert P.Manzi, III Subject:RE: 2 questions (1)application (2) please send me the documents.There are several Cingular matters. From: Glennon, Michel[mailto:mg P @townofnorthandover.com] Sent:Thursday, March 01, 2007 3-01 To:Thomas I Urbelis Cc: Atty. Albert P. Manzi, III Subject: 2 questions 1. should the«legal 2007 Mar 27.doc>>40B legal notice use the word"appeal"or"application"? 2. Does the Board need to do anything about the remanded Cingula?,or,is the signed agreement and the Planning Board decision sufficient? Mich. file://C:\Documents and Settings\mglennon\My Documents\40B -Orchard Village\RE 2 qu... 3/1/2007 Page 1 of 2 Brown, Gerald From: Atty. Albert P. Manzi III [attymanzi@manzilaw.net] Sent: Friday, March 02, 2007 12:55 PM To: Thomas J. Urbelis Cc: Glennon, Michel; Brown, Gerald Subject: RE: 2 questions It does not say that......Lets follow up next week....I have to leave the office. APM III "Thomas J. Urbelis" <tju@uf-law.com>wrote: Al......The Judgment itself granted the variance with conditions. Tom. From: Atty. Albert P. Manzi III [mailto:attymanzi@manzilaw.net] Sent: Friday, March 02, 2007 12:51 PM To: Thomas J. Urbelis Cc: Michele Glennon; Gerry Brown Subject: RE: 2 questions Tom......To the best of my knowledge and belief: The Agreement for Judgment calls for issuing a Variance, which, to my knowledge has not occurred. However a new public hearing was advertised. The Board has taken no action other than to authorize Counsel to enter into Agreement for Judgment on the Boards behalf. APM III "Thomas J. Urbelis"<tju@uf-law.com>wrote: (2)The Board of Appeals does not need to do anything as long as the application for building permit complies with the four conditions as recited in the Judgment ,and also the plans as previously submitted to the Board of Appeals as referenced in the Agreement for Judgment which is in the Board's files ,and the conditions of the Site Plan Special permit approved by the Planning Board May 31,2006. From: Glennon, Michel [mailto:mglennon@townofnorthandover.com] Sent: Thursday, March 01, 2007 3:01 PM To: Thomas J. Urbelis Cc: Atty. Albert P. Manzi, III Subject: 2 questions 1. should the <<legal 2007 Mar 27.doc>>40B legal notice use the word "appeal " or "application"? 2. Does the Board need to do anything about the remanded Cingular?, or, is the signed 3/5/2007 Page 2 of 2 agreement and the Planning Board decision sufficient? Mich. Attorney Albert P. Manzi III 24 Main Street North Andover, Massachusetts 01845 Tel. 978-681-6618 Fax. 978-681-6628 website: www.manzilaw.net Confidentiality Notice: The information and/or documents hereby transmitted are privileged and contain confidential matters intended only for the party named above. Any other reading, dissemination, distribution or reproduction is prohibited. If you receive this email in error, lease notify the sender immediately by telephone and reply email and fully delete the email received without making a copy of the email or any attachments. 4ttorney Albert P. Manzi III 24 Main Street Vorth Andover, Massachusetts 01845 fel. 978-681-6618 Fax. 978-681-6628 Nebsite: www.manzilaw.net �onfrdentiality Notice: The information and/or documents hereby transmitted are privileged and -ontain confidential matters intended only for the party named above. Any other reading, dissemination, tistribution or reproduction is prohibited. If you receive this email in error,please notify the sender mmediately by telephone and reply email and fully delete the email received without making a copy of he email or any attachments. 3/5/2007 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tju@uf-law.com Telecopier 617-338-0122 Telephone 978-475-4552 FedEx November 19, 2007 Lincoln Daley Town Planner Town of North Andover 1600 Osgood Street North Andover, MA 01845 RE: WIRELESS SERVICE FACILITY AT 300 CHESTNUT STREET Dear Lincoln: On November 16 you asked us to review a draft Planning Board decision for renewal of a Special Permit for the facility at 300 Chestnut Street. In 2005 New Cingular Wireless PCS, LLC filed a lawsuit in Federal Court against the North Andover Zoning Board of Appeals relating to a variance from the setback requirements for the facility at 300 Chestnut Street. One of the other issues raised in the complaint was the annual frequency compliance evaluation as recited in Paragraph 100 through 116 of the attached complaint. The case was settled, but the carrier reserved its right to challenge any enforcement of the annual certification and the validity of Section 8.9(8) of the Zoning Bylaw requiring such ,1 annual reporting requirements. The provisions in Paragraphs 2(c), 3(b), 3(c) and 8 of the proposed draft decision require an annual certification of compliance and it is possible that these conditions would be appealed to Federal Court, with the assertion that the conditions violated the Telecommunications Act of 1996. I recommend that the Building Inspector or some other person with wireless communication technical skills evaluate whether the facility which is the subject of the Special Permit is exempt from such annual evaluations due to the Federal Regulations as referenced in the attachment.. Very truly yours, _T"Yae4-' TJU/kmp Thomas J. Uelis Enclosure cc: Planning Board (w/enc) Curt Bellavance (w/enc) Gerald Brown (w/enc) Mark Rees (w/enc) 1\v�ork4 l\lspey.ltr-wireless.doc I� ��r- yNPPAI_S C 100. Section 8.9(8)(a) of the North Andover Bylaw purports to regulate radio frequency emissions from federally licensed wireless telecommunications facilities by requiring "RFR [radiofrequency radiation] measurements . at annual intervals from the date of issuance of the Special Permit." 10.1 This regulation purports to apply not only to the Site,but to all existing sites of all wireless carriers. 102. Through this section, the Town of North Andover purports to regulate a field that Congress has reserved exclusively to the FCC. 103. In the Communications Act of 1934, Congress granted the field of regulating radio frequency transmissions exclusively to the FCC. See, e.g. 47 U.S.C. §§ 152(a), 301. 104. The Communications Amendments Act of 1982 confirmed and strengthened the FCC's federal authority over radio frequency emissions. See 47 U.S.C. § 302(a). H.R. Conf. Rep. No. 97-765, at 23, 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2261, 2267, 2277. 105. Pursuant to its statutory authority, the FCC has promulgated regulations setting forth both exposure limits for RF emissions and specific mechanisms for enforcing those exposure limits. In doing so, it has expressly refrained from imposing unnecessary and burdensome requirements upon carriers, consistent with Congress' intention to make competitive, cost-effective communications services available to all Americans. 106. The FCC has promulgated RF exposure limits in 47 CFR 1.1310. According to Table 1 in that regulation, the exposure limit in the 1900 MhZ band, one of the bands in which Cingular operates, is 1 milliwatt (1,000 microwatts) per square centimeter - many times greater than the actual maximum exposure at ground level from Cingular's facilities in North Andover. 18 l5NOV 2 i LOUI `. BOARD OF APPEALS The MPE limits are calculated assuming the maximum power density with all channels operating at their maximum power. 107. The FCC also expressly regulates when a routine compliance evaluation regarding these limits is and is not required: "A determination of compliance with the exposure limits in Sec. 1.13 10 or Sec. 2.1093 of this chapter(routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in table 1, or those specified in paragraph (b)(2) of this section. All other facilities, operations and transmitters are categorically excluded from making such studies or preparing an EA, except as indicated in paragraphs (c) and (d) of this section [relating to environmental assessments ("EA"), not to routine evaluation]." 47 C.F.R. 1.1307(b)(1) (emphasis added). 108. The applicable table in 47 C.F.R. 1.1307(b) shows that PCS facilities are categorically excluded from routine evaluation as long as they are 10 meters (approximately 32.8 feet) above ground: Table 1 -Transmitters,Facilities and Operations Subject to Routine Environmental Evaluation Service(title 47 CFR rule part) Evaluation required if: Personal Communications Services . . . (2)Broadband PCS(subpart E): non-building- (part 24) mounted antennas:height above ground level to lowest point of antenna, lom and total power of all channels =2000 W ERP(3280 W EIRP) . . . 109. All of Cingular's non-building mounted antennas in North Andover(including the Site) are much more than 10 meters AGL. 110. Carriers on a multi-carrier telecommunications tower(like the Site) only have responsibility for correcting any excessive RF emissions from the entire tower if their power 19 density levels contribute 5% or more of the exposure limit applicable to the tower. 47 C.F.R. 1.1307(b)(3). 111. Based upon worst-case calculations at the Site, Cingular would contribute less than or equal to 0.6% of the total exposure limit. 112. The purpose of the FCC RF evaluation regulations is "to provide a proper balance between the need to protect the public and workers from exposure to excessive RF electromagnetic fields and the need to allow communications services to readily address growing marketplace demands." 62 Fed. Reg. 47960, 47961 (9/12/97). 113, "Use of the new guidelines will ensure that the public and workers receive adequate protection from exposure to potentially harmful RF electromagnetic fields." Id. at 47962. 114. Local zoning provisions having the "intent and effect ... to regulate the operations - not the placement, construction and modification- of licensed facilities" are preempted because they focus on"radio frequency regulation rather than local land use concerns" (In Re Cingular Wireless, L.L.C, 2003 WL 21517835, FCC Docket No. 02-100 (July 7, 2003) at page 10-11). 115. Nor are preempted local regulations saved by the claim that the local government is attempting to "assure itself that a carrier is complying with FCC standards" where the regulation is "effectively regulating federally licensed operation" as opposed to "traditional zoning regulation of the physical facility." Id. 116. The annual RFR measurement requirement of North Andover Bylaw Section 8.9(8) is therefore preempted in its entirety. WHEREFORE, Cingular requests that this Court enter judgment: 1. Declaring that the North Andover Bylaw and the Board's Decision violate the 20 From Contents Item Date "Remand Atty.Douglas H.Wilkins, Notice of Appeal 1)Cingular Wireless PCS LLC Town Clerk Folder" Anderson&Kreiger,43 Thorndike v.Town of North Andover,Massachusetts,Board 9-12-05 St.,Cambridge,MA of Appeals of the Town of North Andover,et al. (U.S.District Court,D.Mass.) [05-11841 NG], and 2)Cingular Wireless PCS LLC v.Town of North Andover,Massachusetts,Board of Appeals of the Town of North Andover,et al. (Essex Superior Court) [05-1580B] Atty.Thomas J.Urbelis Cover letter re:New Cingular Wireless vs.Town 12-14-05 of North Andover,et al.&Atty.Wilkins letter 12- 14-05&proposed Agreement for Judgment. Atty.Thomas J.Urbelis Cover letter re:New Cingular Wireless PCS LLC 12-15-05 vs.Town of North Andover,et al.Civil Action No.05-1580B Defendants'Answer to Amended Complaint Atty.Thomas J.Urbelis Cover letter re:New Cingular Wireless PCS LLC 1-24-06 vs.Town of North Andover,et al. Civil Action No. 05-1580B 1)List of Combined Documents Pursuant to Rule 9A;2)Defendants' Motion for Order of Remand;3)Order of Remand;4) Opposition to Defendants'Motion for Order of Remand(Hearing Requested);5)Plaintiff's Cross-Motion for Leave to Dismiss this Case Voluntarily;and 6)Certificate of Service. Atty.Thomas J.Urbelis Letter re:New Cingular Wireless PSC,LLC vs. 1-30-06 North Andover Zoning Board of Appeals,et al. Federal District Court No. 05-11841,6 p. & enclosing cover letter to Planning Board 2-6-03 for the Wireless Communications Facilities letter to the ZBA,7 p.,8-31-00;the Zoning Bylaw Amendment—Wireless Communication Facilities letter to Heidi Griffin,Planning Director,3 p.,5- 10-01;the Telecommunications Towers letter to Tem Ackerman,Acting Town Manager,2 p.,8- 10-00,and the Wireless Facilities Zoning Bylaw to Robert P.Ford,Esq. [ZBA member] 3 p.,7-27- 00. Atty.Thomas J.Urbelis Re:New Cingular Wireless PCS LLC v.North 2-3-06 Andover Zoning Board of Appeals,et al.Essex Superior Court No.ESCV2005-01580-B' attached Judgment 2-01-2006 Atty.Thomas J.Urbelis Cover letter Joint Scheduling Conference 5-1-06 Statement 05CV11841 NG&attached Atty. Urbelis to Atty.Wilkins letter 1-25-06&draft Agreement for Judgment,&Atty.Wilkins letter 4-5-06 NA ZBA Legal notice for Agreement for Judgment Town Clerk 5-18-06 Atty.Thomas J.Urbelis Letter requesting confirmation ZBA files have 5-30-06 drawings CO1B&CO1C U. S.District Court—District of Agreement for Judgment Civil Action No.03- District Massachusetts 12105-NMG Court 5-31-06 Atty.Thomas J.Urbelis Fax cover of 29 pgs. 1)Atty.Urbelis' letter 5-1- 6-6-06 06;2)Atty.Wilkins' letter 4-5-06;3)Atty. Urbelis' letter 4-4-06 re:New Cingular Wireless PCS LLC v.Town of North Andover Civil Action No.05C 11841 NG;4)Atty.Urbelis' cover letter 1-25-06 draft Agreement for Judgment; 5 Atty. Urbelis' letter 1-30-06;6)NA ZBA 2005-001;7) Atty.Urbelis' letter 8-31-00;8)Atty.Urbelis' letter 5-10-01; NA ZBA Letter authorizing Atty.Urbelis to sign agreement Town Clerk 6-27-06 Atty.Thomas J.Urbelis Cover letter for: e-mail 7-3-06 from Atty.Wilkins 7-6-06 &e-mail 7-6-06 from Atty.Wilkins&suggested revised Agreement for Judgment Atty.Douglas H.Wilkins Letter re:New Cingular Wireless PCS LLC v. 7-18-06 Town of North Andover,et al. Civil Action Docket No.05-1580B and attached Agreement for Judgment Civil Action No.03-12105-NMG 5-31- 06 Mary Ippolito,NA Planning Memo to Minuteman Press to copy all Planning& 7-31-06 Department Assistant Zoning documents re: Cingular Atty.Thomas J.Urbelis Cover e-mail 8-4-06 from Atty.Wilkins& 8-7-06 4suggested revised Agreement for Judgment U. S.District Court—District of New Cingular Wireless PCS LLC v.Town of 9-11-06 Massachusetts North Andover Civil Action No.05C 11841 NG— Agreement for Judgment Atty.Thomas J.Urbelis Cover letter 9-12-06 U. S.District Court—District of Re:New Cingular Wireless PCS LLC v.Town of 9-25-06 Massachusetts North Andover 05CV11841-NG-Judgment Atty.Thomas J.Urbelis Cover letter 9-29-06 U. S.District Court—District of Re:New Cingular Wireless PCS LLC v.Town of Town Clerk Massachusetts North Andover et al. 05CV11841-NG—Judgment 10-6-06 filed 9-25-06 Atty.Thomas J.Urbelis' letter to Lincoln Daley, Town Planner re:Wireless Service Facility at 300 Chestnut Street, 11-19-07 URBELIS&FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS J.URBELIS Telephone 617-338-2200 E-MAIL:tju@uf-law.com Andover Office Telecopier 617-338-0122 Telephone 978-475-4552 April 18, 2008 Board of Selectmen North Andover Town Offices 120 Main Street North Andover, MA 01845 RE: 2008 ANNUAL TOWN MEETING—WARRANT ARTICLE 26 (REGARDING 300 CHESTNUT STREET) Dear Members: Per your request, this is to advise that in my opinion, an affirmative vote on Article 26 would have no binding effect upon the Zoning Board of Appeals which is a Board that has its own statutory responsibilities. Furthermore, with regard to the 600 feet setback issue, the Building Commissioner issued a permit for the facility in the Church Spire of the First Calvary Baptist Church based upon the following section of the Zoning Bylaw which comes immediately after the reference to the 600 foot setback: "In the event that a preexisting structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preexisting non-conforming structures, wireless service facilities and ' their equipment shelters shall not increase any non-conformity:" Please call if you have any questions. Verytrulyyours, TJU/kmp Thomas J. LUbelis cc: Planning Board Zoning Board of Appeals Mark Rees Curt Bellavance Gerald Brown Charles Salisbury d D APR 2 2 2008 BOARDOF AP;PEN adD5 I-jr,r -I-V .4- �epc4�Ps� h�;�