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TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
Notice is hereby given that the Board of Appeals will hold a
public hearing at the Stevens Memorial Library located at
345 Main Street, North Andover MA. on Tuesday the 8th
day of July 1997 at 7 : 30 o' clock P.M._ to all parties
interested in the appeal of New England Telephone &
Telegraph Co. of 28 Diana Lane, Dracut Ma requesting a
Variance from the requirements of Section 7 paragraph 7 . 3
in a R-4 district of the Zoning Bylaw.
Said premise is located at the First Calvary Baptist
Church at 586 Massachusetts Ave which is the R-4 'Zoning
District for the purpose of obtaining relief as to side set
back for the construction of a C.E.V and placement of
additional telecommunication equipment on the lot line.
Plans are available for review at the Office of Community
Development & Services, Town- Hall Annex, 146 Main Street.
TOWN OF
NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
Notice is hereby given ", By the Order of the Board of Appeals
that the Board of
Appeals will hold a pub- William J. Sullivan, Chairman
lic hearing at the
Stevens Memorial
Library located at 345
Main Street, North
Andover,MA on Tuesday Lawrence Eagle Tribune 6. 24.97 & 7. 1.97
the 8th day of July 1997 i
at 7:30 o'clock P.M.to all
Parties interested in the
appeal of New England
Telephone and Telegraph
Co. of 28 Diana Lane,
Dracut, MA requesting a
Variance from the require-
ments of Section 7 para-
graph 7.3 in a R-4 district
of the Zoning Bylaw.
Said premise is located
at the First Calvary Baptist
Church at 586 Massachu-
setts Ave which is the R-4
Zoning District for the pur-
pose of obtaining relief as
to side set back for the
construction of a C.E.V.
and placement of addition-
al telecommunication
equipment on the lot line.
Plans are available for
review at the Office of
Community Development
& Services, Town Hall
Annex, 146 Main Street.
By the Order of the
Board of Appeals
William J.Sullivan,
Chairman
E-T — June 24; July 1,
1997
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JUL zi ID 32 AM '91
,SSACMUSEt�
TOWN OF NORTH ANDOVER
MASSACHUSETTS
BOARD OF APPEALS
NOTICE OF DECISION
Property: 586 Massachusetts Ave
First Calvary Baptist Church
New England Tel/TelDate: July 21, 1997 *'
28 Diana Lane Petition #:017-97
Dracut, MA 01826 Date of
Hearing* 7/8/97
The Board of Appeals held a regular meeting on Tuesday
evening, July 8, 1997 upon the application _of New England
Tel & Tel requesting a variation of Section 7, Paragraph 7.3
and Table 2 in R-4 District of the Zoning By Law so as to
permit relief of the set back requirements.
The following members were present and voting. Walter Spule,
Raymond Vivenzio, Robert Ford, Scott Karpinski & Ellen
McIntyre.
The hearing was advertised in the Lawrence Eagle Tribune on
June 24, 1997 and July 1, 1997 all abutters were notified
by regular mail.
Upon a motion by Scott Karpinski and seconded by Raymond
Vivenzio to Grant the variance as requested from Section 7,
Paragraph 7. 3 in R-4 District for relief of front and side
setback requirements for the location of telecommunications
equipment within a 25' x 30' easement area for the
construction of a 16 'x 61x 9 ' C.E.V ('controlled
environmental vault) which would be place underground within
the aforementioned easement area. ,. A cross-connect cabinet
which will be 53" in height, 44" in length, and 20" deep and
placed above ground on a support pad. A power pedestal 59"
in. height, 21" in length, and 9" deep also to be placed
above-ground.. A pre-cast pedestal manhole 12 ' x 6' x 7 '
which will be placed underground with the condition ' that
landscaping be placed around the installed units. The Board
of Appeals voted unanimously to grant the variance. Voting
members were: Walter Soule, Raymond Vivenzio, Robert Ford,
Scott Karpinski & Ellen McEntyre.
The petitioner has satisfied the provisions of Section 10,
Paragraph 10.4 of the Zoning Bylaw and that the granting of
these variances will not adversely affect the neighborhood
or derogate from the j intent and purpose of the Zoning Bylaw. ';
jNote: The granting of the Variance and/or special Permit as
requested by the applicant does not necessarily ensure the
granting of a Building permit as the applicant must abide by
all applicable local, state and federal building codes and
regulations, prior to the issuance of a building permitae
required by the Building Commissioner.
BOARD OF APPEALS,
William Sullivan, Chairman
; qtr
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Jolty QW ;
Received by Town Clerk:
Jug 17 o '91
TOWN OF NORTH ANDOVER, MASSACHUSETTS -
BOARD OF APPEALS
APPLICAMION FOR RELIEF FROM THE ZONING ORDINANCE
New Eng and Telephone &
Applicant Telegraph Company*** Address 28 Diaria Lane,
Dracut, Tel. No. 5 -
***on behalf of the First Calvary.
1. Application is hereby made: Baptist Church, 586 Massachusetts
Ave. , North Andover, MA 01845
a) For a variance from the requirements of Section 7
Paragraph 7 . 3 and Table 2 of the Zoning Bylaws.
b) For a special Permit under Section Paragraph
of the Zoning Bylaws.
c) As a Party Aggrieved, for review of a decision made by
the Building Inspector or other authority:
2 . a) Premises affected are land and building (s)
numbered 586 Massachusetts avenue
b) Premises affected are property with frontage on the
North ( ) South ( ) East -x[°West ( ) side of Chickering
Roadx
Street, and known as No. 586 Massachusetts Avenue
MyMm .
c) Premises affected are in Zoning District and the
premises affected have an area of square feet
and frontage of feet.
�, Rev. 06 . 03 . 96
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3 . Ownership:
a) Name and address of owner (if joint ownership, give all
names) :
FIRST CALVARY BAPTIST CHURCH -
Date of Purchase 04/10/89 Previous Owner Thomas Daw, et al.
b) 1. If applicant is not owner, check his/her interest
in the premises :
Prospective Purchaser Lessee XXX Other
2 . Letter of authorization for Variance/Special Permit
required.
4 . Size ofro osed building: ".P P g: " front; feet deep;
Height stories; feet.
SEE ATTACHED
a) Approximate date of erection: ASAP
b) Occupancy or use of each floor: N/A
c) Type of construction:
5: Has there been a previous appeal,'-under zoning, on these
premises? No If so, when?
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6. Description of relief sought on this petition is that NYNEX
is recfuesting relief from set-back requirements or a cons ruction
7. Deed recorded in the Registry of Deeds in Book 2963 Page 3 of a
stn-Ga"t Geeti€ieate N9. PAeJ�—.-._Page �.E.V.
and placement of
The principal points upon which I base my application are as add ' 1 .
follows: (must be stated in detail) telecomm.
-equip-:.
SEE ATTACHED
y
I agree to pay the . filing fee, advertising in newspaper, and
incidental ses*
Signature of PetitionerU)c
Robert Grassia, Manager - Right of way
NYNEX f,...
28 Diana Lane Dracut, MA 01826
on behalf of First Calvary Baptist Church
586 Massachusetts Avenue
North Andover, MA 01845
RPv
Question(4):
NYNEX is desirous of locating the following telecommunications equipment within a 25'
x 30' easement located on a portion of the property owned by the First Calvary Baptist Church,
586 Massachusetts Avenue,North Andover, MA. Said equipment would consist of the
following:
1. A 16'x 6'x 9' C.E.V. (controlled environmental vault)which would
be placed underground within the aforementioned easement area..
2. A cross-connect cabinet which will be 53" in height, 44" in length,
and 20" deep and placed above ground on a support pad.
3. A power pedestal 59" in height, 21" in length, and 9" deep also to be
placed above-ground.
4. A pre-cast pedestal manhole 12'x 6'x T which will be placed
underground.
I�
Question(7):
As is stated in the response to Question(4)NYNEX is desirous of locating certain of its
telecommunications equipment within a 25'x 30'easement located on a portion of the property
owned by the First Calvary Baptist Church, 586 Massachusetts Avenue,North Andover, MA.
The proposed location for this easement(as shown on the plan submitted) is on the
property line on the westerly side of Chickering Road. Since the proposed location for the
placement of the equipment does not comply with minimum set-back requirements for an R-4
district NYNEX seeks relief from said set-back requirements in the form of a dimensional
variance.
NYNEX submits that the placement of this equipment at the proposed location is
necessary for purposes of allowing connection of the equipment with existing facilities and
providing easy access by NYNEX technicians.
As presently proposed, only the entry hatch to the C.E.V., the cross-connect cabinet, and
the power pedestal will be above-ground. The manhole and C.E.V. will be located below ground
and entire easement area will be landscaped and the equipment will be camouflaged by shrubs.
C�
DESCRIPTION OF VARIANCE REQUESTED
ZONING DISTRICT: R-4 .
Required Setback Existing Setback Relief
or Area or Area Requested
Lot
Dimension
Area
Street Frontage
Front Setback Front set-batik in R-4" Relief. requested
district for corner lots is is that NYNEX be
Twenty Feet (20 ' ) on side street. permitted to placE
e ecommunications
Side Setback(s) equipment on the
lot line.
' Rear Setback
Special Permit -Request:
F LIST OF PARTIES OF INTEREST PAGE OF j
SUBJECT PROPERTY
MAP PARCEL NAME ADDRESS
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Established 1847 in Lawrence
rist .Vol'
586 Massachusetts Avenue
North Andover, Massachusetts 01845-4357
(508) 685-1502
Dr. Kenneth E. Swenson Rev. Charles C. Crook
Senior Pastor Associate Pastor
June 12, 1997
William Sullivan, Chairman
North Andover Zoning Board of Appeals
Office of Community Development and Services
North Andover Town Hall
146 Main Street
North Andover, MA 01845
Re: Application of NYNEX on behalf of the
First Calvary Baptist Church for Dimensional Variance i
Dear Mr. Sullivan: f
On behalf of the Board of Trustees of the FirstCalvary Baptist Church.this letter shall
serve to confirm that Robert E Gra.ssta,ManagerNYNEX Right of Way Department is hereby
7 -
authorized to submit on behalf of the sald':First Calvary Baptist Church/certain petition for a
dimensional vanarice for the placement of telecommuncat�on,equipment,on;property_owned by
the First Ca1aryBaptist Church situate at 586 Massachusetts Averiue,_North Andover;MA.
d��',•� r e , a;.-.. ,+
rr r.If you or any member of the North Andover'ZomlfngiBoard'i of Appeals have any questions
with+ ;regards to"this matter please do nothesitate t tact me.---
7.
Sincerely,
r. Kenneth E. Swenson, Senior Pastor
First Calvary Baptist Church
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Fuablished 1847 in lsnurerwefist
i 586 Massachusetts Avenue
North Andover, Massachusetts 01845-4357
(508)685-1502
Dr. Kenneth E. Swenson Rev. Charles C. Crook
Senior Pea"
' Associate Paas
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A1N � 8 1997 r'��:
i June 12, 1997
William Su 'VL -�---
North And Gvg,>^ I�at= c- PPg
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Office of Community Development.and Services
North Andover Town Hall
j 146 Main Street
North Andover, MA 01845
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i Re: Application of NYNEX on behalf of the
First Calvary Baptist Church for Dimensional Variance
ii
Dear Mr. Sullivan:
On behalf of the Board of Trustees of the First Calvary Baptist Church this letter shall
serve to confirm that Robert E. Grassia,Manager-NYNEX Right of Way Department is hereby
authorized to submit on behalf of the said First Calvary Baptist Church a certain petition}for a
i I dimensional variance for the placement of telecommunication equipment on propertjf.:Qvyned by
the First Calvary Baptist Churph situate at 586 Massachusetts Avenue,NorthAndRverj`11QA.
If you:or any member of the North Andover Zoning Board of Appeals have any gltestios with regards tool s matter please do not hesitate to contact me.
Y
i Sincerely,
,
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r. Kenneth E. Swenson, Senior Pastor
First Calvary Baptist Church
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MEMORANDUM
To: North Andover Zoning Board of Appeals
From: Thomas J. Urbelis, Town Counsel 1:^
Date: January 16, 2009
cc: Board of Selectmen, Mark Rees, Gerald Brown
As a follow-up to our discussion at your January 13 open meeting, the purpose of this
memorandum is to provide you with some suggested guidelines and recommendations in your
i
decisions regarding wireless facilities.
I. TELECOMMUNICATIONS ACT OF 1996
Under the Telecommunications Act 'local govenuilents may not:
(a) "unreasonably discriminate among providers of functionally equivalent
services," § 332(c)(7)(B)(i)(I). [This means that you can't treat one carrier
differently from another.]
(b) Take actions that "prohibit or have the effect of prohibiting the provision
of personal wireless services," § 332(c)(7)(B)(i)(II). [This is a powerful
limitation on the authority of a local zoning board.]
(c) Limit the placement of wireless facilities "on the basis of the
environmental effects of radio frequency emissions," § 332(c)(7)(B)(iv).
With regard to health concerns, the Supreme Judicial Court of
Massachusetts has stated:
In nw:\wpSl\work\n-andove\corresp\memo-zba-telecommunications(2).doc
"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 Communications Commission." Roberts v.
Southwestern Bell, 429 Mass. 478, 480-81 (1999).
Reasonable people may claim that those FCC regulations are not stringent enough to
protect the public health, but according to the foregoing language from the Supreme Judicial
Court, that is a claim which is within the purview of the FCC to decide and not a local Board.
Furthermore, the TCA requires that any decision to deny a request to place, construct, or
modify wireless facilities be in writing and supported by substantial evidence contained in a
written record. 47 U.S.C. § 332 (c) (7) (B) (iii).
II. CHALLENGES TO A DECISION OF THIS BOARD
Under the current bylaw a special permit from the Planning Board is required. Very
often a variance from this Board might also be required for something like setbacks. Some
towns have the Board of Appeals acting upon a special permit and variance. Most cases decided
under the Telecommunications Act of 1996 are not based upon a challenge to the bylaw as
written (a "facial challenge"), but are based upon a review of local boards' decisions based upon
the factors of a particular application and whether the decision, in applying the bylaw results in
an effective prohibition of wireless services (an"as applied challenge").
In discussing the grant or denial of a variance in the context of the Telecommunications
Act, the Federal Court in Nextel Communications v. Zoning Board of Appeals of the Town of
Wayland, 231 F. Supp. 2d 396 (D. Mass. 2002) stated:
"After finding that the ANR endorsement did not require the Board to grant the
variance, the Board then went on to hold that `there are not unique circumstances
relating to soil condition, shape or topography of the location that would cause
substantial hardship to the applicant if we do not grant the variance.' According
to the Board, in order to grant a variance under M.G.L. c. 40A, §10, the board
2
must find that owing to circumstances related to those things listed above, a literal
enforcement of the zoning provisions would involve substantial hardship,
financial or otherwise, to the petitioner. Because the Board did not find any such
unique circumstances, it denied the variance application.
Although the Board's statement may be a correct statement of the general law in
Massachusetts regarding variances, it is not controlling in the special case of
wireless communications facilities. The Board's variance decision, because it is a
local zoning decision regulating the placement and construction of a wireless
communications facility, is subject to the federal Telecommunications Act.
Under the Telecommunications Act. the Board cannot denv the variance if in so
doing it would have the effect of prohibiting wireless services 47 U.S.C.
§332(c)(7)(B)(i)(II). 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."
(emphasis supplied)
III. IN ORDER TO MINIMIZE CHALLENGES TO THE BOARD'S
DECISION, WHAT SHOULD THE BOARD BE LOOKING FOR?
A. From the Carrier:
1. Engineering evidence of a substantial gap in coverage
2. Analysis of compliance with the filing requirements of the bylaw
3. Structural analysis of a proposed tower
4. Evidence of legal right to the site
5. Evidence that alternative site for the proposed tower is not available to close the
substantial gap in coverage. "Alternative"means it is (1) available and (2)
technically feasible
6. Evidence that co-locating on another tower is not an alternative
7. Evidence of compliance with FCC standards
8. Evidence of aesthetic effects —"balloon test"
9. Evidence from other Boards— such as a Historic District Commission
3
10. Funds to pay for the Board to obtain a peer review of the carrier's engineer's
report
B. From the Opponents:
1. Substantial evidence in the form of documents in the record to support their
opposition
2. Engineering reports to refute carrier's engineer on coverage gap, FCC
compliance, safety of tower
3. Evidence of alternate sites which are available, i.e., carrier can lease them (and
owner is willing to sell or lease) and they close the substantial gap in coverage
4. Legal arguments by their attorney
5. If claim is that property values will diminish, their expert appraiser analysis of
such property value loss to theirrroopert
6. Documentary and professional reports to refute the carrier's claims regarding
aesthetics
7. Written communications from opponents articulating specific reasons for Board
decisions
C: The Board's Decision_:
1. Read the bylaw. That is a section of the zoning bylaw which you do not interpret
or rule upon on a normal basis. More than likely the carrier is requesting some
form of relief from the bylaw's provisions. Also, there are specific filing
requirements in the bylaw for wireless facilities. Have they been met? Are there
provisions in the bylaw that are unique to a particular application? For example,
there is a provision that:
4
"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 preexistent non-conforming
structures, wireless service facilities and their equipment shelters
shall not increase any non-conformity."
?. Obtain a peer review of the applicant's engineer's report regarding safety of
tower, coverage, alternative sites, FCC compliance,etc. Give careful
consideration to such a peer review and to other engineering reports, if any,
provided by opponents.
3. The basic guideline for your decision is that it shall not prohibit or have the effect
of prohibiting the provision of personal wireless services if there is a significant
gap in coverage and there is no alternative location
4. The decision must relate to substantial evidence in the record—not just anecdotal
comments such as "we object"
5. Subjective evidence like a Board member's test drive around town placing calls
on a cell phone to determine if there is a coverage gap is not an adequate rebuttal
of an applicant's objective engineering evidence of a significant gap
6. If the Town's criteria for granting a permit to build such wireless service facilities
or administration of those criteria effectively preclude such facilities no matter
what the carrier does, the criteria may amount to an effective ban on provision of
personal wireless services, in violation of the Telecommunications Act, even
though substantial evidence exists for the denial.
7. Most controversial decisions are those where the applicant does not comply with
provisions such as setbacks—carrier will say it has a significant gap and therefore
the TCA controls; opponents will say Town Meeting voted on the bylaw so the
5
Zoning Board should enforce the setback provision. The Board is then caught
between a rock and the elephant in the room known as TCA
8. On rare occasions, a court will uphold a denial based upon aesthetics if the bylaw
has some language supporting such a basis for denial, but there must be specific.
and unique factual circumstances in the record. For example, in the Southwestern
Bell v. Town of Leicester case, the United States Court of Appeals for the First
Circuit found substantial evidence in the record to support the Board's denial
where the record showed that a 150 foot tower in Leicester would have more than
a minimal visual impact where the 150 foot tower was to be painted in contrasting
sections of red and white and topped by at least one beacon to light the tower at
night due to FAA requirements, and was to be placed on top of a 50 foot hill in
the middle of a cleared field; and the location had no trees, was in the geographic
center of town, would be visible all seasons of the year; would be seen every day
by 25% of the population of the Town, and was in close proximity to three
schools and two residential subdivisions.
9. The applicant should document all efforts to evaluate, and obtain rights to,
alternative sites.
10. The Board can not unreasonably discriminate among providers of functionally
equivalent services
11. The Board can not have a decision based upon based upon environmental effects
of radio frequency emissions, other than as required by the FCC. This is always
an issue when opponents say the facility will cause health problems
12. General abutter comments that property values will decline are not sufficient
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I 3. The Board must have a written decision explaining your reasons as supported by
substantial evidence in the record. The decision should reflect your consideration
of the requirements of the Telecommunications Act
14. The Board must act within a reasonable time period, taking into account the
nature and scope of the request
15. At all times; keep in mind that the Telecommunications Act of 1996 makes these
decisions different from any other decisions you will make.
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