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Miscellaneous - 70 ELM STREET 4/30/2018
70 ELM STREET i 210/042.0-0002-0000.0 ti�L� Of pORTH O O �__' m t �:"CPWED !� �,SSAC`HU`'ES 2009 SEP 17 AN 11 55 Town of North Andover ZONING BOARD OF APPEALS Albert P.Manzi III,Esq. Chairman Mrs S SAicfbc` a, j?ers Ellen P.McIntyre, L ace-Chairman Thomas D.Ippolito Richard J.Byers,Esq. Clerk Daniel S.Braese,Esq. .Joseph D.LaGrasse Michael P.Liporto i Richard M.Vaillancourt Zoning Enforcement Ojficer- Gerald A.Brown FINDINGS AND DECISION RE: Appeal of Lizetta M.Fennessy 77 Elm Street,North Andover,MA Date: September 17,2009 PROCEDURAL HISTORY 1. On or about May 28,2009,Lizetta M.Fennessy(hereinafter,the Appellant),of 77 Elm Street,North Andover, appealed the decision of the Building Commissioner to issue a building permit(#628)granted to MetroPCS Massachusetts,LLC to erect a wireless communication facility on property owned by the Trinitarian Congregational Church, 70 Elm Street,North Andover,Massachusetts per M.G.L. ch.40 § 7, 8,and 15 as North Andover Zoning By-Law Section 8.9.3(c)(v)(1). 2. The Zoning Board of Appeals(ZBA)held a public hearing on the matter at a Special Meeting on June 18,2009, and continued the hearing until August 11,2009. The documents listed and identified herein within Appendix"A"are hereby incorporated by reference attached hereto and made part hereof,as identified by exhibit numbers one(1)through twenty(20)and exhibits A and B respectively as marked by the Chairman at the Public Hearing and constitute documents received as to the record. The ZBA Public Hearing contained oral testimony as set forth in the Board's written and recorded record. 3. The ZBA deliberated the matter at its meeting on June 18,2009,August 11,2009,and September 3, 2009. Public Hearing closed on August 11,2009. 4. On September 3,2009,a motion was made to uphold the appeal of the Appellant. The vote of the ZBA was two (2)in favor and three(3)opposed as noted herein within the Chairman Certification of Record Vote. 5. Pursuant to M.G.L.ch.40A, § 15,the appeal was denied. FINDINGS 6. In a decision of the Planning Board of North Andover filed with the Town Clerk on March 5,2009, MetroPCS,LLC and the Trinitarian Congregational Church obtained a special permit to erect a wireless communications facility in the steeple and basement of the Church located at 70 Elm Street,North Page 1&o&33 1 q a APPENDIX A Exhibit#1 Letter from former Telecommunications Subcommittee (dated 1/26/09) Exhibit#2 Materials list submitted by Lizetta Fennessy(12 items) Exhibit#3 Letter from Walter Soule to John Simons/Planning Board (dated 1/23/09) Exhibit#4 Email from B Fink to Liz Fennessy(dated 1/26/09) Exhibit#5 Letter from Attorney Joseph Fitzgibbons to Ms. Karen Carroll(dated 1/15/08) Exhibit#6 Letter from Attorney Edward J. Collins to Ms. Thea Fournier(dated 1/26/09) Exhibit#7 Letter from D. Robert Nicetta to Rev. Andrew M. Gilman(dated 10/24/00) Exhibit#8 Letter(Page 1)from Janet R. Stearns to Mr. Robert Nicetta(dated 7/27/01) Exhibit#9 Letter(Page 2) from Janet R. Stearns to Mr. Robert Nicetta(dated 7/27/01) Exhibit#10 Letter from Michael McGuire to Janet R. Stearns (dated 8/1/01) Exhibit#11 Letter from D. Robert Nicetta to Mr. Paul Gascoigne(dated 5/25/02) Exhibit#12 Letter from Gerald Brown to Gin Vilante (dated 4/12/06) Exhibit#13 Letter from Gerald A. Brown to North Andover Planning Board(dated 12/3/08) Exhibit#14 Affidavit of Lizetta M. Fennessy(dated 6/18/09) Exhibit#15a DVD of North Andover Annual Town Meeting night one Disc 1 (dated 5/12/09) Exhibit#15b DVD of North Andover Annual Town Meeting night one Disc 2 (dated 5/12/09) Exhibit#16 Letter from Lizetta M. Fennessy to Gerald Brown(dated 5/15/09) Exhibit#17 Letter from Gerald Brown to Lizetta M. Fennessy(dated 5/19/09) Exhibit#18 Peter Morin Letter dated June 10, 2009; including attachments Tab A thru F Exhibit#19 North Andover Town Charter Exhibit 920 North Andover Zoning By-law Submitted on August 11, 2009: Exhibit A Essex Superior Court Complaint, Civil Action No. 2009-559-C Exhibit B Letter from Attorney Peter Morin to Albert P. Manzi,III,Esquire(Zoning Board of Appeals) (dated 7/27/09) M.G.L. ch. 39, § 23D Participation Form(s) i I i Page 3 of 3 r 1 Town of North Andover ZONING BOARD OF APPEALS r:� E C'��l�E� Albert P.Man'riIII,Esq,Chniriman I`Otj,'••x ry ;,r7F� �_._ 01 1•irf T3llen R McIntyre,T/ice-Chairman t4ORTN Richard J.Byers,Issy,Clerk O1 t"t. ,b qq ��OJ �j fa� Joseph D.LaGrassc =G e�, '_'a o Ur 2 All 09: 3$ Richard M.Vaillancourt Associate Membersit -4 Thomas D.Ippolito *�o „^ ., '.rU' ear'' ijf� y,. k r r ' Daniel S.Braese,Esq. �, a j l`r �b 9 ps �5�K�5 MASSAC�i1JS"��. Michael P.Liporto ac►+u To vn Clerk Time Stamp Legal Notice North Andover, Board of Appeals Notice is hereby given that the North Andover Zoning Board of Appeals will hold a public hearing in the High School Lecture Hall, 430 Osgood Street,North Andover,MA on Thursday the 18th of June, 2009 at 7:30 PM to all parties interested in the application of Lizetta M.Fennessy, 77 Elm Street, for premises at: Trinitarian Congregational Church, 70 Elm Street (Map 42, Parcel 2), North Andover,MA requesting a Finding as a Party Aggrieved of the Inspector of Buildings under Section 8.9.3(c)(v)of the Zoning Bylaw as petitioner seeks to reverse and vacate Building Permit 4628 granted on 5/18/09 on the basis that no Variance was granted for the 600 foot setback. Said premise affected is property with frontage on the Northwest side of Elm Street within the R-4 zoning district. Plans are available for review at the office of the Board of Appeals office, 1600 Osgood Street, Building 20, Suite 2-36,North Andover,MA 01845 Monday through Friday during the hours of 8:30AM to 4:30PM. By order of the Board of Appeals Albert P. Manzi III, Esq., Chairman Published in the Eagle-Tribune on June 3 & 10,2009. rLegalnotice 2009-009. M42P2. 1600 Osgood St,Bldg 20-Suite 2-36,North Andover,MA 01845 c Phone-978-688-9541 Fax-978-688-9542 Web-www.townofnorthandovencom .R'.""S q;:" i's'�'�"T,"•^'`-ars... _ :,,r ,- .�.�...�wvrr.--..-. . r -�{ .7., ... .. ..,- ; �,"-_5' 1'..'q.'.. rti ^",psi+ �(; •-'fiC'zk^.Rr,Fi. y , M - : : I E ( E T THEEAGLE-TRIBUNE Wednesday, MARAli ` sL0 kRA(tEl� era x f13�ltrTYtCE5171C70R(AN1 w:tTCHEN' ��6 A � w CENALAIC DELTA:B�nd5pw 20D 0¢i7 p free: uitdih e- ex. odn SouiFt3rn DstriCt fgegrstry of em gage prem es:morepa,rcua ascii, >71N L s,sNorth. W! NESS, fibra Deedsrn800k26i-Wjr geb59 ofwhiohmonW--- f�elowbaingalfand;singular.the;rami,Sdq Mari ginga S ttegtart, iha uridarsi P.. nbed _ 't)1845, LGQ01 gneiiamF+veCentsSausrigsgjyts 1n`sardaorigageaw,i Ea4gtiire;First JtYa tics rq. firfida M� � p the present holdeY,ftar breach of tris conditwns,bf ��•wo(2)certain parcels of far►d.tiyfth a builds Y bf#his Court +>o. of zi 30VIASSiRHUSfTT$ : said nirtgagesdlorihe purpose oftoreclosrrig �therebn ut_satd Lawrence situated on .`East .s P P..."4.-B 20Q9 z sarFle;svii(ba sotd: t F}tbhc.Auction aE 1x.09,111M.":", +Ede of Irene-Stasar and Bert, :Lois numbered y stir.... ey Q;bhen Tffeth da qt9. 93.. 3y rcieFo)he b k Eta QFTF[ Y, ., Oita,2dA9 on;t, mortgaged d 94nrt a. . Dice a Blanchette recorded as Ftegiskerof Prgbata TR f3ufg preittrses knowv,:alu mu'mbered;as Unit 2, 8,,� t t3 �t 37.$pn orf ESSexfiagisl: of De'pti" uau ' IaYd Df�pe8d5: ET 6/tt)/09! 'r Street,Navarlaifl f�iassachusetts'all and stn uloksafa con;i ousanaakantogetherare bounded a<l !( r t !f6)Vt1,sc 32721'a r 9_ g{r a fr the rertdsas desanlYednsatd molt a fo wit. r ar�d dascribedas Cotlows; i1g " ` 0Joseph Tyles a condomiiitum ur,(T kryown es Condomiriutr �BRLY I�liehtndrad(i W):feat by lot e2 on Q� N TI E :BaPona trustee of Y. 1Jn¢ m the condsa,xfnrum known as:.,Pover;S�e &bald=pian >' N() J A;,f Realty:Trust Ave -C°tidommiUm e'stabl(shec!by Mastei Qeed,data rSTERLY'.Qne)tunfJfed tOD:.feet b to gPfiA Q1/, ( ). Y is f03 iD .ER September f7'#999,aridsracordad on October. 304.on:saitlpfan Marla Barone;'trustee of E 80Aig4ttr?FP74L3 ,.y 1999:lir Esssie SGtikh�f7lsTnct Reg!Sf of Deade :-,UT'HERi1Ci�tlehundred l QO+' :w Yy r4p ie9: Ehe'.e J A 3 Rba(t}r qr ' C1 )feet by lot 95 on S tstterabygtven kP;—W— BaragA 800(S 16006;Page fl t, theywrih=an unrfivltte�t Man-and; eia .. , ..;.that theNPrth Aridbvel'`islet c,,A twelve andflne-hatfp - .-. . At ." ; ,:Zoriing;$pard of 100-40M.,AA.A J Reaity xpee. nt.(�2 5%p):interest 7 ;ifieSTERIY Orta hundred(]o0j feet ti Irene r coinrt#on arca and. c(I,ties of said-condo J-pi. rent Y L 7 Hi ?will hold, °pubi,c�ar n$ gust aid o elf persons descn ad in'the as et.'0' r�1 r In the Nl h SchooP Le ., e1?t'tiad to"klaa banefd taf I eeci apperEaining fat , o title sae steed ieeorited rri Book 5604;'.Pa a '! yq >tUre Hat)g`4 ¢ rinearvroeyi�ernl3ers Crvi.f unit a#1d all ngli pnialeges and.,OP�urtaitGs 8 g af? at.t�tr•F$, 3b Qs�`ood Re of Act thereto specified'tn Bald Master Deed enc( a f3 is escn tion of the` S ,PJV6f :Street�iJorth A1jgoxet � �. Street Contlominiu ,p Th r' P ,. _,pier" , contained in said is P o gars Chase m ecfatation of Tftast dafed fie ff�pptdga$e shaf, iotrol'in the event of 9"tro.ln this MA on T'u'esday lhsasth Bank i ailbrla!Associa= tember;17 1999;and recorded an©ctobar; ; Ttgttei Rf3i ;vat of June:2p09at7.3tlf'M Ilch, as:purchaser;# i99g +n Essex$muttt�lstrict Reg,sttybf Dead-i TfieJ4kort a eeceserves to d to all pariies interested In s o. B k'tfi006 Pa 9 9 9_. the right to postpone ah:. Ih loans andot>1srassets.M 9.:'4 w- sltl -4 toa14ta date u The; remrsasaoba sold;sub eci+to and wrtfr:# Ina:antl'd pyo" �uncehlert{ai MA ora A apPltcatrdn of frrjaY4e Washrn ton[Niiival ank,: p J 1I eta s p 9 , .x- $ - pf�t�ted tot the sate and' fur- (4eath .�lackriatt.&Tieph A formerly knpwrt as Wash beneftt of all aasdirtepts:rsstrfctlons buildings fit lit:postpone at an;ad ourned sae to 0I20Q.23 t,ustaes of Apkar 7,oning jaws impravarnenis lira aid:takes lax.fUe u:emenf y `t"' - by,public ,ala ;Stash 13evoca a ingt9n tyititi7sl,BanTc FA: waier'b,(s`': u P Av.,a 4ic the time and dale appojntad for. F P 71 fON, ! ,;rl nlcip_,liens Aird assessments # hin d oilmed pa. data, f py4TE F t y§'U"t, iha' avlri sBank from of fenartts and; a tf in>' ass ` firMMs %1,9 P le ##fe Fstt af�Deposdlns...R' p:.., 9,, ession;mortgage`s" le premises;w,ll ba sotd sub {D Ari iLl. k r N. lest. d with the 8 '' ar el>3 ), encs:Cof t,on esti existing„encumbrances,and>all ofher,claims-rn;tRi laeflrofall its raStilctions:Bas m n 2: ray p1i .. , natof6%bfliensnp_-.0-1 t<n or:h arsgttj)itar> Andover, as -wdx tot the Sav;:; 9 areafteransing;ftp bite toutstandih'}axt,Efes munici”ooj eprove e at3oVa ce era usstin < ifrf"p in nor over th„r:P!?b; g 6 g P ttY the Mort ag 9 u P sronf arlan �nga;:8ansnd:pursuant; a e s any'ttiara beCxes assa5smentshbetterme ts,bens orctalyds_, te, a;Pet,tion' ; K �COht 3o tfsfauthorlty under the> premises Shall.aisb bQ sold;sublact to the ngftt of @ natur�nf`_liens�nd::existin nenc�un brain presented Section 2, Paragraph redemption of thanft6d States.of America,if:a •.q,.., ces of 2 3 t1 of the Zontn federal i)apbsit tnsur tttete e. to sxtcreated prfiortO.�thae mortgage gr ptitiedtn` ijtaf;a�tocu g price Act 12 U:S C sec,:; Prlsnce of iiia mort9a a i# " ,nsotar as`the Y3jn Jo,ba ,HYla1N iohllef irgrn the TERMS OF S!ILf Fifteen ThouBtipd Qat arms earn era St(fl:n furca and, sad !@gtt7rarti$)3tsoffheFarttcl$im,ng to ( appficabte to,th'e.. " a ttia faoldar of a Mgrs ( 45;OQp;00)yy,ll be required:to ba paid by cash:or> i4sa;a l)es prbvetf aIle Suii9 defihiti.. fol . 0001ed.:check at=thetime Arid lace;.of sate.es"a- a remises . e rid the.> gaga°; covafirrg teal_ p P s a condominium unit, Grpssr loor Area a de I -i IhebalancefiStobe..paid + ssY+iife7'io.t�'s then_the Y . l D ft of' tt�dingrffAm asst:n ... ra arty to luTethLnn'- bY;rash bK ::. a'dslbJactta:'tJrassaCf USOM-. number S R Chairs tied cltack vnthirftl rky(30).days attsr.the salsas iha dt#@tat i.dWs„chapter t;63A as amended-the ` A AaPagraph"-2;!37`:Kand ph- Lew O,(Ccs bf F RoWkAll,son;A cane;at Law, :58 a tiab(e'Maste Deeds'd ' .. a Lane': wen b Jose h d Ss.. n. airy and:afl amounts as xecugrYtrix, Section,4"Paragfaph g Y Deft,Ztreat Sa►etn':)ulassachusefts:Tlmeisaf �� due,folio In such. F> 4,122 2yot`the za I A Barone#otlVashingiop a=�' sn g.. saia,to,the applicable iha :wU1 r 9 w a rlrn9 essence.The successfukbiddersh�I#ia,re cared tq ufUal Bank A dated.: l Gq sdstplw,um Uyst :. x, ut Sur X bylaw(o y✓lt n the;_str, C)stdtiar;t7>.2006-; ad;:signsQemorandurnof Sale;atthe ,i¢tionSafe ,� ucc `::'u. •. !e tam l dh v ... ,s asst l bidder;at the toreclosirra sale t '9: Y welting;in re'poFtI0d with Ilia Essex The Mortgage ,teserves the nght.to' fpoits 9 1n purch n the: ro.e 'acco'rdr .fo't THET t},dar tq cgnverf :the the sale;:3o a lateftiate iibllc roclama on of tit" of th''n g P,rtY.",•, n9,- f Cqunty{Northern p,strictj._ Y.p P a r s is ,4bce o-f sale or na.terms of,the diem UR A70 a exlst,ngoarNage house Re istry af..Llaeds at:`Irma ei3d.date appi?intad'foj the sale-__dib fur#h dom 0f Sa1e_$xecuted at s;pme of the foYec! - i�zry'4 PariltlY'Su,s,and'for $ postpone at atF ed)ourned,:sale;date b u61r �rYhe Mori e " 0 t y an ,ARREWf3 asSPac(AUPermit t[om 8cok 10450;.Page 20:.prociarnation t Y� ..:. >a$ a 7esarYes the tight iv selt;the AID:: eCtlorl 4 Para re. has:filed Hnth:safcourta .. p time and date apPonted for tis, j56rty by fOreglosura deed to iha se0ond hi"hest 9 Ph - *� adlozarraedsalate: d rK. f?NT 4�+222 fora Farnlf p411,@i rauthonty-to. Not othersucCassfye<bcdders nttieoero# rr Y ora bee d snort a e : In the,avails tffat the(successfutbiddar ata i?d) rovtde!the#such:;other'bid r. ` t yTEr SNJ e,s)fid:Saot)on;,9 t r g g,:forr�closure sale stl9lfdefaulriti; urful sV, .rr o p posits " pdra r. r8 t+##lie 119 riat)ner jaliPwio P„......,.$q)a ..::,-_ ricfagea alto[neys yl,chienze$Sawin t�. N,,...Tt#E g b , .fn desarlbed pl'opaitY accords. to the terms dhi& e amounk of iha r8gliired de`'asd as Sol Zon,n& �p!Yah Gldet Q an rltr anc�.P4ssesSibn �lpnce.of:Sala,anty..n'tFie term's; f A.• fo N, C9nvert ;relax sffi+ � of;powar of .duin'.b'E Sale;e o-ttie_Memoran )vrthin tgit X10}business dayysrafter,wr,iten Ot)9 ! p m� xacut9, at the turie of the#oreclosltra, 4 gel{default of the previous hi b st bidder a on:ou%mup, norfcofl?!PgStructure the orT ._: eereseiiresthetf htfoseflfhe.. f $..::e; rid y prppert,y :_f be C 70Yad to sudh other biddaf within fl' Qh. r �)fi you are entitled to : M gag 9:.. n d iiiawt o cap @ xfSting non iha benefits ofjft Ser fiy focecfosure:desd:to;Iha'second•,IifgbeSk b,i!¢0 X30)days;of the clef It whirl rtietf' 10 the;. etf OnfQrmt,g tgcto a Eaml tt V b ods P i, ly$ui e 4 ,: v,cemembers.Civil Rel,ef prov,deit that the second highest bidder shah depos t n �?W 94. n k extended by the Moi#ga eA 1n''iis gg°3a f c Act as amended:and ou ;wa h Nlortg;�gees attorney F„Robed Atyson Attor &ofadi&cre#,pn s g round�;lipon Cl Prarnises aBect Y nay of Law the amount.of}rte.re obeptlonis ad; is prpperty with pblecttasuchforeclosure seifo'rth.herein:wail r Quiradrleposlras,: t MS OFSAAI;Elen Ihousandand f+lo/10p'Dol in 30: tionta pllli iha t You of,your.:attorney,: !, cl three business days after: lets t$i S 00000).;;s to be paid fn.,certified chock ,:sda 5 case �s s- shbLld til a carts en g,+tittan notice of d'a..toum tha.prev,ous kffghest bid: adctllt?�battk casJtlars check:to ba aid fur �o Oak, p., by the,Pur f v aY r Stiei3 01 t, P y. !d�r and brie shaft a�rnreyed.„ �sfiid second il9h. �h �'et the Urns App piece of sale The Aalarica:Af tigt as the ,aSsl*bidder with t+atety(20) a s of Bald written: Urchasa nce[s to be bald b the Pure t::b pyla' 14th+#tf'Ing.d,s� rt r wf rnOtloe� : y= P y a t r <PfansaXa&vaf{aQ �yr „,..- cadiQti gheRlc ansUorbank:cashiers"check,withln zieview at the,oTficet ,@ r" 1 ,.saideSCflptrotor the pJ ��nnls+)sat�trntalf► thirty 30)days the{eaftar,Y+tilch time pared : fOrevent as 1age shall control fn the eveA`q l axtendetl b m Y rtgagee tri,rt&sole h obese 8gare P APA,ealsbfftca, 5 ,m graP7aafgrrortnthfspupfica�ignY the iylpp h� 1&4 Osgood�Stre`et to that's ch>`oecl#ist+re: dtspfttTon at t9 olffCes of Narr Cas}lama , `t”'"� is,nvalir��rti?ersatdact y n ow—? }�qyR BhtldIngx24, uite 2.3,`6,; AT T}fE SALE RMS iFANY,T4 BE ANNOUNCEQ'.ESgufre,:Nfichienzie r£$awih LLC 745 8gylston �taglan, blglndovefi NIA1ftKess 1�¢FiYttl F DATE: /13/09 Street $bsion MA 02118 SCH>=fiER,ChiafusgCa a sed atthe.sale Otfier:ferms to b announ AL 4gfx;tttls ` oY hrojigfi' SAL1wM FIVE CENTS SAVINGS 8ANf<; EF/I.0 Mortgage: or, LOW I >Y r p iday drin9:the hours des a#d Ca 2009 the 26th r'. pf i3 30�i1;o"4 30PM y Y 3'+esent holder of said tylortgage; present holder of said rrtotkgage famae� n rYrdar pf like. AtiesDe � 6 F,t308ERT By attorney by ffs.attorney Harry Castleman Esquire sna rson AGLISO ESQUIRE MICIiIENZIE'&:SAWN,1 C A ofiAppsals Rebordar. 159 DetbAy Street 1 Y 'Brien M� 11+d+�pard ' r'of Arob to Atbefx P ManzF 1t = 2Q09Q1 1 A4 CaRY 745 8oy3stontraet E t;��R,eeit an :. Saleht.M 01,970 Boston';MA 0211:6 i?9'f Cn �1— 5/27,6/03,6/i0%09 (97$)740 9433 ET 6/10,6/i7 6Y24/09 }-:' TOWN.:OF ORTM AN' O: 41 1 �� 'Al l; ' ZONING S.0 +OF i�t'P LS Li -r Ze=f w a� V1'1 v+ s sir c AME �.. - r;y Cleric The'Stamp AgftEES OE APPEAL: d ..' ' J.. Plroc cture & Rk . arromen for an A ''f ead! I f-d F tl n$ Ten{10) op�es of#he.folioWing information must be SPEP 6 SGHEDULI�!#�aF HEAFt[NG AND subrrinEed=thirty: 3U'days prior#o the first put3lic hearing: PR PARI T dN #.EGAL NC?TICE Erallure to submit:the:required:nformation wrtitin the The MMD they honing Beard of Appeals schedules time periods prey bed may result rn a tiismissal by the tlie.apphcartt for a hearing date and prepares the legal Zuni i3aerd of an a `iication.as.incom Iete.. notice fiar rnaiirng to the games in interest{abutters)artd Tt►p information;trerern is;an abstract af:more specific for.pubtiation in•tile newspaper: The petitrarier is' requirements Elste`e an Ilia Zoning BoSrd Rulesand notified ttist the#eget notice has-been prepared and the Regulations and,fs eat meant#a:supersede there.The cost ofi the Patty to Intereat fes ,. rtloner Il cont late itemsthat re itn erlined . STEP 7 D51: ERY®F LEGAL NOTICE TO NEWSPAPER " STEP 1: ADMINISTRATOR PERMIT DENIAL: legal nob ejmm the QffceThppCcsuphee Th e petitioner,applies for a Buitdin$Pofrrtlt and of#tie Zpning Board of}appeals and delivers the legal: receivers a Zflnino bylaw©ental form:complete&by4he: notice to the local newspaper pubticaitian. Building.Commissioner.. STEP 8 PUBLIC HEARING SEp`ORE T,HE ZONING STEP Z FINDING APPLICATION FORM: BOARDF APPEAf.S, ` Petrfloner`coi7tpl8tes an ap- 1- -tion form to`petition the Thi=:petitionershould appear in.hrsber behalf, op.r bra Board of%Appeai§fora Finding All.infd=14tion as.. represented by an age�it orattorney .. n the�bsenoe of required in.tterns 1.thraugh and including 11 shall be any appearancewithout;due cause on behalf`of the completed: petitroner,'the Boa�rr3 shall decide on the matter by using the information It has otherwise received. STEP 3' PLAN I�REPARATIIQN Petruanerubmits all of the required plan rnfocmaban;as STEP 9 QEDiSItfN aced insertion alp,page 4'8 this fond: Afterthe f Baring,a copy of the.Board's dacisian will lie sent to alt Pains in Interest, Any appeal of the Board's STEP 4* OBTAIN LISfiUI=pAR ES,:iN INTEREST: decision,may be Ma e.poisuatitta maissactrusetts The over requests the Assessor's Office to comp General f.aw ch 40A 17 within twent 20 days after Ate. 3 yE ) a cerrtified lrst`af{Sorties in interdst(abiilters) the decision is:fiied with the Town.Clerk STEP ti' :$UBMIi":i4PPLICATION:. STEP 10�`RECORDING THE DEGISION AIVD PLAN&.. Petitioner submits ane{1}ongmal antl.ten(10)Xerox The petitioner is riesponstble for`reeording cer#3feation of capias of ail the raqulred inforrriatioh to the Town Clerk's " the decision an; any accornpanying.plans attiie Essex Office to.:be certified 6y>ihe Town Clerk with the-1ine. County, North#2egistry of Deeds;384:common St; and date of flling, The ongirzaE will pe:l$ft at fire T Sfuite#304, LawrQnce ,D�...8_04 ndshall cotnplete.the Clerk's Office,:and the 1.0 Xeiax Copia&will be left Gettification of Retarding farm and fararard it to the the Zoning Board of Appeals.secretary Zoning Board of Appeais and to:the Bulidino Departrrient: � ; ,.. - - - IMPORTANT PHONE Nt MBERS: :` 97'8-688-9533 Office of Community Dev.&S9{-Yices North.Andover Town Hall 160a Osgood St:, Sidg.20, Sud 2-36 1.20 Main Street North.AndoveGMA 01&l5 87.&688-8S01 Town Clerks Office 978-6.88-5842 fax for Community Development offices 978-688-950 Assessor's Office 978-668-054a Buikiirig Department 97"88-9541 Zoning Board of Appeals Office PAGE 1 of 4 MAY 2 8 2009 BOARD OF APPEALS PAGE 2 O 4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a FINDING Please complete all items 1 —11 below: 1. Petitioner: *Name, `Address and telephone number: I f'Le �{a Vyl , Fer)Ylle5S - --- *The petitioner shall be entered on the legal notice and the decision as entered above. 2. Owners of Land: Name, Address, telephone number, .and number of years under this ownership: f rrai.�, Curl(AflJahlr2'�%J ChUCt. . Years Owned.Land: 5 t yj 3. Location of Property: a. Street: -110 —Zoning District: l� b. Assessors: Map number: tfa... Lot Number: 19 __-- c. Registry of Deeds: Book Number 10~7 U Page Number: A q7 4. Zoning Bylaw Section(sr under which the petition for the Finding is made. ""Refer to the Zoning Bylaw'Denial and Plan Review Narrative form as supplied by the Inspector of Buildings. 5. Describe the Finding request: "Fhrj+ it c Zir6A Cevce-se trf �jC46Ct-fe -N=lle QUCL51CIA 0f - hf_ . L)LICt ri Comrvil��It3� t 8 © 4)n fkx baits 15 Oat nb V fx; I 10,s�L vrlrn r r +C ., c LW �v0� tbCA e cL og 3 t&)66.6--� bl l�(a i The above description shall be used for the purpose of the legal notice and decision. A more detailed description is required pursuant to the Zoning Board Rules and Regulations as elted on page 4,section 9 of this application.Failure by the applicant to describe the request clearly may result in a decision that.does not address the intent of the applicant: The decision will be limited to the request by the applicant and will not involve additional items not included above. 6 A. Difference from Zoning Bylaw requirements: indicate the dimension(s)that will not meet current Zoning Bylaw Requirements. (Lines A and B are in case of a lot split) Lot Area Open Space Percentage Lot Frontage Parking avis s 2 Sq. Ft. Sq.Ft. Coverage Fdet Spaces Front Side A Side B Rear A. Q A to 4A /OA % /I/ 3 s. % Page 3 of 4 k° NORTH ANDOVER ZONING BOAR® OF APPEALS application for a r I N D I N G IMIEW 6 B. Existing Ldt: Lot Area Open Space Percent>Lot Frontage Parking Minimum Lot'Setback Sq.Ft. Sq.Ft. Coverage Feet Spaces Front Side A Side B Rear NA 13- - 6 -6 C. Proposed Lot(s): t#,er�,��5s �aci� Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback. bI � t 2 Sq. Ft. Sq. Ft. Coverage Feet Spaces . Front Side A Side B Rear —__- 13 (o l (ol SOU 6 D. Required Lot: (As required by Zoning Bylaw&Table 2) X11 fSet vt r Lot Area Open Space Percent Lot Frontage Parking Minimum Lot Setback .f;Q uketU4 PC-4-- Sq.Ft. Sq.Ft. Coverage Feet Spaces Front Side A Side B Rear (000 Cow (o0c)c) &oo 7A. Existing Building(s): Ground Floor Number of Height Total Use of Number Square feet Floors Sq.feet Building* of Units'* *Reference Uses from the Zoning Bylaw&Table 1. "*State number of units in building(s). 7B. Proposed Building(s): Ground Floor Numberof Height Total Use of Number Square feet Floors Sq.feet Building* of Units** — ----- - CA) rJ-1i qct Loi a Lf5 5 fA i *Reference Uses from the Zoning Bylaw&Table 1. **State number of units in building(s). 8. Petitioner and Landowner signature(s): Every application for a Finding shall be made on thtis.form,which is the official form of the Zoning Board of Appeals. Every . application shall be filed with the Town Clerk's Office. 'It shall be the responsibility of the petitioner to furnish all supporting documentation with this application. The dated copy of Phis appl'icat'ion received by the Town Clerk..or.the Zoning Board of Appeals does not absolve the applicant from this responsibility.; The petitioner shall be responsible for all expenses for filing and legal notification. Failure to comply with application requirements,as cited herein and in the Zoning Board Rules and Regulations may result in a dismissal by the Zo i.g Board of this application as incomplete. Si nature: (- t..., E*- l�/1 -t" !per-", Y)o I "dU K N►'ct— V U Type above names here: FENNESSY REQUEST FOR FINDING ITEM 9 Focus: Trinitarian Congregational Church 74 Elm Street,North Andover Lizetta M. Fennessy , an abutter to the locus and a party in interest with respect to the locus(within meaning of G,L. c. 40A, § 1.1), hereby appeals to the North Andover Zoning Board of Appeals as an aggrieved party pursuant to G.L. c. 40A, § 8, and the Town of North Andover Zoning Bylaw from the decision of the North Andover Building Commissioner acting as Zoning Enforcement Officer regarding the locus and from the issuance of a building permit by the Building Commissioner to MetroPCS Massachusetts for construction and operation of wireless communications facilities on that locus,which lies in a residentially zoned district. The grounds for this appeal are that the Building Commissioner has seriously misread the clear language of the relevant portions of the Zoning Bylaw in his letter dated May 19,2009 (copy attached)refusing to enforce the Zoning Bylaw as requested in my letter to him dated May 15, 2009(copy attached). In rejecting my request for enforcement,the Building Commissioner advances five(5) enumerated reasons. 1. In argument(1),the Building Commissioner defends his previous interpretations of Section 8.9 3 (c)(v) of the Zoning Bylaw.Ji-r"is purported interpretation is entirely different from that of his predecessor(who was correct). In any event,the Building Commissioner fails to understand that the language in Section 8.9 3(c)(v) of the Zoning Bylaw relies upon the definitions in Section 8.9.2 (q)(4), which the Building Commissioner ignores. Section 8.9 3 (c)(v)is quite unambiguous that"[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." Buildings are explicitly excluded from the preexisting structures referenced in Section 8.9 3 (c)(v)(2), which section the Building Commissioner exclusively relies upon. By the explicit terms of the definition section of the wireless service facilities portion of the North Andover Zoning Bylaw, Section 89 3 (c)(v)(2)does not apply to buildings or parts thereof[gee Section 8.9.2 (q)(4)]. By its own terms, Section 8.9 3 (c)(v)(2)deals exclusively with structure-mounted wireless service facilities. Structure-mounted is defined so as to exclude buildings("Structure-mounted:[Antennas are] Mounted on a structure other than a building.") See Section 8.9.2 (q)(4). Section 8.9 3(g)(v)(2), in fact,presents setback requirements for previously existing structures other than buildings. Therefore, Section 8.9 3 (c)(v)(2)does not apply at all to buildings(i e.,here,t1f6'"church buildings). In any case, where an adjacent parcel contains an educational or residential use,new or existing structures for wireless service facilities require a 600 ft setback. This view of Section 8.9. 3 (c)(v) is also the view of the Telecommunications Subcommittee members who drafted this section of the Zoning Bylaw below,and as evidenced in their letter dated January 26, 2009 (copy attached). "As the committee responsible for the amended setbacks above,we affirmatively state that Section 8.9 3) c)v) (2)is written solely for cases of wireless structures in existence at the time of this bylaw in 2000,and that all new wireless structures, whether attached to a new or existing structure, shall have a minimum setback of 600 ft from residential or educationally zoned properties per the requirements of Section 8.9 3)c)v) (1). Any interpretation that Section 8.9 3)c)v)(2) applies to existing buildings,rather than preexisting wireless structures,is simply incorrect." The Building Commissioner misreads Sections 8.9.2 (q)(4)and 8.9 3 (c)(v) and has improperly issued a building permit to MetroPCS based on this misreading. 2 Argument(2)really makes the same erroneous contention as is found in Argument(1), with the gloss that the Zoning Bylaw"requires"that a"pre-existing"structure(church steeple) be used for the mounting of new antennas and equipment. It is true that the Zoning Bylaw expresses a preference of sorts ("if feasible")for the use of"preexisting structures" [Section 8.9 3(b)(1)] but only for"preexisting structures"that are located more than 600 ft from residences or schools. This last portion of the Zoning Bylaw [see below],the Building Commissioner has chosen to omit from his explanation of his decision. 3 Argument (3)relies on a portion of G.L. c. 40A, § 11 relating to appeals of special permits. However, my contention is that the Zoning Bylaw requires a variance for a proper building permit to issue,not a special permit. It is the Building Commissioner who claims that the Zoning Bylaw requires a special permit. That is not trite. That incorrect decision by the Building Commissioner is precisely one of his errors in interpreting the Zoning Bylaw that I am quite properly contesting in this appeal. 4 Argument(4) is largely irrelevant to the current appeal which explicitly seeks only enforcement of the setback requirements of Section 8.9 3 (c) (v)of the Zoning Bylaw as duly adopted(and recently reaffirmed)by the 2009 North Andover Town Meeting. This appeal does not relate to a proper interpretation.of the Telecommunications Act of 1996 (TCA)and the Building Commissioner's argument, where it is not repetitious of points raised in other arguments(for example,the repeated reference to G.L. c. 40A, § 11),is irrelevant to my request that the Building Commissioner enforce the Zoning.Bylaw as written. Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located.In addition,the following setbacks shall be observed. (1) ...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. The MetroPCS/Trinitarian.Congregational Church facilities here will be within 600 ft of existing residential and/or educational uses,and constitute a straightforward violation of the North Andover Zoning Bylaw for residential districts and schools. It is the duty of the Building Commissioner to enforce the Zoning Bylaw as adopted by Town Meeting and approved by the Attorney General,and not to gut it. S. Argument(S)again refers to the Building Commissioner's personal interpretation of the TCA, such as it is. However, neither the TCA.or anything else vests in the Building Commissioner the power to decide or not whether TCA provisions are applicable in a given case. The Building Commissioner's fifth argument in effect usurps to himself the powers and authority of both the Planning Board and the'Zoning Board of Appeals(not to mention the Conservation Commission.,and other duly constituted or elected boards),My request was that the Building Commissioner enforce the Zoning Bylaw as written and adopted by Town Meeting,not that he go on a toot of his own.. I request, on appeal under G.L:c.40A, § 8,that the Zoning Board of Appeals reverse and vacate the decision of the Building Commissioner with respect to the setback provisions of the Zoning Bylaw for residences and schools. I also request that the Zoning Board of Appeals reverse the decision of the Building Commissioner to issue a building permit to MetroPCS for construction.and operation of commercial wireless communication facilities in the Trinitarian Congregational Church and that the.building permit be vacated,rescinded, and.recalled as void. and of no effect. Dated: May 28,2009 )/^�\ EXHIBIT Section 8.9.2 (g) (4) Mount.The structure or surface upon which antennas are mounted, including the following four types of mounts: (1)Roof Mounted: Mounted on the roof of a building. (2) Side-mounted: Mounted on the side of a building (3)Ground-mounted: Mounted on the ground. (4) Structure-mounted: Mounted on a structure other than a building [emphasis added] Section 8.9 3_(c)(v) Setbacks All.wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition,the following setbacks shall be observed. (1) In order to ensure public safety,the minimum distance from the base of any ground mounted wireless service facility to any property line, shall be 2x the height of the facility/mount,including any antennas or other appurtenances.This set back is considered the "fall zone". A:minimum setback of 600 feet shall be reguired 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-typcs. (2) 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 appy. In the case of the preexistent non-conforming structures,wireless service facilities and their equipment shelters shall not increase any non-conformity. [emphasis added] %%CRT#, � 4 V. AC U BUILDING DEPARTMENT Community Development Division May 19, 2009 Lizetta M. Fennessy 77 Mm Street North Andover,MA 01845 Re: Metro PCS Facility at Trinitarian Congregational Church on Flet Street Dear Ms. Fennessy: I am writing in response to your letter to me dated May 15, 2009. You have requested that I enforce the North Andover Zoning Bylaw and deny a building permit to Metro PCS to install a wireless facility in the steeple of the Trinitarian Congregational Church on Urn Street. Your request for the denial of the building permit is denied for the following reasons: (1) Pursuant to Mass. General Laws Chapter 40A, Section 7 and Section 10.1 of the North Andover Zoning Bylaw, I am charged with the enforcement of the North Andover Zoning Bylaw. Your letter cites Section 8.9.3(c)(v)(1) and the 600 foot setback referenced therein as your alleged grounds for the denial of the building permit. With regard to that section of the bylaw, on December 3, 2008,I wrote to the North Andover Planning Board and stated in part: "The aforementioned Section does not apply to the proposed installation at the Trinitarian Congregational Church of North Andover, as the proposed antennas will be installed within the existing church spire. Furthermore, Section. 8.9.3(c)(v)(2) reads in part: . . . `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.' 1600 Osgood Street,Building 20,Suite 2.36,North Andover,Atassachusetts 03845 Phone 978.688.9545 fax 978.688.4542 Web www.townofnorthandover.com 1t � Wherefore, I am of the opinion that the Applicant does not need to petition the North Andover Zoning Board of Appeals for a variance under Section 8.9.3(c)(v)(1)." That statement was my interpretation of the Zoning Bylaw and was my opinion then, and it is my interpretation of the Zoning Bylaw and my opinion now. The Church is a "preexistent structure" as referenced in the bylaw. As required by Section 8.9.3(c)(v)(2), the project is in compliance with the setback provision of the applicable zoning district. (2) Section 8.9.3(b)(i)of the Zoning Bylaw states in part: "Location: ,Applicants seeking approvalfor wireless service facilities shall comply with the following: i) If feasible, wireless service facilities s all be located on preexistent structures, including but not limited to buildings or structures, preexistent telecommunications facilities, utility poles and towers, and related facilities, provided that such installation preserves the character and integrity of those structures." (emphasis supplied) 'therefore, it is clear that the Bylavr fggg rgs("shall comply"), if feasible, the location of a facility such as proposed by Metro PCS,upon a preexistent structure such as the steeple of the Trinitarian Congregational Church. (3) On. March 3, 2049, the North Andover Planning Board approved a Wireless Special Permit for the subject facilities, with. detailed. Findings of Fact in their decision including: "12. Neighbors and other citizens in opposition to the project submitted documentation in support of their position. F.Iowever., the PIanning Board believes that the applicant has demonstrated compliance with the Town of North Andover Zoning Bylaw requirements for this application." You and others have appealed the Planning Board decision by filing a complaint in Essex Superior. Court against the Planning Board, the Church and Metro PCS contending that the section of the bylaw you referenced requires a 600 foot setback. That litigation is currently pending. However, M.G.L. Chapter 40A, Section 11 states in part: "The person exercising rights under a duly appealed special permit does so at risk that a court will reverse the permit and that any construction performed under the permit may be ordered undone." Therefore,the building permit as requested by Metro PCS will not be denied on the basis of the pendency of the litigation on your appeal of the special permit approval or on the grounds you contend in the litigation. (4) In its Findings of Fact the Planning Board also stated: "9. The applicant has demonstrated that the proposed wireless facility will be in compliance with FCC regulations regarding Maximum Permissible Exposure (NOPE)limits, as indicated by the submittals and reports referenced at the end of this decision. in Condition #16. The Telecommunications Act of 1996 prohibits this Board from taking health effects of RF transmissions into account beyond FCC requirements. ead 11. The application was reviewed by a consultant retained by the Planning Board Mark Hutchins, a certified radiofrequency engineer, who verified that the application is in compliance with the federal Communications Commission (FCC) standards and that the application complies with the town of North Andover's bylaw with regard to RF engineering issues, including but not limited to the following: ® The determination that a significant gap in coverage exists. ® The determination that no alterative sites are available and technically feasible to close the coverage gap." In accordance with the Planning Board's )Findings, and the certification by the Board's radiofrequency engineer, and the previously stated reference to M.G.L. Chapter 40A, Section 11, the building permit will not be denied on the grounds you alleged. (5) The Federal Telecommunications Act of 1996 provides that local governments may not "prohibit or have the effect of prohibiting the:provision of personal wireless services." The Planning Board found that the Federal Act prohibited consideration of health effects beyond TFCC requirements, that a significant gap in coverage existed, and that there are no alternative sites which are available and technically feasible to close the coverage gap. If I were to grant your request on the grounds you have specified I would prohibit the provision of personal wireless services, in violation of the Federal Act, and I respectfully decline to violate that Act. For the foregoing reasons your request is denied. Very truly yours, Gerald A. Bro cc: Metro PCS Trinitarian Congregational Church Board of Selectmen Planning Board .honing Board of Appeals Mark Rees Curt Bel:lavance Judy Tymon May 25, 2009 77 Elm Street North Andover, MA 01845 Gerald Brown Zoning Enforcement Officer 16010 Osgood Street Building 20 Suite 2-36 North Andover, MA 0:1845 Attention: Zoning Enforcement Officer This letter is written with respect to the case of the MetroPCS proposal to install wireless antennae in the steeple of the Trinitarian Congregational Church located at 72 Elm Street. in accordance with Chapter 40A,Section 7 of the Massachusetts General Laws, I hereby request that you enforce the Town of North Andover Zoning Bylaw with regard to wireless facilities,Section 8.9.3)c)v) (1),which states: v)Setbacks All wireless service facilities and their equipment shelters shall Comply with the building setback provisions of the zoning district in which the facility is located.. In addition,the following setbacks shall be observed. ti t.) In carder to ensure p ubfie sa&ty;the m.nFa un,distance from the base ofany ground-niountcd wireless service facility to arsy property lite, shall be 2x the height of the facility/mount, including any antenna;or other appurtenances.17h:is set back is considered.the"fall zone". A minimum setback of 600 feet shall be required for all wireless devices.antenna and their mounting structures,whether attached to a new or existing structure,as tneasured from the adjacent property line of properties which are either zoned.for,or contain,residential and or educational uses of any types. On March 3,2009,the Town of North Andover Planning Board issued a special permit for this proposed installation, in violation of Section 9.9 3)c)v)(1)of the town's bylaw. In accordance with Chapter 40A, a building permit cannot be issued for projects that violate the zoning bylaw,without a variance from the ZBA. Therefore, in this case you are required to enforce the bylaw and deny a building permit. I look forward to your notification,in writing,of any action or refusal to act,and the reasons therefor, within 14 days of your receipt of this request,as required by Chapter 40A,Section 7. Thank you for your prompt attention to this matter.. Sinc �ely, Liz"", a M.Fennessy t,`� •� C: Zoning Board of Appeals;Attri:Chairman Alfred Manzi III 26 January 2009 To the Planning Board: We,the undersigned,are members of the.Telecommunications Sub cammittee that was appointed in-2000 to study the use and placement of wireless devises within heIbwn of North.Aitcihveri.and tri mo€Ny the bylaw as appropriate based on the.results of our study, O.ur Subcomittee was approved unanimously,by the Board of Selectmen at the August 21,:206.0 Board of Selectmen meeting. Our work culminated in the amendmnt of Zoning Bylaw artthe oecember 11,2000 Special Town . . Meeting. The provisions for setbacks In Section 8:9 of the bylaw were amended at the meeting to read ass follows: V)80backs.A.11 wireless service facilities and heir equigirr a shelters shall comply with the. building setback provisions of the zoning district in which the facility is located.In addition,the following setbacks sball be observed. (1)b3 order to ensure public qty,the tifini.inuiri d'i, nce from the lase-of any gro' mounted vvirelcss:service facility to any p�pa�Y lute,jhaff t 2rt the height of tate facilitylmottlit,Meluding any antemiat or oder app nances.This sot back is coatsidarecl lite``"fall�oii ":A mmimum setback of 600 feet shell be requiredfor all wireless devices;artrtezitia and-their m6atnting structures;whether attwhed to.a new or existing sti cteaM as measua d frons the adjacent property sin ofiropertles which are either- do for,or.contaK residential and or educational rises ofany types.- (2) ypes.(2)k tht eViont.that.4 pr6existent structure:is proposed as a mount for a wireless service. facilrty;lila setbackpriovisions.o€lite zortg distrFct shalt apsly.In the case aftho ^ at Nvir� :�$re '�r�c, elpe-e.e.Vice MnVa ties and their equip- she[ .i-she[ .as..w�ra tf shall not increase any noir-aonflor�iity. This:isthe current bylaw. We:u' nderstAnd t6t this has E�eeri sorn confuelon about the meaning of the by+lav�with regard to the in#allativn of`nisw:antennas'irt exiling bieildings: The undersigned wish.toclarify the confusion. As.the ComMi6eip respon4le tbr;theametided setbacks above,.wie affirmatively state that Section 9.9 3}c}v)(2)3s Writteet stalely fpr,rids ofvvireless structwres In existence at the tune of this bylaw:in 2t3t i and that all new ytireless structures,whether attached to a.new or existing structuM Shall have a minimum setback of 600 ft €tom xasidentda.l or educatipnally.zoneal proWrties per the res qu rerhents of Sectlon 9.9 3)c)v)(1). Any iritepPetatibri that Sect ton .9 3}c}V}(2)applies to existing buildings;rather than preexisting wireless strictures;is simply:incorrect. S;stcere4y;. KeDtlttVlltGlieli,:Esq . Donald Stewart Lynn Arvikar Fbrm r Member;BQS_ .: Former.Member,Bos a.W-NICE F'ONX / +........aaa��: o3pt - z anon:mast tse t of I AI . Ctdss�t Re: Letter.for-ignatura Moridap,January 26,20(19 8:aS PM Fmm.. 'S Fink"<PeacefulRevoluttonary0comcast.net> To: *Uz FennesW<llzettafennassygyahao:comn- ..Dear Liz: # Mviewod the letter and agFee with it and authofte you to sign A on my behalf. Please Corect any name. Bernice At 05:39 PM 1/26/2009, you wrote: Dear Beatrice, # am sorry tohear of your health issues that prevent you torn wing,and therefore.tigning this.letter. I v►aould appregata it if you could ravie�v this i' ##et, and if you sgtee with it, then pli erneii me lack with:a s.OeMerlfi thS.tyau ag1 a With the#atter and authorizing the to sign.iton:your behalf. [appreciate.iate.your time. Thanks vary muchl . Sincerely, ::Ll:i F rlt> a sy PETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY& MILLER LLP 131 Oliver Street, 5h Floor BOSTON, MA 02110 781-985-0789 tel. 866-380-6570 fax pbmorin@comcast.net July 28, 2009 Zoning Board of Appeals Town of North Andover 1600 Osgood Street North Andover, MA 01845 Re: Appeal of Lizetta Fennessey 70 Elm Street,North Andover Application of 600' Setback Dear Members of the Board of Appeals: This letter is to set forth the position of MetroPCS with respect to the appeal of the building inspector's decision on the request for enforcement brought by Lizetta Fennessey. At the outset, I will to remind the Board that in order to pursue her appeal before this Board, Ms. Fennessey must have standing under Chapter 40A §8. She asserts her standing by the mere virtue of being an abutter to the church. However, her status as a "party in interest" grants her only presumed standing, and it is rebutted with presentation of evidence warranting a contrary finding. Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20, 34 (2006). I offer that evidence in the attached. The enclosed documents consist in large measure of portions of the record of the public hearing before the Planning Board on MetroPCS's application for a special permit and records of public statements made by Ms. Fennessey and her husband in opposition to the wireless installation that she here opposes. The Planning Board records demonstrate that MetroPCS's installation complies with the FCC's requirements with respect to RF emissions. Consequently, federal law pre-empts both the Planning Board and the Zoning Board from interpreting the town's zoning bylaw on that basis. Absent her(obvious) opposition to the facility on that basis, Ms. Fennessey is hard pressed to assert some other basis for standing that the zoning bylaw is intended to protect. Standerwick, supra at 30 (standing is conferred "only on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect"). Only such an interest would permit her either to appeal Mr. Brown's decision to you or to appeal your determination to court. Green v. Board of Appeals of Provincetown, 404 Mass. 571 (1989). 4 Zoning Board of Appeals July 28, 2009 Page 2 Regarding the merits of Ms. Fennessey's appeal, I would reiterate what Mr. Brown points out in his reply—that the legal claim made in Ms. Fennessey's appeal is already the subject of her lawsuit against the Planning Board, and therefore ought not be litigated twice in different actions. As Mr. Brown points out, MetroPCS's building permit is "at risk," as the statute provides, specifically to prevent frivolous claims such as Ms. Fennessey's from interfering with the property rights of others. Mr. Brown's response covers the substance of the bylaw sufficiently that there is no purpose in reiterating his explanations here. But there are two points to which I would like to add additional information: (1) When considering whether or not the 600' setback should apply to all wireless facilities of any kind, one must determine first whether the setback is a dimensional one relative to structure, or one that is intended to apply generally to the wireless use. The legitimate zoning purpose of setback requirements is to protect legitimate concerns for "safety, aesthetics, and privacy." Petrucci v. Board of Appeals of Westwood, 45 Mass. App. Ct. 818, 826 (1998). Is the purpose of the 600' setback to address a safety, aesthetic of privacy issue related to the physical aspect of the wireless structure, or is it simply to keep all wireless facilities away from certain areas, without regard for their impact on the interests that the zoning bylaw is intended to protect? The installation for which the special permit was issued is not subject to any structural setbacks, not just because it is an attachment to an existing building (as the building inspector has ruled), but more importantly, because all of the elements of the installation are contained within the existing church structure. The installation is undetectable to the human senses, except for the mere knowledge (by some) that the facility exists. So one would have to ask, what safety, aesthetic or privacy issue is raised by its presence? There is none. The application of a setback limitation to it could have no other conceivable purpose other than to restrict the wireless use. (2) Without taking anything away from the ardency of Ms. Fennessey's advocacy, it is an unavoidable fact that the Telecommunications Act of 1996, and the federal court in this judicial district compel the building inspector, the planning board and this board to interpret the North Andover Zoning Bylaw in a manner that is consistent with the Act. See,Nextel Communications of the Mid-Atlantic v. Town of Wayland, 231 F. Supp. 2d 396 (2002); Omnipoint v. Town of Lincoln, 107 F. Supp. 2d 108 (2000). Under than injunction, it is necessary that the zoning bylaw not be interpreted or applied so as to regulate wireless facilities on the Zoning Board of Appeals July 28, 2009 Page 3 basis of radio frequency emissions. Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 482 (1999): 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(FCC). 47 U.S.C. § 332(c)(7)(B)(iv). In that regard, it really is irrelevant what the town meeting or the wireless bylaw committee "intended"the 600' setback to mean. It is important what it was intended to do, because if its intent was to advance a purpose that is in violation of federal law, then it cannot be enforced under any circumstances. Although none of the opponents of the MetroPCS application have offered any concrete rational for the 600' setback, it could not be clearer from the history of this matter, and from the public statements made by Ms. Fennessey and her cohorts, that applying the 600' setback would be intended to "protect"people from the allegedly harmful effects of radio frequency emissions. This purpose is plainly illegal,the setback is unenforceable for that purpose, and North Andover's town counsel, Thomas Urbelis, has cautioned the members of the wireless bylaw committee repeatedly about this,to no apparent avail. It is only right that the Planning Board members showed the circumspection and wisdom to listen to town counsel and act in accordance with the law. All sides of this issue can agree that it is regrettable that so much vituperation is generated by this case specifically and the issue generally. There is room for honest disagreement in this matter; but there is no room for lawlessness in the exercise of municipal police power. That, we believe, is what Ms. Fennessey is asking you to engage in. We are confident that town counsel has provided you with appropriate advice, and trust that the Board will act accordingly. Thank you for your attention. Very truly yours, Peter B. Morin COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. DEFENDANTS MOTION OF DEFENDANT METROPCS MASSACHUSETTS, LLC FOR SUMMARY JUDGMENT The defendant, MetroPCS Massachusetts, LLC, moves pursuant to Mass. R. Civ. P. 56(a) for Summary Judgment against the Plaintiff on the claim brought in its appeal of the decision of the North Andover Planning Board. As grounds therefore, the defendant states that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In support hereof, the Defendant refers to and relies upon the attached Memorandum, Statement of Material Facts and the following documentation submitted herewith: Exhibit A - AFFIDAVIT OF FRANZ PIERRE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Exhibit B - AFFIDAVIT OF JUDITH TYMON Exhibit C - REPORT OF BRONA SIMON, EXECUTIVE DIRECTOR AND STATE HISTORIC PRESERVATION OFFICER FOR MASSACHUSETTS HISTORICAL COMMISSION, DATED FEBRUARY 19, 2009 Exhibit D - AFFIDAVIT OF DONALD L. HAES, JR., PH.D. Exhibit E - AFFIDAVIT OF MICHAEL BAHTIARIAN Exhibit F - AFFIDAVIT OF WILLIAM J. PASTUSZEK, JR. Exhibit G - NOTICE OF DECISION OF THE TOWN OF NORTH ANDOVER PLANNING BOARD DATED MARCH 3, 2009 Exhibit H - AFFIDAVIT OF MARK HUTCHINS Exhibit I - MINUTES OF THE MEETINGS OF THE TOWN OF NORTH ANDOVER PLANNING BOARD HELD ON DECEMBER 2, 2008, JANUARY 6, 2009, JANUARY 27, 2009, FEBRUARY 24, 2009, AND MARCH 3, 2009 Exhibit J - AFFIDAVIT OF COUNSEL Exhibit K - NEWS ARTICLES REGARDING WIRELESS APPLICATION Exhibit L - LETTERS TO THE EDITOR OF MARTHEA FOURNIER Exhibit M - MEMORANDUM OF THOMAS J. URBELIS, ESQ., TOWN COUNSEL FOR THE TOWN OF NORTH ANDOVER, MASSACHUSETTS, TO WIRELESS BYLAW REVIEW COMMITTEE, DATED OCTOBER 29, 2008 Exhibit N - ELECTRONIC MAIL CORRESPONDENCE FROM JUDY TYMON, AICP, TOWN PLANNER FOR THE TOWN OF NORTH ANDOVER, DATED JANUARY 28, 2009 Exhibit O - CORRESPONDENCE FROM GERALD A. BROWN, INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER FOR THE TOWN OF NORTH ANDOVER BUILDING DEPARTMENT, DATED DECEMBER 3, 2008 Exhibit P - CORRESPONDENCE FROM GERALD A. BROWN, INSPECTOR OF BUILDINGS AND ZONING ENFORCEMENT OFFICER FOR THE TOWN OF NORTH ANDOVER BUILDING DEPARTMENT, DATED FEBRUARY 24, 2009 Exhibit Q - EXCERPTS FROM TOWN OF NORTH ANDOVER ZONING BYLAW Exhibit R - MISCELLANEOUS CASE LAW Respectfully submitted, MetroPCS Massachusetts, LLC By its attorneys, Peter B. Morin, BBO #355155A McDermott Quilty & Miller LLP 131 Oliver Street, 5th Floor Boston, MA 02110 617-946-4600 pmorin@mqmllp.com A COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. DEFENDANTS AFFIDAVIT OF FRANTZ PIERRE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Now comes FRANTZ PIERRE, affiant, and makes the following statements under the pains and penalties of perjury: 1. My name is Frantz Pierre. I have personal knowledge of all statements made herein. 2. I am a radio frequency engineer for MetroPCS, Inc., Inc., responsible for radio frequency design in Massachusetts. One of the sites I was responsible for designing is the proposed location at issue in this lawsuit, an installation inside of an existing church steeple located at 70 Elm Street,North Andover. 3. I am thoroughly familiar with all of the facts relative to the decision to seek permitting for the location at issue in this lawsuit, including the evaluation of alternative sites in the vicinity, the presentation of all factual information pertaining to this site before the North Andover Planning Board, and the conduct of the public hearings by the Board, at which I was present at all times. 4. MetroPCS, Inc., the defendant in this lawsuit and the applicant before the Planning Board, operates a communications venture committed to providing integrated wireless personal communications services ("PCS") by building wireless networks in specified markets across the United States under license purchased from the Federal Communications Commission ("FCC"). One of those market areas is in Eastern Massachusetts and includes the Town of North Andover. 5. Mobile telephones using PCS technology operate by transmitting a radio signal to antennas mounted on a tower, pole, building, or other structure. Because the PCS system has a lower signal and a much higher frequency than traditional cellular technology, the range between the PCS mobile telephone and the antennas is limited, and the antenna must be placed at a sufficient height to achieve a"line of sight" between one antenna and the connecting antenna. 6. North Andover is an area where metroPCS has identified a need to locate a wireless communications facility. A wireless telecommunications facility in this vicinity is necessary to provide coverage in the area and resolve a significant gap in metroPCS' wireless network. 7. I have reviewed the accompanying application for the proposed installation of a wireless communications facility at 70 Elm Street,North Andover. I have analyzed the potential benefits this site would represent to the metroPCS network and its users through radio frequency propagation modeling. I employ computer simulations, which incorporate the results of field tests of existing facilities,to determine radio frequency (RF) coverage for the metroPCS system, and to identify gaps in coverage. These simulations model characteristics such as antenna type, antenna height, output power, terrain, ground elevation and RF propagation effects of the frequency utilized. 8. An evaluation of the proposed location has indicated that an antenna height of 80 feet above ground level (AGL) at this location is required to satisfy the coverage requirements for metroPCS' Network. Any reduction in the proposed height and/or antenna configuration would result in coverage footprint shrinkage. This significantly limits the site's effectiveness in connecting with surrounding sites and severely impacts the level of service metroPCS is attempting to provide. Changes to the site configuration would limit the site's ability to resolve a significant existing coverage inadequacy in North Andover. 9. In seeking an appropriate location for a cellular site in North Andover, MetroPCS first sought to identify existing structures, in order to minimize visual intrusiveness and to comply with the requirements of the zoning bylaw. After 2 conducting an extensive search of all areas, MetroPCS determined that the least intrusive means of providing wireless service was to install a facility within the interior of the existing church steeple at the Trinity Congregational Church, which is located in a residential zone. 10. Because of the topography and tree canopy in the area, we determined that antennas in the steeple at a centerline height of 80'feet in the residential zone would provide more reliable service than the only available alternative, which was the possible erection of a second tower at a height of 150' upon land owned by the town of North Andover known as the "Stevens Estate." 11. I examined the Stevens Estate alternative and found that although it adequately linked to the South Lawrence facility, it nevertheless left a significant gap in coverage for a substantial portion of the residential neighborhood sought to be served with wireless service. This finding was supported by the independent consultant hired by the Planning Board to review my network design. 12. There is one portion of the coverage area that the Stevens Estate location would provide coverage to that the church location does not. For that reason, MetroPCS would prefer to have installations at both locations. This is also the preference for one of MetroPCS's competitor's, T-Mobile USA. My conclusion was also supported by the independent consultant for the town. 13. We also examined the feasibility of two existing smokestacks located a short distance from the church steeple, but those structures were not available for leasing. 14. MetroPCS's proposed facility comprises the installation of three panel antennas inside of the church steeple, hidden behind.louvers designed to match the existing building components of the steeple. Cables would run down the inside of the steeple to an equipment room that is secured from entry by unauthorized persons. 15. I have been responsible for installations similar to that proposed for this church, and I have observed those installations after they have become operational. Based upon my personal observations, these installations are invisible to the public from the exterior of the building. 16. It is a usual practice of wireless facility site acquisition personnel to attempt to locate wireless facilities within or upon existing structures, such as church steeples, that provide sufficient elevation for wireless antennas to be effective, because such placements eliminate the need for new and free-standing steel monopole structures of greater height and are therefore the preferred alternative to municipal permitting authorities and the general public. 3 17. In the course of my 11 years of work as a radio frequency engineer in the wireless industry, I have personally seen at least 300 wireless installations across the New England landscape. It is my opinion, based on those observations and the examination of this proposed site, that the proposed facility at issue in this law suit is one of the least intrusive wireless installations I have seen. Signed and sealed this 21 day of April, 2009 under the pains and penalties of perjury. Frantz Pierre 4 B � . COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. And METROPCS, INC. DEFENDANTS AFFIDAVIT OF JUDITH TYMON JUDITH TYMON, first being duly sworn, hereby deposes and says as follows: 1. I am a certified planner and a member of the American Institute of Certified Planners. I have personal knowledge of the statements made herein. 2. 1 am currently employed as Town Planner for the Town of North Andover, Massachusetts. 3. In my capacity as Town Planner, I am responsible for maintaining the record of public hearings that are conducted by the North Andover Planning Board. In that capacity, I receive and mark all submissions into the public record of such proceedings and oversee the taking, approval and maintenance of the minutes of those hearings. 4. I have reviewed the following documents, copies of which are attached as exhibits to the Motion of Defendant MetroPCS Massachusetts, LLC for Summary Judgment, filed with the Civil Clerk of the Essex Superior Court (the"Motion") in connection with the above-caption matter: a. Minutes of the Meetings of the Town of North Andover Planning Board held on December 2, 3008, January 6, 2009, January 27, 2009, February 24, 2009, and March 3, 2009; b. Report of Brona Simon, Executive Director and State Historic Preservation Officer for Massachusetts Historical Commission, dated February 19, 2009; C. Report of Donald L. Haes,Jr., Ph.D., CHP, dated November 11, 2008; d. Site Specific Cellular Communications Installation Analysis of William J. Pastuszek, Jr., MAI, SRA, MRA, dated February 10, 2009; e. Notice of Decision of the Town of North Andover Planning Board dated March 3, 2009; f. Noise Study prepared by Noise Control Engineering, Inc. for Hudson Design Group, LLC dated November 17, 2008; g. Wireless Facility Analysis prepared by Mark F. Hutchins, Radiofrequency Engineer, for the Town of North Andover Planning Board dated January 19, 2009; h. Correspondence from Gerald A. Brown, Inspector of Buildings and Zoning Enforcement Officer for the Town of North Andover Building Department, dated December 3, 2008; i. Correspondence from Gerald A. Brown, Inspector of Buildings and Zoning Enforcement Officer for the Town of North Andover Building Department, dated February 24, 2009; j. Electronic mail correspondence from Judy Tymon, AICP, Town Planner for the Town of North Andover, with attachments including Affidavit of Robert Noone and statement of Lauretta Wentworth; k. Memorandum of Thomas J. Urbelis, Esq., Town Counsel for the Town of North Andover, Massachusetts, dated October 29, 2008. 5. In my capacity as Town Planner, I hereby certify that the copies of the above documents which are attached to the Motion are true and accurate copies of selected documents from the public record of MetroPCS Massachusetts, LLC's application to the Town of North Andover Planning Board for a Wireless Facilities Special Permit for the site located at 70 Elm Street,North Andover, Massachusetts. 2 Signed under the pains and penalties of perjury this day of July, 2009. 1*16— -G 11 dith Tymon 3 C f E B 21 B Street I Burlington,MA 01803 C O N S U L T I N G Tel: (781)273.2500 wwwebiconsuldng.com Fax: (781)273.3311 January 26,2009 RECEIVF,D Massachusetts Historical Commission Massachusetts Archives Building 7 220 Morrissey Boulevard JAN 2 6 2009 Boston,MA 02125 Attn.: Historic Review MASS. HST. COMM Subject: Addendum to FCC Form 621 BOS0380C 1 Trinitarian Congregational Church 70 Elm Street, North Andover, MA EBi Project#61086701 MHC#26663 EBi Consulting (EBI) is preparing an environmental review on behalf of MetroPCS NE for the property noted above as part of Its regulatory review by the Federal Communications Commission (FCC). The review is focused on the National Environmental Policy Act(NEPA) compliance and includes an evaluation of whether historic properties or archaeological sites may be affected by the proposed telecommunications facilities at the address noted above under Section 106 of the National Historic Preservation Act(NHPA). On November 6, 2008 EBI submitted a request for comments to your office regarding our "No Adverse Effect" determination for the above-referenced telecommunications installation project In correspondence dated November 25, 2008 the Massachusetts Historical Commission concurred that the proposed project will have "No Adverse Effect" on significant historic or archeological properties. A copy of,this response Is attached. After receiving the"No Adverse Effect"response, EBI received revised project drawings. The previous project proposed to collocate a total of four antennas.within the church bell tower at the Subject Property at a centerline elevation of 102 feet above ground level. Support equipment was proposed be placed within a proposed 10-foot by 16-foot lease area inside the bell tower. Proposed power/telco conduits would extend from the lease area,through the church interior,to existing power panel on the south side of the church. The revised design.proposes to collocate a total of six antennas,behind the fiberglass louvers of the church bell tower, at a centerline elevation of 80-feet above ground level. Support equipment will be placed within a proposed 6'-8"by I T-10"lease area under the stairs,within the church interior,at ground level.Coaxial cables are proposed to run within the church Interior from the proposed equipment room to the proposed antennas Inside the bell tower. Proposed power/Telco conduits will extend from the proposed lease area,through the church interior, to existing power panel on the south side of the church. The revised drawings for the proposed project are attached. Changes to the project design have been taken into consideration and EBI's determination remains "No Adverse Effect"on historic properties. After review of the MHC's l Ues and the materials you submitted,the MHC has determined that the proposed project will have"no adverse effecf'on Am9 ie-m t historic or archaeological rties. 41YO J_ Krona Simon Date � � � � � t Executive Dinectoar State Histmie ttesorv,�tton Ol'ilcW. FEB 2 3 2009 Massachusetts His�orIcat Qanmis By D i COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. And METROPCS, INC. DEFENDANTS AFFIDAVIT OF DONALD L. HAES,JR., PhD DONALD L. HAES, JR, first being duly sworn,hereby deposes and says as follows: 1. My name is Donald L. Haes, Jr. I have personal knowledge of the statements made herein. 2. I am a radiation safety specialist and registered provider of radiation control health physics services. My curriculum vitae is attached hereto and incorporated herein by reference. 3. One of my fields of work involves the review of information pertinent to the installation of wireless communications facilities in order to determine regulatory compliance with the Maximum Permissible Exposure levels of radiofrequency emissions promulgated by the Federal Communications Commission. 4. On or about October of 2008, I was retained by MetroPCS Massachusetts LLC to perform a review of its proposed wireless facility to be located within the church steeple of the Trinitarian Congregational Church at 70 Elm Street,North Andover, MA. 5. A description of my methodology and the results of my analysis are contained in a report dated November 11, 2008 identified as "Proposed Metro Massachusetts, LLC ("Metro")personal wireless services (PWS)panel antennas to be mounted within the steeple of the Trinitarian Congregational Church building located at 70 Elm Street in North Andover, MA" (the"Report")which was submitted to the North Andover Planning Board during the conduct of its public hearing on MetroPCS's application for zoning relief that is the subject of this litigation. 6. As stated in the"statement of certification"contained at the end of that report, my analyses, opinions, and conclusions were developed, and the report has been prepared, in conformity with the American Board of Health Physics [ABHP] statement of standards of professional responsibility for Certified Health Physicists. 7. A true and accGrate cony of the Report is attached hereto. Signed under the pains and penalties of perjury this day of July, 2009. D nal . Haes, Jr. /`- 2 Donald L. Haes, Jr., A.D., CHP Radiation Safety Specialist MA Radiation Control Program Health Physics Services Provider Registration#65-0017 PO Box 368,Hudson,NH 03051 Voice:603-303-9959 Fax:603-386-6315 Email:donald_haes_chp@verizon.net November 11,2008 Permitting Boards North Andover, MA Re: Proposed Metro Massachusetts,LLC("Metro")personal wireless services(PWS) panel antennas to be mounted within the steeple of the Trinitarian Congregational Church building located at 70 Elm Street in North Andover,MA. PURPOSE . I have reviewed the information pertinent to the proposed installation at the above location. In order to determine regulatory compliance, theoretical calculations of maximal radio-frequency [RF]fields have been prepared. The physical conditions are that Metro panel antennas are proposed to be mounted within the steeple of the Trinitarian Congregational Church building such that the centerline of the antennas would be 80 feet above ground level [AGL](See Figure 1) This report considers the contributions of the proposed Metro transmitters operating at their maximum FCC-licenced capacity. The calculated values of power density are presented as a percent of current Maximum Permissible Exposures [%MPE] as adopted by the Federal Communications Commission [FCC] `,Z, and those established by the Massachusetts Department of Public Health [MDPH] ' (With 100%signifying an acceptable amount). SUMMARY The measured existing ambient RF field levels indicate the maximum to be less than about one-half of one percent of the current State and Federal exposure guidelines. These RF measurements are accurate, and meet both FCC and the MDPH guidelines. Theoretical RF field calculations data for the proposed Metro personal wireless services contributions indicate a maximal potential RF field level at ground level to be less than one-tenth of one percent of the current RF exposure guidelines. This result means that there could be more than 1000 similar additional installations at this location,and still be within Federal and State guidelines for RF exposure. Levels within the building will be much lower. Based the theoretical RF fields I have calculated and measured, it is my expert opinion that this facility would comply with all regulatory guidelines for RF exposure to members of the public with the addition of the Metro personal wireless services antennas. Note:The analyses,conclusions and professional opinions are based upon the precise parameters and conditions of this particular site;70 Elm Street in North Andover, MA. Utilization of these analyses,conclusions and professional opinions for any personal wireless services installation,existing or proposed,other than the aforementioned has not been sanctioned by the author,and therefore should not be accepted as evidence of regulatory compliance. 'w ZD 301. fc-d i dl •.d'eY4{'taEd j T iT' t Et �' {, 4 f 1 N 5 h�•6 N '/i �tl} b f.I'l iY� 9 '�4u 2' 6 y 32 IMIN ' K�✓ - p mg, gm. �.'k }Jd % ✓ 2 m' r� .( rrs'G ''�F of 4^' Wx,�� J r lC.r�'t y., � Y�,.. Y� s Ap.�u�•+^��s+ � ,t'}r P3 s t ^' 3 f6fb5 ' 9 tFNx .'r-"`'�•e • st`-u�4g '� f+�. , .>� ,f� � S t i#Y�". f � N� r „✓ SQA, t r < � "a'F�-c, t:t 3 ifs ,£. '`2� �33 r „! ��2 a 4 ✓ s'�... ��t,� � .,��,x ; l'r ✓.7r+ !'J TfR. ,��.4,a I } ''.'' 11 �, °'� ��4✓Y:. r ris x 3 � `-. 1: 3 v. It f46 �,�'� ���... �� j j �s�L � tl ft .�^'t, .VV�t�.y-� �t n + � �F q`��� y.•. a1 y � If �T✓ "�� D•� � F. f� y. »•q t<� ~3k`,p'''t«I`'`�� sr i-.. � ! �' i r...� �^T*�'rk > � _• f '` a �-- ,��o. itlt �u 71 a c .. Lhr x t ,»�.Y�.r�t�., l �f.B �t � '' ,r •#u� ra»r uanam.rni,Y. xwf,crHj• .._.. .;,,it .., .. .,&�.,:::.�.ii?i.,Qai,s-,.;':�+ t.:•...:.t ..' .4 .=.a f°s.. ��?i-.,.`~ 's a� --�&mx.rx`.7?F�r.,v;.{r n. • 1 b ' ' 1 � 1 1 1 • 1 1 1 1 1 1 1 1 1 "1 • • � • •1 1 1 • 1 • "1 ° • • 1 1 "1 "• . 1 Ms °' 1 • •• of It I 1 1 off 1 1 PERTINENT SECTIONS OF THE ZONING BYLAWS* § 8.9 Wireless Service Facilities (8) Monitoring and Maintenance a)After the facility is in operation,the applicant shall submit to the SPGA,within 90 days of beginning operations and at annual intervals from the date of issuance of the Special Permit,preexistent and current RFR measurements.Such measurements shall be signed and certified by an RF engineer, stating that RER measurements are accurate and are in compliance or why the measurements fail to comply with all applicable FCC Guidelines as specified in Section 8.9(4)(c)(1) RFR Filing Requirements of this Bylaw. The measurements shall be submitted for both the applicant and all co-locators. b) After the.wireless service facility is in operation the applicant shall submit to the SPGA; within 90 days of the issuance of the Special Permit, and at annual intervals from the date of issuance of the Special Permit,preexistent and current measurements of acoustic noise from the wireless service facility. Such measurements shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet the Noise Standards sub-section 6.13.14.5 of this Bylaw c) The applicant and co-applicant or their successor in interest shall maintain the wireless service facility in good condition.Such maintenance shall include,but shall not be limited to,painting, structural integrity of the mount and security barrier and maintenance of the buffer and landscaping. d) Failure to obtain the information required in this subsection 8.9(8) of the Bylaw shall result in a fine of not more than$300 dollars for each offense.Each day that such violation continues shall constitute a separate,offense. * Last Amended July 10,2006 Page 3 of 13 MEASUREMENT PROTOCOL RF field measurements were obtained on November 8, 2008, using accepted scientific procedures." The temperature was 65`F with overcast skies. The measuring equipment included a Narda model SRM-3000 Electromagnetic Radiation Meter/Spectrum Analyzer with model 3AX 75M-3G Broadband Isotropic Probe. The instrumentation can provide a meter read-out in%MPE (percent FCC 1997 Maximum Permissible Exposure)for members of the general public within the frequency band from 75 MHz to 3 GHz. The readings were obtained using the"Safety Analysis"modes. The "Safety Analysis"mode allows the total RF field to be examined within each frequency band licensed by the FCC(88 MHz to 3 GHz)',along with the total of the entire band 75 MHz to 3 GHz. The instrumentation provides a meter read-out in percent FCC 1997 Maximum Permissible Exposure for members of the general public. This "Safety Analysis"mode was used to obtain the total RF field values representing the "preexistent RFR measurements"as outlined in§8.9(8)(a)of the Zoning Bylaw. See results,Table II. The RF field measurements were obtained at various locations around the proposed site (See Figure 2 below). 0 = i Figure 2: Locations of RF.Field Measurements 70 Elm Street in North Andover,MA (Picture courtesy Google EarthTM and may not represent current conditions) Page 4 of 13 RESULTS Table II: Results of RF Field Measurements Representing the"Preexistent RFR Measurements" 70 Elm Street and Surrounding Area,North Andover, MA Location Number Percent Public Maximum Permissible (See Figure 2) Exposure(%MPE)* 1 0.99% 2 1.00% r 3 1.00% 4 1.05% 5 0.96% 6 1.06% 7 1.22% g 1.05% 9 1.09% 10 1.14% *Total,75 MHz-3 GHz:% MPE Members of the Public Page 5 of 13 THEORETICAL RF FIELD CALCULATIONS- GROUND LEVELS These calculations are based on what are called"worst-case"estimates. That is,the estimates assume 100% use of all transmitters simultaneously. Additionally, the calculations make the assumption that the surrounding area is a flat plain. The resultant values are thus conservative in that they over predict actual resultant power densities. ' The calculations are based on the following information: 1. Effective Radiated Power[ERP]. 2. Antenna height(centerline, above ground level [AGL]). 3. Antenna vertical radiation patterns;the source of the negative gain[G]values. "Directional" antennas are designed to focus the RF signal,resulting in"patterns"of signal loss and gain. Antenna vertical radiation patterns display the loss of signal strength relative to the direction of propagation due to elevation angle changes. The gain is expressed as"G E". Note: G is a unitless factor usually expressed in decibels [dB]; where G= 10 For example: for G=3, dB = 10 2; for G=-3, dB = 10 0.5. To determine the magnitude ofthe RF field,the power density[S]from an isotropic RF source is calculated, making use of the power density formula as outlined in FCC's OET Bulletin 65, Edition 97-01 4 S = P • G Where: P-4 Power to antenna(watts) 4 • Tt - R 2 G--► Gain of antenna R—+ Distance(range)from antenna source to point of intersection with the ground(feet) (Height)'+(Horizontal distance)' Since P•G=EIRP(Effective Isotropic Radiated Power)for broadcast antennas,the equation can be presented in the following form: S = EIRP 4 • TZ • R2 In the situation of off-axis power density calculations,apply the negative elevation gain[G E]value from the vertical radiation patterns with the following formula: S = EIRP • GE 4 . 1z • R2 Page 6 of 13 Ground reflections may add in phase with the direct wave,and essentially double the electric field intensity. Because power density is proportional to the square of the electric field, the power density may quadruple,that is, increased by a factor of 4. Since ERP is routinely used,it is necessary to convert ERP into EIRP;this is readily done by multiplying the ERPby the factor of 1.64, which is the gain of a half-wave dipole relative to an isotropic radiator. Therefore, downrange power density estimates can be calculated by using the formula: S = 4 • [ERP • 1.641 • GE = ERP • 1.64 • GE = 0.522 • ERP • GE 4 R2 � • R2 R2 The theoretical power density calculations for the proposed Metro contributions are listed in Table III for each three degree increment of depression angle(90° being straight down at the base of the building,and 0°being straight out from the antenna). The values have been calculated for aheight of six feet above ground level in accordance with regulatory rationale. To calculate the% MPE,use is made of the formula: % MPE= S 100 MPE The theoretical percent Maximum Permissible Exposure calculations for the proposed Metro contributions are also listed in Table III for the same angle and height conditions. The results of the calculations for the proposed Metro personal wireless services contributions are depicted in Figure 3 as plotted against linear distance from the base of the building. Note that in addition to the six foot height, and depicted on the graph for reference only, values have been plotted for a height of 16 feet above ground level for comparison with a typical two-story structure. Note that a logarithmic scale is used to plot the calculated theoretical%MPE values in order to compare with the MPE of 100%,which is so much larger that it would be off the page in a linear plot. From a purely isotopic RF source,the%MPE curve would demonstrate a straight-line on the log-linear plot;as shown at distances beyond about fifteen hundred feet. Within about fifteen hundred feet, the curve is variable due to the application of the vertical radiation patterns. Page 7 of 13 Table III: Theoretical RF Field Calculations for Proposed Metro Contribution Trinitarian Congregational Church, 70 Elm Street in North Andover, MA ERP= 58.62 dBm(-728 Watts maximum,per sector) @ f=2135-2140 MHz Kathrein 742351 Antenna(proposed), Height=80 feet[AGL, to top] General Population MPE= 1000µW/cmZ @ f> 1500 MHz Depression Power Density Percent Angle Gain Distance [R] (11W/cm') MPE (degrees) (dB) (feet) @ 6'AGL @ 6'AGL -90 -27.11 0 0.145 0.015% -87 -28.30 4 0.110 0.011% -84 -28.35 8 0.108 0.011% -81 -28.72 12 0.098 0.010% -78 -28.97 16 0.091 0.009% -75 -30.72 20 0.059 0.006% -72 -37.06 24 0.013 0.001% -69 -35.66 28 0.018 0.002% -66 -32.55 33 0.035 0.00376 -63 -28.28 38 0.088 0.009% -60 -23.07 43 0.276 0.028% -57 -20.13 48 0.510 0.051% -54 -19.79 54 0.513 0.051% -51 -22.55 60 0.251 0.025% -48 -28.65 67 0.056 0.006.% -45 -32.49 74 0.021 0.002% -42 -34.66 82 0.011 0.001% -39 -20.25 91 0.279 0.028% -36 -16.51 102 0.576 0.058% -33 -19.06 114 0.275 0.028% -30 -34.42 128 0.007 0.001% -27 -24.96 145 0.049 0.005% -24 -27.67 166 0.021 0.002% -21 -32.59 193 0.005 0.001% -18 -25.86 228 0.018 0.002% -15 -22.10 276 0.031 0.003% -12 -29.20 348 0.004 0.000% -9 -24.37 467 0.007 0.001% -6 -9.36 704 0.095 0.009% -3 -1.89 1412 0.132 0.0130 0 0 00 <0.001 <0.001% Page 8 of 13 Figure 3: Thew etical N a.Iinntm Percent FIFE- vs.-Distance Including Metro FN-N7,S Contributions 16'AGL 6' AGL 'IVIPE 10,000% : W �, 1.00aQla c� a� a 0.100% a.aal�v4 0 2000 4000 6000 8000 10040 Distance from Base [feet] Page 9 of 13 THEORETICAL RF FIELD CALCULATIONS - WITHIN THE BUILDING, 15 FEET UNDER THE ANTENNAS In addition to intensity losses at angles away from the main beam(90°down),there are losses due to attenuation by building materials. A good approximation of these losses is-10 dB,or a factor of 1/10 (10 0.1). Thus, a modified equation to use would be as follows: S = 4 • [ERP • 1.641 • G(anteana loss) • G(building materials loss) 4 • n • R2 v % MPE = S 100 MPE For the proposed Metro antennas, S = 4 • 1[728 watts • 10(-Z7.11n0) } • 1.06 gW/W) • 10('10110_) 4 • n • [(15 ft)• (30.48 em/ft)]' S = 0.354 µW/cm2 or 0.035 % MPE Or> 2,000 times below the MDPH and FCC exposure guidelines. Page 10 of 13 CONCLUSION The measured existing ambient RF field levels indicate the maximum to around one percent of the current State and Federal exposure guidelines. These RF measurements are accurate,and meet both FCC and the MDPH guidelines. Theoretical RF field calculations data for the proposed Metro personal wireless services contributions indicate a maximal potential RF field level at ground level to be less than one-tenth of one percent of the current RF exposure guidelines. This result means that there could be more than 1000 similar additional installations at this location,and still be within Federal and State guidelines for RF exposure. Levels within the building will-be much lower. The number and duration of calls passing through PWS facilities cannot be accurately predicted. Thus, in order to estimate the highest RF fields possible from operation of these installations,the maximal amount of usage was considered. Even in this so-called"worst-case,"the resultant increase in RF field levels are far below established levels considered safe. Based the theoretical RF fields I have calculated and measured, it is my expert opinion that this facility would comply-with all regulatory guidelines for RF exposure to members of the public with the addition of the AT&T personal wireless services antennas. Feel free to contact me if you have any questions. Sincerely DonaldL. Haes,Jr., D Certified Health Physicist Note:The analyses,conclusions and professional opinions are based upon the precise parameters and conditions of this particular site; 70 Elm Street in North Andover, MA. Utilization of these analyses, conclusions and professional opinions for any personal wireless services installation,existing or proposed,other than the aforementioned has not been sanctioned by the author,and therefore should not be accepted as evidence of regulatory compliance. Page 11 of 13 Donald L. Haes, Jr., A.D., CHP Radiation Safety Specialist MA Radiation Control Program Health Physics Services Provider Registration#65-0017 PO Box 368, Hudson,NH 03051 Voice: 603-303-9959 Fax:603-386-6315 Email: donald_haes_chp@verizon.net STATEMENT OF CERTIFICATION 1. I certify to the best of my knowledge and belief,the statements of fact contained in this report are true and correct. 2. The reported analyses,opinions,and conclusions are limited only by the reported assumptions and limiting conditions, and are personal, unbiased professional analyses, opinions and conclusions. 3. I have no present or prospective interest in the property that is the subject of this report and I have no personal interest or bias with respect to the parties involved. 4. My compensation is not contingent upon the reporting of a predetermined energy level or direction in energy level that favors the cause of the client, the amount of energy level estimate,the attainment of a stipulated result, or the occurrence of a subsequent event. 5. This assignment was not based on a requested minimum environmental energy level or specific power density. 6. My compensation is not contingent on an action or event resulting from the analyses, opinions,or conclusions in,.or the use of, this report. 7. The consultant has accepted this assessment assignment having the knowledge and experience necessary to complete the assignment competently. 8. My analyses,opinions,and conclusions were developed and this report has been prepared,in conformity with the American Board of Health Physics [ABHP] statement of standards of professional responsibility for Certified Health Physicist. November 11, 2008 Donald L. Haes;Jr., .D Date Certified Health Physicist Page 12 of 13 ENDNOTES 1 .Federal Register,Federal Communications Commission Rules;Radiofrequency radiation; environmental effects evaluation guidelines Volume 1,No. 153,41006-41199,August 7, 1996. [47 CFR Part 1; Federal Communications Commission]. 2 . Telecommunications Act of 1996,47 USC; Second Session of the 104!-Congress of the United States of America,January 3, 1996. 3 . 105 CMR 122.000: Massachusetts Department of Public Health,Non-Ionizing Radiation Limits for: The General Public from Non-Occupational Exposure to Electromagnetic Fields, Employees from Occupational Exposure to Electromagnetic Fields, and Exposure from Microwave Ovens. 4 .ANSVIEEE C95.1-1999:American National Standard,Safety levels with respect to human exposure to radiofrequency electromagnetic fields,from 3 KHz to 300 GHz(Updated in 2005). 5.National Council on Radiation Protection and Measurements(NCRP);Biological Effects and Exposure Criteria for Radiofrequency Electromagnetic Fields,NCRP Report 86, 1986. 6. ANSI/IEEE C95.3-2002: American National Standard,Recommended Practice for the Measurement of Potential Electromagnetic Fields-RF and Microwave. 7 . NCRP Report No. 119: National Council on Radiation Protection and Measurements, 1993;A Practical Guide to the Determination of Human Exposure to Radiofrequency Fields. 8 . FCC Licensee Lower Band(MHz) Upper Band(MHz) FM Radio 88 108 Paging 152 159 TV Ch. 7-13 174 216 TV Ch. 14-69 470 806 SMR Transmit 806 821 Private Land Mobile 821 824 Cellular AMPS 824 849 ESMR/Land Mobile 849 869 Cellular AMPS 869 894 Aeronautical Mobile 894 896 Private Land Mobile 896 901 PCS Narrowband 901 902 Land Mobile&Armature(Ham) 902 930 PCS Narrowband 930 931 Paging 931 932 PCS Narrowband 940 941 Public Land Mobile 941 960 PCS Broadband 1,850 1,990 9.Petersen RC and Testagrossa PA:Radio-Frequency Electromagnetic Fields Associated With Cellular- Radio Cell-Site Antennas. Bioelectromagnetics, 13: 527-542; 1992. Page 13 of 13 E COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. And METROPCS, INC. DEFENDANTS AFFIDAVIT OF MICHAEL BAHTIARIAN MICHAEL BAHTIARIAN, first being duly sworn, hereby deposes and says as follows: 1. My name is Michael Bahtiarian. I have personal knowledge of the statements made herein. 2. I am the Vice President of Noise Control Engineering, Inc., an acoustical engineering and consulting firm that specializes in noise and vibration measurement& control for marine, industrial and commercial applications. 3. I hold a B.S. degree in Mechanical Engineering from Penn State University and a M.S. degree in Mechanical Engineering from Rensselaer Polytechnic Institute. I am a member of the American Society of Mechanical Engineers,the Acoustical Society of America and am a past president of the Boston Chapter of the Institute of Environmental Sciences and Technology. I am a Board-certified member of the Institute of Noise Control Engineering. 4. My specialty field of work is in noise control treatment and design, and field testing to measure and predict various types of noise levels. 5. On or about October of 2008, Noise Control Engineering, Inc. was retained by Hudson Design Group, LLC, on behalf of MetroPCS Massachusetts LLC,to perform a site evaluation for a proposed MetroPCS wireless facility to be located within the Trinitarian Congregational Church at 70 Elm Street,North Andover, MA. 6. A description of my methodology and the results of my analysis are contained in a Noise Study dated November 17, 2008, addressed to Andrew Tsikanovsky, Senior Project Manager for Hudson Design Group, and identified as "MetroPCS Antenna Site Noise Evaluation BOS0380C Trinitarian Congregational Church 70 Elm Street,North Andover, 01845" (the"Report"). 7. The noise study was conducted in accordance with accepted and usual acoustical engineering standards and procedures. 8. A true and accurate copy of the Report is attached hereto. Signed under the pains and penalties of perjury this first day of July, Y09. /Xichaelhtiarian, INCE Bd. Cert. 2 Noise Control 799 MIDDLESEX TNPK. BILLERICA MA 01821-3821-3 445 PHONE: 978-670-5339 Engineering, Inc. FAX: 978-667-7047 E-mail: nonoise@noise-control.com NOISE STUDY TO: Andrey Tsikanovsky,Senior Project Manager COMPANY Hudson Design Group,LLC FROM: Michael Bahtiarian (mikeb( noise-control.com) Andrew Patterson (drew@noise-control.com.) DATE: November 17,2008 SUBJECT: MetroPCS Antenna Site Noise Evaluation BOS0380C Trinitarian Congregational Church 70 Elm Street,North Andover,01845 INTRODUCTION Noise Control Engineering(NCE)has been retained by the Hudson Design Group to perform a site evaluation for a proposed MetroPCS Antenna Site. The proposed equipment is to be located in the basement of the church at 70 Elm Street in North Andover,MA. The proposed equipment consists of various MetroPCS equipment including: a Modeell cabinet, a Galaxy Power cabinet , and an indoor battery cabinet, as shown on Hudson Design Group drawing BOS0380C FINAL ZD REV2 10-27-08,reference[1]. BACKGROUND NOISE SURVEY NCE perfonned a background noise survey at the subject building. The position was located near the entrance to the building, on the north side, as shown in Figure 1. Noise measurements were taken continuously from the afternoon of November 10th to the afternoon of November 13th', with overall results for the three full days measured given in Table 1. The levels are given in A-weighted decibels Ldn, a logarithmic scale accounting for greater sensitivity at night. TABLE 1: Summary of Background Noise Data. All values in dB A ,Ldn. Date' dB A,lAn 11/10/2008 61.8 11/11/2008 62.5 11/12/2008 58.6 MetroPCS Evaluation 70 ELM North Andover,MA doc Noise Control November 16,2008 Engineering, Inc. NOISE LIMIT The "Zoning Bylaw" for the Town of North Andover, Section 8.9 "Wireless Service Facilities", reference [2] states that "Ground-mounted equipment for wireless service facilities shall not generate acoustic noise in excess of 50 dB at the security barrier." The ordinance also requires a measurement of existing noise levels and a prediction of the noise levels with equipment installed in Ldn', but puts no limits on the allowable increase. NOISE EVALUATION; RESULTS NCE used measured noise data from the manufacturer of the wireless equipment cabinets given in reference [3]. Sound Pressure Levels (SPL)was measured at a distance of 5 feet as given in Table 2. TABLE 2: Wireless Equipment Source Sound Pressure Levels SPL at 5 feet. Cabinet Axes Front Right Back Left Measured SPL @ 5@,dB(A) 59 60 65 61 Because the equipment will be housed in the basement of the church, NCE had to take into account the sound transmission through the church's exterior wall. The computation used the maximum of the four sides SPL given in Table 2, 65 dB(A)as the reverberant SPL inside the church building. The sound levels at the property line were computed by applying three factors: (1) transmission loss of the building wall, (2) radiating surface area factor and (3) distance factor. For the transmission loss of the wall,NCE used measured values from reference[4]which is for a 2x4" stud and plywood wall without any fiberglass insulation (TLA-00-023a). NCE inspected the building and we do not believe the void space is insulated. The radiating surface area factor is the area of the room housing the Modcell equipment that is also open to the exterior. The North face was determined to be 6x6 feet(36 square feet)and the West face was determined to be 10x6 feet (60 square feet). The subject room does not have South or East facing facades. It was assumed conservatively, that North side also radiated to the East and the West side also radiated to the South. The distance factor was spherical spreading (20x1ogR)which accounts for sound dissipation(spreading)with distance. All computations were performed in octave bands as given in Appendix A. NCE assumed a 5 dB/octave slope to determine octave bands based on the overall 65 dB(A) from the back side of the equipment. Table 3 summarizes the computation results. Figure 1 shows the locations of the north,south,east and west locations for the calculated noise levels. Day-Night Average Sound Level(DNL or Ldn)which includes 10 decibel penalty for sounds during night periods(10pm to 7am). Page 2 Noise Control November 16,2008 Engineering, Inc. TABLE 3: Calculated SPL at the Pro e Line of 72 Elm Street Direction from Sound Source West East I North South Measured Sound SPL inside Enclosure 65 Radiating Area(square feet 60 36 36 60 Horizontal Distance to Property Line,feet 199 77 95 71 Calculated SPL @ Property Line,dB(A) 8 8 6 8 Limit,dB(A) 50 For the Ldn prediction, the calculated noise levels were then added to the minimum Ldn determined during the noise survey. Table 4 summarizes the results. Although the Town of North Andover imposes no criteria, the Federal Aviation Administration (FAA) considers an increase of 1.5 dB to be significant. TABLE 4: Calculated Ldn at the Base of 70 East St. in dB Direction from Sound Source West East North South Calculated SPL PropeM Line,dB(A) 8 8 6 8 Measured Ldn before Project,dB(A) 59 Calculated Ldn After Project,dB(A) 59 59 1 59 59 Ldn Increase Over Backgrotind 0.0 0.0 0.0 0.0 CONCLUSION The proposed cellular equipment to be installed in the basement of 70 Elm Street in North Andover, Massachusetts will comply with the requirements of the Zoning By-Law for the Town of North Andover. It also has no impact on Day-Night Average Sound Levels, Ldn. Given the very low computed sound level of 6-8 dB(A),NCE can state the equipment will be completely inaudible from the Church property line. REFERENCES(All documents attached except[41) 1. Hudson Design Group drawing, `BOS0380C FINAL ZD REV2 10-27-08" drawing numbers C-1,Z-1,Z-2,Revision 2,dated October 27,2008. 2. Town of North Andover Massachusetts Zoning Bylaws, Section 8.9 "Wireless Service Facilities", Subsection 5 "Design Standards", page 99, Revised July 10,2006. 3. Lucent Technologies Letter, "Modcell 4.0/4.013 Outdoor Macrocell: Distance Based Noise Attenuation',dated April 28, 2006. 4. Bradley, J.S.. and Birta, J.A. "Laboratory Measurements of the Sound Insulation of Building Fagade Elements". Institute for Research in Construction, October 2002. 0 Page 3 Noise Control November 16,zoos Engineering, Inc. FIGURE 1: Back round noise monitoring location and noise calculation locations. PROPOSM MORON* ! tASE�r�.y�t( +.lY�LY�IyI: WOM 42z ��.. c N 70 ELM RM- OF K M wF Ot .MfR.'�1YYii: TWO PERKY T1'P.) y ` r r' 42 RTaw'Fr 4,2-tl ' MS. > .. Pm Una Bad protlwl Naisp,R!(5rdfatirg pa n ar M"OpCB FWOT eni Locatw Notse Celalladon loca54c.PAY W+e Reviewed and Approved Br. Michael SahtiariaN INCE Bd,Cert Board.Certified R Wusftw BVineer by the.Insdue of Noise Co trd&qk*mg(w iweusv org) • Page 4 Noise Control November 16,2008 Engineering, Inc. APPENDIX OUTDOOR-TO-INDOOR SOUND COMPUTATIONS 0 Page 5 Noise Control November 16,2008 Engineering, Inc. PROJECT: MetroPCS Installation,Trinitarlan Church CLIENT: Hudson Design Group LOCATION: North Andover,MA DATE: November 16,2996 BASELINE NOISE PREDICTION A Weighting •39,4 -26.2 -16.1 -8.6 -3.2 0 1.2 1 •1.1 _ NORTH TRANSMISSION THROUGH FRONT WALL Length cf Wati 6 R Height of Wen 6 6 .Area(Aw)of Entire Sldewwn 36 sq.8. Clarence to Receiver(R) 95 R Oa.aiptlen 313 63 126 250 500 1000 2000 4000 6000 dB(A) Notes Equipment ull Operation SPL 83 76 73 66 63 56 53 48 41 65 From Modcell Data Sheei 10 x LOO(Aw)•18 0 20 x LOG(R)+2 42 Wen Tratrsmhsion Less 10 12 14 16 22 27 26 27 29 Enter source of Info here Received SPL Outside @ 128 feet 31 24 17 10 •1 •1t •16 -21 - -28 6 A-Weighted Lp Level -8 -2 1 1 -4 •11 •14 -20 -29 SOUTH TRANSMISSION THROUGH SIDE WALL Length of wan 10 R Height of Wan 6 R Ares(Avq Roof 60 sq.ft. Distance to Receiver(R) 71 R Decal tion 313 63 125 250 Soo 1000 2000 4000 6000 d8(A) Notes ottle Cruaher Full Operation SPL 83 s 73 68 63 58 53 48 43 65 From vendor data sheet 10 x LOG(Aw)-16 2 20 x LOO(R)+2 42 Metal Blda Transmission Lost 10 12 14 16 22 27 26 27 29 Enter source of Info here Received SPL Outside @ 126 feet 13 26 19 12 1 -9 -13 -19 -26 a A-Weighted -6 0 3 4 -2 -9 •12 -18 -27 EAST TRANSMISSION THROUGH FRONT WALL Length of Wag6 R Height of Walt 6 R Area(Aw)Roof 36 sq.R. Distance to Receiver(R) 77 R Dow 1ptlon313 63 125 250 500 1000 2000 4000 a000 dB(A) Notes Bottle her Full Operation SPL 63 78 73 68 63 58 53 48 43 .65 From vendor data sheet 10 x LOO(Aw)-16 2 20 x LOG(R)+2 42 Metal Bldo Transmission Loss 10 12 14 16 22 27 26 27 29 Enter source of Info here Received SPL Outside @ 126 feet '33 26 19 12 1 •9 -13 -19 -26 8 A•Weighted -6 0 3 4 -2 -9 •12 •1a •27 WEST TRANSMISSION THROUGH SIDE WALL Length of Wen 10 R Height of Well 6 D Area(Av4 Roof 80 sq,fl. Distance to Reeelver(R) 199 6 Desen_ptlon 313 63 125 250 500 1000 2000 4000 8000 dB(A) Note. Soule Crusher Full Operation SPL 83 78 73 68 63 58 51 48 43 65 From vendor data sheet 10 x LOO(Aw)-16 2 20 x LOG(R)+2 42 M121 BWO Traromlesion Loa. 10 12 14 16 22 27 26 27 29 Enter source of Info here Received SPL Outside @ 126 feet 33 26 19 12 1 .11•11 •19 -26 8 A-Weighted -6 0 3 4 •2 -9 -12 -18 17 • Page 6 Lucent Technologies Bell Labs Innovations 0 Memo Subject:Modcell 4.0/4.OB Outdoor Macrocell: date: 4/28/06 Distance Based Noise Attenuation from: Loren Holihan CDMA Product Management WH 3A-331 Voice:973 386-4783 holihan@lucent.com The following memo is intended to provide information pertaining to distance based noise attenuation for the Modcell 4.0/4.OB Outdoor Macrocell. General notes: 1. Conservative calculation: Drop 3dBA each time the distance doubles. 2. At some point (distance) away from the noise source the attenuation goes up to 6 dBA. However, for the table below the 3dBA attenuation was used to provide conservative data. 3. Currently the point at which the attenuation goes up to 6 dBA is unknown due to the need for testing to verify. But at 30 to 40 feet the noise level would not be materially different from the numbers presented below. Attenuation Table CABINET MEASURED Calculated Calculated Calculated AXIS NOISE (dBA) Noise (dBA) Noise (dBA) Noise (dBA) at a distance at a at a at a of 5 ft distance of distance of distance of 10 ft 20 ft 40 ft FRONT 59 56 53 50 RIGHT 60 57 54 51 BACK 65 62 59 56 LEFT 61 58 55 52 Intermediate distance calculations: At a distance of 30 ft, front = 53 dBA, right = 53 dBA, back = 57 dBA and left 52 dBA. At a distance of 50 ft, front = 50 dBA, right = 50 dBA, back = 54 dBA and left = 49 dBA. If additional information is needed please contact: Loren Holihan Modcell 4.08 NPI Mobility Product Management (973) 386-4783 Phone (973)386-6427 Fax (973)713-6843 Cell F COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. And METROPCS, INC. DEFENDANTS AFFIDAVIT OF WILLIAM J. PASTUSZEK,JR. WILLIAM J. PASTUSZEK, JR., first being duly sworn, hereby deposes and says as follows: 1. My name is William J. Pastuszek, Jr. I live and work in Newton, Massachusetts. I have personal knowledge of the statements made herein. 2. I have been appraising residential and commercial real estate for 30 years. I am a certified licensed real estate appraiser in Massachusetts. I have been so licensed for seventeen years. I am a designated member of the Appraisal Institute (MAI, SRA designations), the Massachusetts Board of Real Estate Appraisers (MRA) and a Senior Member(ASA) of the American Society of Appraisers. 3. I served as a Board member of the Commonwealth of Massachusetts Board of Registration of Real Estate Appraisers from 1996-2005 and served as the Board's Chairman from 1998 to 2005. A true and accurate copy of my curriculum vitae is attached to this affidavit. 4. 1 am currently employed as a real estate valuation consultant for Shepherd Associates, a real estate appraising and consulting firm with an office in Newton, Massachusetts. 5. One of my specialty areas of practice in the field is the analysis of the effect of wireless telecommunications facilities on various forms of real estate in the vicinity of such facilities, particularly residential properties. During the course of the past twelve years, I estimate that I have conducted approximately fifty such studies. 6. In or about February of 2009, I undertook a comparative real estate valuation analysis at the request of MetroPCS of Massachusetts LLC for the purpose of evaluating the likely effect on area residential real estate values of a proposed wireless telecommunications installation within a church steeple located on the property at 70 Elm Street, North Andover, Massachusetts. 7. I conducted my study in conformance with the accepted and usual standards and procedures of the professional real estate appraisal industry as recognized by the Society of Real Estate Appraisers, the Appraisal Institute and the Massachusetts Board of Real Estate Appraisers. 8. A description of my methodology and the results of my analysis are contained in a "Site Specific Cellular Communications Installation Analysis" (the"Report") which was submitted to the North Andover Planning Board during the conduct of its public hearing on MetroPCS's application for zoning relief that is the subject of this litigation. It is the conclusion of my analysis that the internal church steeple installation at 70 Elm Street in North Andover will have no impact upon the values of residential properties located in proximity to the church. 9. A true and accurate copy of the Report is attached to this affidavit. Signed under the pains and penalties of perjury this 15thday of July, 2009. William J. Pastuszek, Jr. 2 eosa�K(-- Site Specific Cellular Communications Installation Analysis Concerning: 70 Elm Street North Andover,Massachusetts 01845 Effective Date February 10,2009 William J.Pastuszel,Jr.,MAI,SRA,MRA Shepherd Associates Shepherd Associates Real Estate Appraisal& Consulting Services February 17,2009 Kate Rugman Boston Market MetroPCS 285 Billerica Road,Yd Floor Chelmsford,Massachusetts 01824 Attention:Bill McQuade RE: North Andover Proposed Fully Enclosed Communications Antenna Location: 70 Elm Street North Andover,Massachusetts 01845 Owners:' Trinitarian Congregational Church Deed Reference: Essex County Registry of Deeds Assessors ID: Map 42-Block 2 Date of Inspection: February 12,2009 Dear Mr.McQuade&Ms.Rugman: The following summarizes my findings relating to the subject site. Based on information provided to me,MetroPCS proposes to construct a telecommunications antenna on the referenced site,referred to as the site. The proposed structure consists of a completely enclosed antenna located within a church steeple.The proposed installation is designed to provide and enhance,personal communications services in the area. Equipment would be within the building. The installation will be unlit,unmanned and generate no traffic,and will require infrequent visits for routine maintenance.The site would be entered and exited from existing access to the property. Power will be provided by existing lines.No water and sanitary disposal access will be required by the proposed project. The following consists of my study and findings. 199 WELLS AVENUE, SUITE 201-NEWTON,MASSACHusErrs 02459 (617)928-1778-FAx 558-0057-E-MAIL:SHEPHEMW C@1 YAHOO.COM 3 i Pertinent Characteristics. re,, Communty', Community: North Andover is a community located in northeastern Massachusetts. The municipality is bordered by Boxford to the east, Andover and Lawrence to the west,Methuen and Haverhill to the north,and Middleton and North Reading to the south. North Andover is 24 miles north of Boston, 12 miles east of Lowell,33 miles south of Manchester,NH,and 243 miles north from New York City. Land Area: 26.6 sq.miles Density: 1,058 persons per square mile Form of Government: Board of Selectmen,Town Manager,Open Town Meeting Year Incorporated: As a town: 1855 Major Community Routes: Principal highways include Interstate Route 495 and State Routes 114, 125,and 133. Demographic Data. Population information is summarized as follows. ws .:.:.i...,.... .\t .:......... .:::::::::I....r!i:::::: .":':::. Y,:.::t ....,N .:r �:•,4: PJM: .1! ilii { 1. u ... .......... r.............. '::,,........ f��g �....,...::.:: Po uldtto .. Gensu : ov :U<' . ... .............t,..,......;::...,.' �'. ..........,. .L..::::... ,. ...... =Sa....Ja`.i€E!::t i;.»:JJw{'.G!ii€ '1 Year Population %Change 2000 27,202 --- 2007 27,637 1.60% ..-tx...e....::::.;-t•gp'r. ::°v!-ii!j!Yt!" .-. ..gMtY'.. ;"� � .� :: ........... ::........d..r.�...... ..,r:. 3C0....'' SidPi 000-'3.; ZVI7 t^: s �vv ;. i'eti!t•.,::::::.. .. Median Household Income $93,073 Per Capita Income $40,024 Median Family income $113,796 ............ Une gip.�o ttt.y ............... U.S. 7.2% Massachusetts 6.9% Essex County 6.9% North Andover 5.5% Unemployment and labor force characteristics are competitive with other similar communities. Unemployment tends to be higher in these outlying rural locales than in communities closer to major cities and transportation and employment centers. 4 Housing Characteristics.The housing stock is a mixture of I -4 family dwellings.Ages and housing styles vary widely. Real Estate Activity. In terms of real estate activity,the boom real estate market of 2003-2005 has subsided.The following summarizes market activity over the recent past. .. ........ Move A G I:Mw Year Price-SF #Sales-SF Price- #Sales- Condominiums Condominiums 2008 $500,000 185 $208,000 145 2007 $476,200 240 $185,000 191 2006 $513,750 284 $262,900 261 2005 $565,000 259 $239,500 131 2004 $520,000 303 $225,000 1 200 Data f6r all transactions between$25,000 and$1,000,000. Condominium sales and prices are included. The national And regional housing downturn continues.Low interest rates can be considered a positive factor,but access to credit is difficult. Summary:Positive factors include good employment access,a well developed transportation network, .and access to the area's cultural,recreational,.and educational amenities. Negative factors include high housing and living costs,and a recessionary environment. Neighborhood The mixed use.neighborhood is'located within the town center in the approximate northwestern section of the community. State Routes 114, 125& 133 are main state routes in the Town. Interstate 1-495 is located to the west. General boundaries consist of the Lawrence Municipal Airport and the Merrimack-River to the north,I- 495 to the west several reservations and Lake Cochichewick to the east,and Massachusetts Avenue to the south.The specific neighborhood is bounded by commercial uses along Water Street which are located within 1200 yards of the subject,Waverley Road to the west,Main Street to the south,and Routes 125& 133 to the east. The subject neighborhood is a fully built up,urbanized area containing a mixture of uses.These include single family homes,multi-unit dwellings,condominiums,apartment buildings,and commercial uses, including office and retail/service establishments. Religious,institutional and commercial uses are located within the neighborhood. Dwellings in the neighborhood are mostly of wood frame construction and are a mixture of ages and styles.Lot sizes are consistent with the buildup of the area.Many of the homes were built in the 19"' Century,according to assessing records. 5 The topography consists of typical variations with no atypical,adverse,or detrimental topographical features. No adverse influences are evident. Site.The 45,600 SF site(per zoning drawings)contains the church building in which the proposed installation is to be located on the west side of Elm Street.It has a typical shape and a generally level topography. The site is at the corner of Elm and Cross Streets.Church Street is to the west and Water Street is to the north.The portion of the site where the tower is to be located is located at the east edge of the site. The subject property-The Trinitarian Congregational Church-consists of a wood frame structure built c. 1915.It is currently used as a church and school.Access into the site is by way of a driveway. The zoning is in a residential district-Residence 4.The site exceeds frontage and lot area requirements. Based on information provided,the proposed installation meets relevant setback requirements. The parcel is not located in a flood zone and there are no significant wetlands resources. It is assumed .that all regulations will be complied with in the construction and operation of the subject facility. Subject Antenna Characteristics.According to provided drawings,the proposed antenna will be located within the church steeple,Le.,bell tower.The installation will be fully enclosed and not visible from the street. Related equipment will be located within the church building. 'The antenna will consist of a single 51.5"x 11.75"x 2.75"panel with downtilt bracket and pipe clamps. A fiberglass louver painted to match existing colors is proposed. A lease area of 68"x 12'10"under the stairs consisting of±86 SF,according to the zoning drawings provided,will house related equipment. Additional conduittwiring runs within the structure. Equipment cabinets(3:indoor,power,and battery cabinets)are to be located within the church structure.Based on information provided to me,the installation will generate minimal noise. Access is along existing roadways. No additional construction is necessary to provide for access.Once operational,infrequent visits for repairs or inspections will be required. According to the information provided,the spire is+-150'. The single antenna installation will be at 4-80' high.The steeple is a pre-existing structure. My analyses and conclusions follow. 6 Analysis.I have reviewed the proposed project in detail and have made a personal inspection of the site.I also visited the surrounding neighborhood and competitive sites. A number of sites within the subject's market area were examined.I concluded there was sufficient data within the subject's area from which meaningful conclusions could be drawn. With the information collected,I was able to form an opinion with respect to the effect on real estate values on the subject area. Analysis Methodology. Analysts typically employ a comparative process.in establishing whether home sales are affected by the presence of communications towers.Data from home sales with proximity to telecommunications towers is collected and compared with data from sales from competitive locations within the same market without proximity to telecommunications towers. With smaller data samples,smaller sets of data or individual sales can be compared to establish if clear patterns emerge which show any effect on sales prices from homes with proximity to telecommunications towers compared to those without such proximity. It is also appropriate to consider days on market comparing properties with telecommunications tower influence and those without.Differences in marketing times between the two groups can help establish if there is an effect on the length of time it takes to sell a home based on proximity to a telecommunications facility. Further,analysts can consider listing activity.Areas where detrimental conditions exist often experience higher listing activity and longer marketing times.Analysis can determine whether the higher listing activity and extended marketing time are due to the presence of a telecommunications facility. Finally,inspection of the neighborhood can uncover other factors that contribute to home values.Areas with detrimental conditions often tend to experience higher and more persistent vacancy and lower levels of upkeep and maintenance.In the case of telecommunications facilities,it is appropriate to examine neighborhoods in which antennas are located to uncover patterns of neglect or higher than normal vacancy. My analyses and conclusions follow. 7 Analysis of Competitive Facilities. I have reviewed the proposed project in detail and have made a personal.inspection of the site.I also visited the surrounding neighborhood and competitive sites. From a review of competitive sites,several sites within the subject's market area were examined in detail as found below.There is sufficient data within the subject area from which meaningful conclusions could be drawn.My study follows. Study of Competitive Antenna Locations.The analyst searched for towers within the subject's market area in order to understand what types of towers are typically built in this environment.Consideration was given to the study of towers near or within residential areas. As the subject area is not close to major highways,but locations within the Town are,towers along these highways and not near residential areas are not considered since their location characteristics are not similar to those of the subject. The following summary and analysis represent towers that are reasonably comparable to the proposed facility and is not meant to be all inclusive.The source for the data includes the appraiser's files, applicable public records,client information,FCC databases and www.antennasearch.com.According to Antenna Search,there are nearly 40 towers and many more antennas located within 40 miles.of the subject site.Communications towers are not unusual for this market area. The following data consists of locations of antennas on or within church steeples.These have been studied as they are most similar to the proposed subject installation.The location are considered competitive with the subject location.Sales data over the past year was considered most reflective of the current market and was analyzed.With the information collected,I was able to form an opinion with respect to the effect on real estate values in the subject area. My analysis and conclusions follow. 8 Location,:. ,sow Je o n� _ :- ..': _... . .. .::. :..: .. .:_-+...• ::: ... ,,.. .:'.::. :].�.:iY - .rte i i- �•.;_ J�. .. .i. ... .. ;..., ,..:n+..... a_ .._ ...... :.':::.:'_..:: _ - _ . T�..'S�.:fi Iff.-'x i�rtl�.P _il'."I• _ _ S 70 Elm Proposed Fully Trinitarian . Street, enclosed steeple Congre- North antenna:not visible gational Andover from the street Church MA Steeple A 127 Fully enclosed West Competitive Residential location.Mostly older homes. Reservation steeple antenna:not Parish -abutting Road, visible from the Church community No unusual listings or vacancy trends noted.Days on market fall within normal Andover street patterns for the area.No unusual trends toward absentee ownership. MA B 586 Massa- Multiple enclosed First Residential Residential location.School nearby, chusetts antennas in steeple: Calvary location Avenue, not visible from the Baptist near School Two sales of colonial homes took place within the church's immediate vicinity. No. street. Church Based on comparison with other sales of colonials in the town,these properties sold Andover for prices that fall above the median and average prices of 44 sales considered.Days MA on market for these sales fell at the lower end of the range of the comparable data.A discussion with a broker involved with one of the sales indicated that the presence of the antennas played no part in the listing or sale of the homes. Based on this analysis,the presence of these fully enclosed multiple antennas has had no effect on home prices in this location. 9 Location Facili" :.. ;:.Na»re:.....:: ,Com arison _....- _- �1m actf r ; if.: o_06064;4.F '` p> _ -_ - r�. - ... :. ... . _s..._ x_ - ._...... .._. - '•a<,..._. "'`_:fes - - ,�.. 4 C 10 Church Enclosed steeple First Competitive Primarily residential area on a well traveled street.Mostly older homes. Street antenna:not visible Church of location. Haverhill from the street. Christ A review of real estate activity indicates no measurable impact from the presence of (Bradford) Existing T-Mobile the antennas. MA antenna with more recent equipment No unusual sales or listing activity.A review of listings of victorian era homes installed in the past indicates three listings within 1/10 mile of the installation out of 8 properties year.Steeple height: currently listed.The listings fall within the parameters established by the data in +-135' with terms of listing price and days on market.They are not clustered at the lower end of equipment mounted the range nor have they been listed for atypically long period of time.The limited @+-100'. sales data available indicate no difference in prices paid between a home in close proximity to the installation and one further from the installation. No excessive vacancy or lack of maintenance noted.Prices in area do not reflect any out of the ordinary trend when compared with competitive locations. 10 Location Facilfry Name...::€._Coinpa6# Impact _ to Stib}ect , t My� D 54 Lincoln Steeple antennas: Newton Competitive Newton Highlands location:mixed area with commercial uses.Mostly older Street, visible from the Congre- location. Victorian era single family homes with some multi-family dwellings and Newton MA street and within the gational condominiums. . neighborhood. Church There are two other comer of No atypical listing activity noted.No unusual vacancies or patterns of non-owner antennas on the Lincoln occupancy.Sales activity and pricing falls within the range of competitive areas property,according Street within Newton. to a representative at the Church,which A sale of a victorian dwelling at 39 Chester Street took place in September 2008 for have been $1,560,000,according to MLS records.The home is located with 1/10 mile of the operational for a antenna.A comparison of the sales price/SF($453)with 18 similar properties number of years. indicates that the price paid exceeds the median and average sales prices competitive properties and that the DOM is significantly lower than those of competitive properties. Two condominium units at 72 Lincoln Street-in very close proximity to the antenna -sold for$365&$484 PSF.Analysis of 78 similar Newton condominium sales in NILS indicates that these units sold for more than the average and median prices of the data surveyed.The average days on market for this data set- 109-is well above the days on market for these two units. Based on the preceding observations,no effect on residential price is noticeable. This antenna,since it is not enclosed,but located on the top of the steeple is more visually prominent than the proposed installation. 11 Location " Faczhry'; Name sCompar'ison � 7mpzzct, ro „rte :. Szzb�ect Y E 474 Centre Enclosed antenna Eliot Street Urban Located in a mixed use area within Newton Corner,with a concentration of older 1 - Street Church location. 4 family dwellings.A school is located nearby. Newton MA Commercial /residential/ No unusual listing of sales activity or preponderance of non-owner occupied homes multi- was noted. Homes sell for prices within the general range of prices for comparable family uses. homes elsewhere in the community.No effect,on prices or residential real estate activity is apparent. A victorian style two family dwelling located at 126 Church Street sold for$575,000 in September 2008.The price paid and days on market(27)fall well within competitive two family sales with similar physical and location differences, indicated that there is no measurable effect on prices. i 12 Additional Data Considered.Other locations considered include an enclosed steeple installation located at 255 Grapevine Road,Wenham MA at Gordon College and a steeple installation at 217 Main Street, Haverhill.These were not sufficiently similar to include as direct comparisons but are nonetheless supportive as additional instances of such installations. Discussion. The appraiser searched for instances of antenna locations within church steeples throughout eastern Massachusetts. The results of the search indicated that this type of installation is common. The specific locations noted consist of installations that have no visibility from the street.Unlike cellular towers,which are visible,these installations have no visual impact. An analysis of real estate activity at competitive locations indicates there is no undesirable impact on residential prices in those locations. Based on this analysis,no measurable impact is likely at the subject location. Further,the subject contains a mixture of I -4 family dwellings,apartments,institutional/educational,and commercial uses. In a mixed use area,a visible antenna structure is not unusual;a structure that is not visible has no significant effect since it has no visual impact. The client notes that the facility,once constructed,generates only infrequent traffic and poses no burden on Town services. A supplied noise impact study indicates that the facility would not create significant noise. No unusual activity was noted in these areas which would suggest that the presence of the towers have a negative effect on housing in either case.Unusual activity would include trends such as abnormal MLS listings of homes for sale,sub standard maintenance,inharmonious uses,a higher than normal degree of absentee ownership,or excessive vacancy. Unlike freestanding cellular towers,which are clearly visible to passers by and,as a results,are visually and aesthetically intrusive in many environments,these enclosed installations have no visual impact,as they are not seen from the street or from nearby properties.This would also be the case for the subject. The one exception is Location D,where a tower is mounted on the top of the steeple and is visible throughout the neighborhood.Even in this worst case instance,no measurable negative effect resulted. i i 13 Conclusion. In arriving at my conclusion,I have taken into consideration my inspection of the subject site and neighborhood,of comparable sites,and my detailed review of the proposed project.I have also considered that the enclosed installation is not visible to surrounding homes and the results of a supplied noise impact study,indicating that the proposed facility would do not create significant additions to the noise levels in the neighborhood.I also have assumed,based on information provided by the client and my experience with other sites,that the facility,once constructed,will generate only infrequent traffic and would pose no burden on town services. Based on my findings,it is my professional opinion that the construction and operation of the project will not have any adverse effect upon the property values of residential real estate located near the site. This consulting report is written to conform to the Uniform Standards of Professional Appraisal Practice (USPAP),as promulgated by the Appraisal Foundation,to the extent they apply,and with the supplemental standards of the Appraisal Institute. The consultant certifies that: 1)The statements of fact contained in this report are true and correct.2)The reported analyses,opinions,and conclusions are limited only by the reported assumptions and limiting conditions,and are the personal,unbiased professional analyses,opinions,and conclusions of the consultant. 3)The consultant has no present or prospective interest in the property that is the subject of this report,and the consultant has no personal interest or bias with respect to the parties involved.4)The consultants compensation is not contingent upon an action or event resulting from the analyses,opinions, or conclusions in,or the use of,this report. 5)This assignment is not based on a requested minimum valu- ation,a specific valuation,or the approval of a loan.6)The consultant has inspected the subject site.7) Analyses,opinions,and conclusions were developed,and this report has been prepared,in conformity with the Uniform Standards of Professional Appraisal Practice.8)no one provided significant professional assistance to the person signing this report,9)the use of this report is subject.to the requirements of the Appraisal Institute and other appraisal organizations with which the consultant is affiliated relating to review by its duly authorized representatives. My qualifications follow.Please contact me if I can be of further assistance. Respectfully submitted, William J.Pastuszek,Jr.,MAI,SRA,MRA Massachusetts Certified General Real Estate Appraiser#10 WJP:b encls. ASSUMPTIONSAND LIMITING CONDITIONS:The report's certification is subject to the following conditions and to such other specific and limiting conditions as may be set forth in the report. 1. The consultant assumes no responsibility for matters of a legal nature affecting the properties considered or the title thereto,nor does the consultant render any opinion as to the title,which is assumed to be good and marketable. 2. The consultant is not required to give testimony or appear in court because of having performed the consulting assignment with reference to the property in question,unless arrangements have been previously made. 3. The consultant assumes that there are no hidden or unapparent conditions of the property,subsoil, or structures,which would render it more or less valuable. The consultant assumes no responsibility for such conditions,or for engineering which might be required to discover such factors. 4. Information,estimates,and opinions furnished to the consultant,and contained in the report,were obtained from sources considered reliable and believed to be true and correct. However,no responsibility for the accuracy of such items furnished to the consultant can be assumed by the consultant. 5. Disclosure of the contents of this consulting report is governed by the Bylaws and Regulations of the professional appraisal organizations with which the consultant is affiliated. 6. This consulting report has been prepared for the exclusive benefit,of the client specified. It may not be used or relied upon by any other party. Any parties using or relying upon any information in this report do so at their own risk. Possession of this report,or a copy thereof,does not carry with it the right of publication. It may not be used for any purpose by any person other than the party to whom it is addressed without the written consent of the consultant,and in any event only with the properly written qualification and only in its entirety. Neither all,nor any part of the content of the report,or copy thereof(including conclusions as to the property value,the identity of the consultants,professional designations,reference to any professional appraisal organizations,or the firm with which the consultant is connected),shall be used for any purposes by anyone but the client specified in the report. 7. The analyses and conclusions contained herein are meant for review by persons knowledgeable in the particular real estate valuation techniques and analyses set forth. 8. The data and conclusions contained herewith specifically relate to the locations in question and for the effective date.Conclusions drawn by others with respect to the relevance of this data to other locations and under other market conditions are done at their own risk. i 1 i SUPPLEMENTARY DATA SECTION Location Map Pit �: ''moi/:(�V�:�]U_�.:�/�%' /.�` •`\�`',:�,�• "3a � r� � ��/' 'i�i'h� L.y' �jQ'_..t +� nnQa�W G`��� ✓✓✓ ����'' ���� �,�'/ s rtCej7Hl scip2l: � � _-�:y. 1� � �{7 a r f a /:'� �. �"\ .�'S1' S `/ �� •' 3.sj� ': 't r ,.�F NSw� 30 �`OCn: ;Civ 0(.j �: �S'• .g .. fi � k ' i�. ,� ,y_f- ..j. - tr '�'• �� !n Cr/ri ? 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I +>•r. `, des:/c4• �°I Yb�w t p� .;��'' 0 all e of• —'y 1 r'E�.°��a� N ZmetroPCS. Untimit YovreelL me P CI -S, Z403MAMMA ROAD *. o chnmVm.MA OOt tt2a Unl%mit Yourself. N ��°��2� 40 BOS0380C H gm°" ©Q TRINITARIAN CONGREGATIONAL CHURCH 70 ELM STREET NORTH ANDOVER,MA 01845 ESSEX COUNTY ANIEL F. 'C}, til 1 CI' Q 7YSTlIh� SITE TYPE:CHURCH STEEPLE 0ChC0 WD SURYM SITE INFORMATION: VICINITY MAP _ APPROVALS MO MI1 aR K.N MeA M•clv. �R eiamA a 1•rRA wA m+MC NIdERYOANEt TIRMTA1VMltlO90OM2aRM soft twm waum EA TM •a RMIONS aRNrmvr ReRRlAroaatwena -.r`2� ,.A^`ay: r•- Vit':';!�:!!t[i'y"2 ±�o�++r.i4mti�n _• flue im MN[4fR MO110/HMYfIgANiID.LLO a 'fry •i�j/f,• ,•;� ,;.4:: i � ,r' • mRAta2lIeNA0eR1 a021AfApAAOA9 rf:�•, tv 1'. .' .• '. OpMR02;wa2R •• X':��•:". 1.1' :'•''i' NIDIR6T�R8! fie...; x x 0/271OMNQ nNAL an,na xtssmm s' .t+' .': •. ...'''�--<. � SHEEP INDEX + o mm rm mNNG r222Rr: cam ?.. ��:. -'. ... . ..:,: � s OwR OmCiIP11O1M REV: o io mum rat nErtcx utnuDR Nmwm .. :.ti.t' ,;r 's:;';-�:cr: :'i�,i'i:::��.a:.•..�� L�.`.jw;_E�;yti`i'-' Rn. DATE oFseunetaN a..:.. \ 61 NOTNNI 2 2 ag OA1RIX'A710!! AtaEEMR�OM �. • ..j��`� •.�" .. ... _y��� auwk a m aA•• 2t1WPOAAa0CLOM WNAOANOAOMAvom fj R' �, 7• .. i1 IIDRNN1pOCDiRM�tMeMRIW 1 �� a•� 7A1a MAMNUM!!R WIOROR2 S.(:�"�� •Y /; `. .•�..:.......:. .. 2! 92MTION I ASA'• •{.-+�`�' = ;..'. �:... Z.2 RLE! 2 VW NA AACMkCTTON7RAEt NAOOROE MORD = .3SSS%���1 �. .. ..� �i. ,• 1" t•'r tIWMIR1000ERdT `f!' ;- r:•�-.�.•: ,�y� .r.:A. "''. '�,•'�A }�•'. BOS0380C TRINITARIAN CONGREGATIONAL R11OpoaNORR1RmsMa ... ':' ,;('Ai"_":r,p+s;..: 14t d� y,� f•:ry +--~ < NAnoovetwR2s sr� ;. ' ', �' t"' t,••rM1 �::• M'OAtA O01RAN2: snawraND .�:< alb=.•..:2:"•'•;.•• �,,..:. EOMEfA10OaAAMeAR ;�> .j•^�•. _ , � CHURCH ,n1ANae,o"we \<�.r '` .' �>� :r l "x ti DO NOT SCALE DRAWINGS ,RNE1R2raAar '. .�c+ / ��> .S,FA'- .,,••AtA...<. ORT7EfS/N1AVMG1O1p110/NMNWNAIOAEEQ! Vi t. 7.:.. t•i• i.• ..'1.1y r^ j•lMJJJ,1,.EfmwRm :•-t4:(a..+a• +•;i•••.�a':�`�i<`js`•"s`:,(:`�.:.r':?',�',7�:,.: wERwaEtwewuM.as7MAnopmlrinlaasnwaacmras1nAtneevE la/+AaRawArwAmas2amANRwmvaanEss.oaveaAnN® 70ELMST t SEN"" '? asxuNJRM0W0R M NA1N0wRRAA0=MWrN9MRRnRW E1fM=WRGkW- w1aMMA O1645 .. ` `%Y:....• wne lfnn VMS" PROJECT DESCRIPTION ars aeNMcv wsvRENAs TYRE SHEEP ttnl2Ma2eo DRMNG OIRECTIONS 1.1KSAN@Ewl'�N�D,OEL+mAo�mINNEENAINA..EtNaDN2nNt YIMMESmu.c DO217M.IOA7IRMEECOf nnMola MAsuDonuANt2iDM1a ttaNiomwM.EsaAeMaaReowllMsesmaT. f11O112R1ER2R11GAQ•O,NEADEOIRTRA7rONRIaEGRgIR.t1E1ONAAD6llDrriGEO47MlMNRA 2 IONIIMIRMOIMftINRAWIEIMAmATMStOGtt/7l tpryANe NO /ATAMLOOORIR.A®10EOMIDVDENVNTMRAWTOIDE$tANA44MMKOO47MRA1MAtOMTAT1ONa1 S ItON1j111NREIMLRIEE41tImAT71KIDClARL ' GdN[OfdINl12�S1ORlOEGLCONIRCtOIItAwAINOfA+M NA WOlN47NRaEf2aAtO MCAOt ONTO H00 aNDfOtaIlA2RNLLlERCMit9Q1N1W4tE0N N7O17AIOUM'161GROOl1wK7MEIEtafa/OAYA'm AYLOOE2KIRl1EloNro WVRARAaE271AVLGo :MtIMt'ClWINRNW211e'fR1'ACNLTENEf916RArf6LAtM2N1AMOVOEOFaN[110191 T�� etMAstaNrMasraaARRasrnoes A4uN+lruAr Ar MAllnaoaRr 2tMwEMs2NrArtnM sr MEMIIIIEMN01111ARITEMM. Ot1RNATA]NMM1IEEON7NEt1FCOOO2MLAfM1NRARAEU1ff.NpT/AVOWER 1MMM0. GENERAL NOTES: '•v' ,f.,, • 1 xfnaa f!m as amt xfrtw srw o rtK �• "n ` UntF.It YOvr"tf. Q- 1 xffmffa alw fKM•nfcu Mfr«,.m Ofml G� /• .\-�r------�\, / a s¢mm¢ram mlme«onna fuoK wma0 x.fwNer 183 F. ROW ,axmm f-nartft TKRD MRa n00a /���� •\ _: �.��^ �,, S IRJaIrt OfKR m Oa01 CHEIYSFDRD.Ma r[>.19"1:aa-1200 rix 1f7e)s.+ Axa ` \ a fa xaaae frmRs ' ` /✓ 1� a xxmm Kiera ut O ffz a • ,•\ ` ��\` y euafu`�nae •\• sf-f. '�� /�••\ ooKmnMOrff. Hudson � ; '• /, ,<J��'//�J ; ,� xS `�� ' ♦fffoceaf mw«,xlfffolNll Qx/aI,�NKf+a ;• ,`/`��[;(�/, /\•, \'•\ •') / %' "a �.• •\, '`,(/�� \ •/ n lux lm0ol� a,M"riw01faome0�°Ix�+a°im Kla '"Kme�. f.....x .""•�m�a w�., a/ \• ffrfe ( f sao�., W nm oenxo rwe«ic«a nR axnv —Au m_ Qf .y w aa� \/ �m-,f �y /' r�\waiill���� "o• \• ,aaff u rffaioirfr unna x nt rot ren rx fn.axe i• �i/ <\(/ra^`v, Y '\ Imfmxx m%na.efuc c t,., I /• %• Klxera Y fR lrxW M K.nl R xl 1-wJN•rID f,\' +j. affor rnowf / /_�/�J •� � rwa oaf:mv xe tttl,+a-moo APIx'CL F. •'\ ' far «m x�ir� «A Kiwo .: / !. % \, 1 �., %Kean uc werex.tafwm lfaix�x%w xo lRxe y�;�M .h,f f4 R w Ian \ U /� ` fmrws wo f oe a K axmum.f Mwo fm,Kwm R M �, I/a/////� / fonmaa•�•• / n f hay M«tmm •.� / �' \ a-„ a-a /' 7 mi0[«ioo°irao�d.TDnxu ro' iwr1Osm°fir.%ulm �� 7 Q \ x•,��� C / 1 %fwxe frm«na xM 6 faa a x1R wmK n0.S xxM xe :,� •.- / a.a, 1 /• /• Qoxew rmx amfo M,RflforL R a for fadom m R M '1 //.� Ll s,-ff r ,K \, �' C,• � 1 ata falmlmfx«ffx Kfef (� sfSTEl'. �:' ifs �. �•/` `\ /\• .\ ; /• %QNAI E '. L4�' �� ,/N'',`�/• ••\ ••\,v + /'//(//\/��')�J,• ,/ '..` ••\ I %• %' xx.MaNv«VxIxI MT.EUOI JgG NN1 /\/ •�, `\• j• L// / 7\ .\ wstry v�wamwssma c/ O N-,i\ \ l, �1/• /• /, �s / — — xaart Mc REVISIONS /��%\ '• Int ff 1 fw /\ !4-44 \ , an'o _ /•� / I ,�'' . .�. fecaxuxma "' s loinmxaa rvw 1 JOA2M WUM FOR 2WM �� �-' / \ / mar / % .•—..— fwr.frmex o o/la es+m roe RMEa •,�, .• •\ \ .. /` ., %' ••1 anti `'A L\ / �.�..�,• <`/\'\�/�) ✓\• •'\� _ / / /, xiaaoffffuxm IRv.I moE 0fxtfvnoH �yG,r\�// � \,'�•` -41 .• \ '\ �, i I \••��/ /• /, I w«.aaaiaxr fnrta ss ww n a few �/ • /• �` •'\ ••\ .f , •' \ ' _—=�____ am.ulrl�t 1a[/Mf em.e w. xf M.W \` .\ �, A '•\ I •'v, i Afx xYblR IK ��—�"• 01, � \ ,,x / ► RESIDENCE4 BOS0380C TRINITARIAN .�aa,f `� fxol � ,J CONGREGATIONAL IR CHURCH i, =0 \ '' ZONING SUMMARY TABLE NaRtNet+oa,elraamfa /•` .�•,�• a-If i• \ nt '•\ ,,\ ,� - fa.omxea ��a.oM.f.=, • :� \ �-- ^_ ���. wmaa IK, r a fax f axmfe>rti '` .l ,AIS .i•• ,fj xowm�m ..m«nKeuiM,.an, frtxnr' � arta rtaef a _ «e s PLOT PLAN ®e R�TPLAN Kr AKKt xf rt - uYa e-t Torc—i.�� lar we mal• xrt KY rS< fra•sf•.a frd ur-f• Beet rxfrm fmaR mmaffnfsfwflgK sof fro>tlfef• art q'a w'f ! _. - PJ�1xRRKAw«fart lRf A= fox ffC K,na„ art xr! fora f w«rax fffs w fawf lel x fflx ar Iaf11 fwrat x exfKew f.uxffr of fnaaae xa •nnafx rxuxf rmr/lt omer rKx ar C-1 s fnfoa xa wa rs,lt:tam rart s ma.ert m rtarart uin ,Ionia fxa fear nc afnac�aa fwc mfrfer m aartsr Kr,rc 1!R]IIaIT IK xwfml mRRO R I,ml x]w eor of ref xfs rffar. ���nuciem°[1mii2t w_�0�1a'x 0®e atLL�w�mlOoi�wl li • met. et.W(fut76n).o6�t�.N OP-RmI7.O 2v.MC0 mmM0 •e> mS. wWn .r UnlimttYcuEself SOA 263 GUERCA FLOO crtnXroo.Rw mw --o ySOR 8 Hudson 3w SECR D ` � tai GF , Am EL P. ® W la 1 CVI� L/ o A 720 � FNJPL 217 W ENGRIFlN/tMOSVRE1vR w SECTORC t.sl.b� rl tmuwct m r�u�monro� s.ume niaa.a..rtimt tmawcn aanmt inRe `� � RENSIONS DJ/ CROSS STREET— ® PIAN 2 10/27 Ra AN4 ROOF Pmvm =1 1 � v-Ir. , ,o FaR zaeNe rd td_s —IEARE 9-0, 0 10 1 fRS1RD FOR REHCIF ® �� REY. DIT[ OfYAIPRON�M ♦ use.. v I >s BOS _ ® TRINITARIAN CONGREGATIONAL Om,Ne Oax� ❑❑ CHURCH __ err.nnaFRR. 1 I ANTENNA ORIENTATION KEY 70e.MSTFW Nomllkoaalwmee _ 30' `'—, SECTOR A I FReFom uoRorn a,t 12D' ROOF PLAN MD 1 � .m tmnn SECTOR B EQUIPMENT ROOM PLAN 1 301 SECTOR D I _ 210' ® B EQUIPMENT ROOM PLAN SECTOR C Z-1 rr� rd rte• r rd r� rd . m-.2 — metroPCS: Unftmlt Yourself. 263 B&LEMCe RG0 TNmo nm CHaXSFORO.MA 01624 IMa 144:7100 FN( .7E 2�s-72N Hudson ©O O OF Al4.r�•, AIJ El F. ON aT 0 a �imi�m�iwAe® 75TE���<�: Q10RtEA1/LNIO SYRMM 'O• ••o•®.o.ore Qe � wnvw nwtm ro weal �..�ro.w v,a....ra.e. r.use,•.m...,.m. A 1.R111�•eOld, REVISIONS amne en. maw o�iei.�r•o,o�sm f muwoerm al alaule 010/27z�atw"4 ,cONROlMRMoR •>0. M M pr•1 om\.R BOS0380C TRINMARIAN 8 CONGREGATIONAL 8 fTlEll CHURCH een>ymar5s Af3M51}IEF'F NOM It7aOhRM al" .lgaa'i f�11Y tC IL u m�Wn�c aerie.of� p•awn Tmr� — 1 ELEVATION J I f I I dro+ 1 I +@WELEVATION Z-2 metroPCS. UnthwatYouraelf. M � A r Y a�ot►rme umieR trwlDD tam a 265 ORLERICA aOPn TMMO FLOOR chilmscm /Vt 01624 rxl(97a)2M-9]00 2H-9240 O �eme mMe/ Malwlm v uD so¢vx a rtn uaaar0 as M.oaw omnlD Lsa maa,lw l�� - :•.1, Hudson 0 o•1gn orwp,� xW4Ox 3100. 1 Y Ont MDOD aaeo.nneQ MID MLMR MMN01 M61Mlt OwHm 0001 .�m.qM M�prtsM rd IrMNwt piMlm mAOl pAISIOUPG[I .. ru/Mars eGPS AND ANTENNA DETAIL MUM RUN DETAIL �H OF u4r xa >L a M No,a 7M •���Z'157Ek'��`�: MMHMVL"Stlarxlt)e rrmmL>e taaa� wrm u.roll Mr.raso� waexm reaauc IOII.Q MMm A s wnpew DO•ml W1d pEIHD A♦NIM.oa.Al. I�0®.NI(L IIfIDIM 2Gr111/AA WQ REV6lOt+S ��ttltxr Ncx i-a^t'a reuHraD roc 2 IDMIDI MH 4 fIWL 1 to mvm FOR mnlHa 0 IV13 m m Fan 1¢VK1r REV.f attE OESaF1I0H tIKL wrwR 07 raft DESIGN LOM R n M Mse.a D-0/]'.rt/t tatollaT t. �Mm M irnmrm �Aman.ul r atH Wu ra�q MQ'm >_pwIO BOS0380C SffLMaTw-- TRIN[TAR1AN ..u°i a+ran 4M« CONGREGATIONAL CHURCH WIM 410.VDG Sn 7oaMsmMr Rotml7raoietMr,afee ORAIMM IMP eEQUIPMENT DETAIL DEAD 2 x eANTENNA MOUNTING DETAIL Z- 2y m _. ... 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'. �.fnvcly i. r•r•vy �r...�'I 11E•- S.� ��� L� i.�. a�lf�tG: t' r 7� r'1 "•� �- �s�' '=.Vtf �` ,•@• ...�7,.. {,f`� t Yk� (1 s: :�bY,t"'.,�,.'� '� ;r 1 � ,a; xi nlrr.Sl.-i+E�• �.., �_ .�$L.�`'c� � •• • 1 l `'�i•1 -";: Ili;. ,,.:.•:• ...F:;'� 9_ I i QUALIFICATIONS OF THE APPRAISER William J.Pastuszek,Jr.,MAI,SRA,MRA 199 Wells Avenue,Newton,Massachusetts 02459 (617)928-1778(ph)(617)663-6208(e fax)email: billp@shepherdnet.com Professional Associations • MAI Member Appraisal Institute • SRA Senior Residential Appraiser,Appraisal Institute • MRA Designated Member,Massachusetts Board of Real Estate Appraisers • ASA Senior Member,Urban Property,American Society of Appraisers Appraisal Certification • State Certified General Real Estate Appraiser,Commonwealth of Massachusetts, License#10,expires May 10,2011. • State Certified General Real Estate Appraiser,State of New Hampshire,License#NHCG-566, expires December 31,2008. • Appraiser Qualifications Board. AQB Approved Uniform Standards of Professional Appraisal Practice(USPAP)Instructor#10489. Appointments • Chairman;1998-2005,Commonwealth of Massachusetts,Board of Registration,Real Estate Appraisers.Board Member,Commonwealth of Massachusetts,Board of Registration,Real Estate Appraisers, 1996-2005. • Vice Chairman,Commonwealth of Massachusetts,Board of Registration,Real Estate Appraisers, 1997- 1998. • Member,Educational Council of the Appraisal Foundation Sponsors(ECAFS),2003- 2005. • Member,Appraisal Standards Board,The Appraisal Foundation,Washington,DC.2006-2008. PROFESSIONAL EXPERIENCE Real Estate Valuation Consultant:Shepherd Associates and Shepherd Valuation Services,1994-Present: Specializing in complex and unique valuation assignments with emphasis in current and retrospective market values,litigation support,and appraisal review for a wide variety of private,corporate,institutional and government clients. Senior Staff Appraiser,Steven C.Byrnes Associates,Inc., 1991'-1994:Specializing in the appraisal and evaluation of all types of income-producing and special purpose properties. Vice President and Senior Appraiser,Boston Federal Savings Bank,1980- 1990: Residential and income property appraisal and review;appraisal administration and management,including supervision of regulatory compliance and development of bank appraisal policies. Real Estate Experience, 1975-present:Appraising,consulting,and market research for institutional and private clients,including lenders,attorneys,and investors. Experience includes consulting,brokerage,management, development,and construction services in varied settings. Education-B.A.,Oberlin College,Oberlin,Ohio. PASTUSZEK,Page 2 Types of Properties Appraised: • Commercial,industrial,retail,non-profit,institutional and special purpose properties,motels&hotels, automobile-related properties,medical properties,multi-family,residential properties,development properties and all types of land. Types of Assignments Performed: • Market value opinions of fee simple,leased fee,and leasehold interests for residential and commercial properties of all types,including investment and owner-occupied properties,special purpose properties,and land of all types. • Specialized problem solving include highest and best use and feasibility analysis,rental values, contamination issues,marketability problems,corporate property disposition and site decision making,real estate tax issues,estates and other legal work,court testimony and litigation support,buy-sell decisions,limited scope appraisals,appraisal review,zoning analyses and telecommunications tower impact studies. Clients Served • Financial institutions,banks,attorneys,corporations,insurance companies,accountants,financial planners, individuals,trust departments,municipalities,state and federal agencies,and companies. Expert Witness Testimony: Qualified in Middlesex Superior Court,Norfolk Probate Court,Middlesex,Norfolk and Suffolk Probate Courts,Bristol District Court,Barnstable District Court,Worcester District Court,and Federal Bankruptcy Courts in Boston,Worcester and New York City.Qualified at the Appellate Tax Board. Numerous ZBA hearings as a real estate expert. Articles and Publications: • Banker and Tradesman:articles • New England Real Estate Journal:appraisal column • Development Reviewer:Fisher and Martin,Income Property Valuation(Dearborn Financial Publishing,Chicago) • Development Reviewer,Fisher and Tosh,Questions and Answers to Help You Pass the Real Estate Appraisal Examinations(Dearborn Financial Publishing,Chicago). • Newsletter,Massachusetts Board of Real Estate Appraisers,articles. • Newsletter,Greater Boston Chapter of the Appraisal Institute Newsletter:articles. Education Offerings Written/Developed: • Review Appraising • Fair Lending • HUD Appraisals • USPAP Manual(for the Massachusetts Board of Real Estate Appraisers) • Income Property Appraising • Effectively Using the HP 12-C Calculator • Technology and the Appraiser,Residential Appraisal Trends • Title S Seminar Continuing Education:Mr.Pastuszek is in compliance with the continuing education or recertification programs of the Appraisal Institute,American Society of Appraisers,and the Massachusetts Board of Real Estate Appraisers. PASTUSZEK,P.3 i Teaching/Educational Affiliations -Bentley College, Waltham,Massachusetts-School of Continuing and Professional Studies,Senior Instructor: Residential and income property appraisal courses, 1986- 1998. -Stonehill College, Easton,Massachusetts-Instructor,Continuing Education,Residential&Income Property Appraisal,Massachusetts Board of Real Estate Appraisers, 1984-85& 1998-99. -Realtors Institute,Massachusetts Association of Realtors-Instructor,GRI III, 1989-1991. -Appraisal Institute-Instructor:Course 101,Basic Valuation Procedures(120),Basic Income Capitalization Techniques(310),seminars. -Massachusetts Board of Real Estate Appraisers-Standards of Professional Practice,Residential and income courses(1, IA,2,2A),commercial review course,seminars. -Instructor, Panelist,Seminar Leader:Organizations include assessors'organizations, New England League of Savings Institutions,Risk Management Association,Massachusetts Mortgage Bankers,Massachusetts Board of R.E.Appraisers,Financial Managers Society,Massachusetts Association of Assessors,IAAO,various Realtors organizations. -CourselCurriculum Development:MBREA Uniform Standards of Professional Appraisal Practice(USPAP) Manual,MBREA Courses 2&2A,MBREA Residential Trends and Limited Appraisals Seminar,Update Seminar,Residential and Commercial Review seminars,Unique and Unusual Properties Seminar,Effective Communication Seminar,Limited Appraisals and Evaluations Seminar. APPRAISAL COURSES TAKEN AND EXAMINATIONS PASSED • Society of Real Estate Appraisers:Courses 101, 102,201, 202&Standards of Professional Practice. • Appraisal Institute:Courses IA-1, IA-2;Standards of Professional Practice. • Massachusetts Board of Real Estate Appraisers:Courses 1,II,Ilia 1980. PROFESSIONAL AFFILIATIONS Appraisal Institute,Greater Boston Chapter -Co-Chair,Legislative Affairs Committee,1993;Seminars Chairperson, 1994 -Board of Directors, 1993-1995. -Young Advisory Council,1992-93. Appraisal Institute,Eastern Massachusetts Chapter -Board of Directors,Education Committee Chair, 1991;Chairperson,Research Committee, 1989 Massachusetts Board of Real Estate Appraisers -President, 1990 -Chairperson,Education Committee, 1991-1993, 1996. -Chairperson,Board of Examiners, 1989;Chairperson,Seminars Committee, 1987-88;Public Relations, 1995. -Member,Long Range Strategic Planning,Audit and Budget,Management,Professional Practice Committees. Alternate Representative to Advisory Council,The Appraisal Foundation, 1993-1996. Massachusetts Board of Registration of Real Estate Appraisers -Member,Education Review and Compliance Sub-Committees. �_ G i' ll - aF "";•qH0 Town of North Andover p Office of the Planning Department i�;. ; i; r • s Community Development and Services Division 1600 Osgood Street SSHCHu`'Y North Andover, Massachusetts 01845 - NOTICE OF DECISION Any appeal shall be filed within(20)clays after the date of filing this notice in the office of the Town Clerk. Date: March 3,2009 Date of Hearings: December 2,2008, January 6,2009,January 27,2009, February 3, 2009,February 24,2009, March 3, 2009 Date of Decision: March 3, 2009 Application of: MetroPCS Massachusetts, LLC & Trinitarian Congregational Church of North Andover Premises Affected: 70 Elm St. Map 42, Parcel 2. Referring to the above petition for a Wireless Special Permit from the requirements of the North Andover Zoning Bylaw, Sections 8.9 Wireless Service Facilities and Section 2.65 Special Permit Granting Authority. So as to allow the ability to install 6 panel antennas within the church steeple at a centerline height of 80 ft. The antennas will be connected via co-axial cable to three equipment cabinets to be located in the basement of the church building, within the Residential 4 District. The Planning Board hereby APPROVES the Wireless Special Permit for the installation of a Wireless Facility on an existingstructure by a vote of 4 in favor and 0 against. orth Andover P nning$oard John.Simons,Chairman Jennifer Borax, Clerk Richard Rowen Michael Walsh 1 ' The Planning Board herein approves the Special Permit to co-locate and operate the Wireless Facility, which consists of 6 panel antennas located in the church steeple and associated equipment cabinets, located in the basement of the Trinitarian Congregational Church building. The Special Permit was requested by Bill McQuade, Agent for MetroPCS Massachusetts, 285 Billerica Road, Chelmsford, MA 01824 and by the Trinitarian Congregational Church of North Andover. This application and additional documentation as cited herein was filed with the Planning Board on October 30 2008, with subsequent submittals on file. The applicant submitted a complete application which was noticed and reviewed in accordance with Sections 8.3, 8.9, 10.3, and 10.3.1 of the Town of North Andover Zoning Bylaw and MGL c.40A, Sec. 9. The Planning Board finds that the applicant has met the following requirements as required by the North Andover Zoning Bylaw Section 8.9: FINDINGS OF FACT: 1. The carrier has demonstrated that there is an existing substantial gap in coverage in the vicinity of the proposed installation and that the facility is necessary in order to substantially close the gap in coverage as indicated by the submittals and reports referenced at the end of this decision in Condition#16. 2. The applicant has demonstrated that no alternative available sites, that will close the substantial gap in coverage, exist as an opportunity for.co-location. Neither an existing alternative W;reless facility monopole nor an existing alternative wireless facility installation, exist as indicated by submittals and reports referenced at the end of this decision in Condition#16. The evidence shows that an alternative site is neither available nor technically .feasible, thus complying with the requirements of section 8.9.6 for co-location. 3. The Zoning Enforcement Officer of the Town of North Andover reviewed the permit application and determined that it complied with the Zoning Bylaw without variances and that the Special Permit Granting Authority (the Planning Board) should rule on the application as referenced in the letter referenced at the end of this decision in Condition#16. 4. The application meets the filing requirements of the Wireless Service Facilities By-law Section 8.9, with the exception of the waivers granted listed in Condition #15. 5. Adequate and appropriate facilities will be provided for the proper operation of the proposed use. The proposed antennas cables and equipment area are described in detail on the plans and reports referenced herein. The proposed equipment shelter will be an unoccupied, unmanned, specialized area for the wireless communications equipment. A detailed signage and access plan has been submitted as part of the application. 6. A structural analysis of the building was performed by the applicant, as indicated 2 by the submittals and reports referenced at the end of this decision in Condition #16. The analysis determined that no structural upgrades are required for the installation of the wireless facility as proposed. 7. The applicant has provided evidence that they have a legal right to install the wireless facility as proposed, indicated by the submittals and reports referenced at the end of this decision in Condition#16. 8. Installation of this facility will have no visual impact on the surrounding neighborhood because the facility is totally enclosed and will not be visible from adjacent properties. 9. The applicant has demonstrated that the proposed wireless facility will be in compliance with FCC regulations regarding Maximum Permissible Exposure (MPE) limits, as indicated by the submittals and reports referenced at the end of this decision in Condition #16. The Telecommunications Act of 1996 prohibits this Board from taking health effects of RF transmissions into account beyond FCC requirements. 10. The applicant has demonstrated they have met the requirements of all appropriate boards and commissions, as indicated by the National Environmental Policy Act (NEPA) Screen Report dated January 20, 2009 and the letter from the North Andover Historical Commission,dated December 22,2008. 11. The application was reviewed by a consultant retained by the Planning Board Mark Hutchins, a certified radiofrequency engineer, who verified that the application is in compliance with the Federal Communications Commission i (FCC) standards and that the application complies .with the town of North Andover's bylaw with regard to RF engineering issues, including but not limited to the following: • The determination that a significant gap in coverage exists. • The determination that no alternative sites are available and technically { feasible to close the coverage gap. r i 12. Neighbors and other citizens in opposition to the project submitted documentation in support of their position. However, the Planning Board believes that the applicant has demonstrated compliance with the Town of North Andover Zoning l Bylaw requirements for this application. Finally the Planning Board finds that this project generally complies with the Town of ! North Andover Zoning Bylaw requirements as listed in Section 8.9 but requires conditions in order to be fully in compliance. The Planning Board hereby grants an approval to the applicant provided the following conditions are met: i 3 SPECIAL CONDITIONS: I) Discontinuance Abandonment a) At such time that a licensed carrier plans to abandon or discontinue operation of wireless service equipment, such carrier will notify the Town by certified US mail of the proposed date of abandonment or discontinuation of operations. Such notice shall be given no less than 30 days prior to abandonment or discontinuation of operations. In the event that a licensed carrier fails to give such notice, the wireless service equipment shall be considered abandoned upon discontinuation of operations. b) Upon abandonment or discontinuation of use, the carrier shall physically remove the wireless service equipment placed on the site by the carrier within 90 days from the date of abandonment or discontinuation of use. "Physically remove" shall include,but not be limited to: i) Removal of antennas, mount, equipment shelters and security barriers installed by the carrier(unless the same will continue to be used by the owner) from the subject property. ii) Proper disposal of the waste materials generated by the carrier from the site in accordance with local and state solid waste disposal regulations. iii) Restoring the location of the wireless service facility in its condition before the installation, except that any Landscaping and grading shall remain the after-condition. c) The equipment shall be deemed to be abandoned or discontinued if it has not been used for the purpose for which it was originally constructed for a period of six(6) months or more. Once abandonment or discontinuance has occurred, the carrier shall remove the equipment from the subject property within ninety days. 2) Upgrades: Any upgrades would require a new structural report to be submitted to the Planning Board for review. 3) Performance Guarantees a) Insurance in a reasonable amount determined and approved by the Town Planner after consultation at the expense of the applicant with one (1) or more insurance companies shall be in force to cover damage from the equipment on the structure, damage from transmissions and other site liabilities. Annual proof of said insurance must be-filed with the Town Planner. b) Annual certification demonstrating continuing compliance with the standards of the Federal Communications Commission, Federal Aviation Administration and 4 the American National Standards Institute shall be filed with the SPGA by the Special Permit holder. s 4) Term of Special Permit. a) A Special Permit issued for this wireless service facility shall be valid for three (3) years. The special permit may be renewed under the same criteria as the original special permit, provided that the application for renewal of the special permit is made prior to the expiration date of the original or any renewed special permit. Additional measures governing the administration of the special permit are found in Section 10.3 of the Zoning Bylaw. b) After the equipment on the facility is in operation, the applicant shall submit to the SPGR, within 90 days of beginning operations and at annual intervals from the date of issuance of the Special Permit, preexistent and current RFR measurements. Such measurements shall be signed and certified by an RF engineer, stating that RFR measurements are accurate and are in compliance or why the measurements fail to comply with all applicable FCC Guidelines as specified in Section 8.9(5)(d)(vii) RFR Filing Requirements of this Bylaw. The measurements shall be submitted for both the applicant and all co-locators. c) After the wireless service facility is in operation the applicant shall submit to the SPGA; within 90 days of.the issuance of the Special Permit, and at annual intervals from the date of issuance of the Special Permit, preexistent and current measurements of acoustic noise from the wireless service facility. Such measurements shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet the Noise Standards sub-section 8.9.(5)(d)(vi) of this Bylaw. The applicant shall forward to a separate consulting engineer, selected by the Town, the above materials for review. The applicant shall pay for such review. d) The applicant and co-applicant or their successor in interest shall maintain the wireless service equipment in good condition. Such maintenance shall include, but shall not be limited to,painting and structural integrity of the antennas. 5) Prior to the start of construction: a) The applicant shall provide a map indicating the intended locations for testing as required above. b) A bond in the amount of$5,000 shall be posted for the purpose of insuring that a final as-built plan showing the location of all on-site structures. The bond is also in place to insure that the site is constructed in.accordance with the approved plan. This bond shall be in the form of a check made out to the 5 1 Town of North Andover. This check will then be deposited into an interest bearing escrow account. c) The applicant shall provide the necessary escrow accounts and insurance as required in the above sections 3a and 5b. d) A construction schedule shall be submitted to the Planning Staff for the purpose of tracking the construction and informing the public of anticipated activities on the site. e) The applicant shall determine the preexisting conditions of the noise levels emanating from the site to determine the baseline noise conditions of the site area. The noise survey will provide evidence of the origin of surrounding noise and therefore a baseline condition from which the applicant determine their increases. The noise levels shall not increase the broadband level by more than lOdb(a) above the ambient levels or produce a "pure tone" condition as set forth in DAQC Policy 90-001, the guideline for 310 CMR 7.10. The.applicant may use relevant professional sound emitting data from the prior building use to build a baseline based on prior use of the building and grounds. References to sources for data must be included in the material. 6) Prior to;OW,41 U verification (Building Permit Issuance); ay The final site plan mylars must be endorsed and three (3) copies of the signed plans must be delivered to the Planning Department. b) A certified copy of the recorded decision must be submitted to the Planning Department. 7) Prior to verification of the Certificate of Compliance (Control Construction Documentation) and final approval by the Building and Electrical Inspector the applicant must submit a letter from the architect or engineer of the project stating that the construction and operations substantially comply with the plans referenced at the end of this decision as endorsed by the Planning Board. 8) Prior to the final release of security a final as-built plan showing final construction and location of the wireless hardware shall be submitted to and reviewed by the Planning Staff. 9) In an effort to reduce noise levels,the applicant shall keep in optimum working order, through regular maintenance, any and all equipment that shall emanate sounds from the structures or site. 6 10)No equipment or other equipment that will emanate noise-exceeding levels cited herein shall be placed on the exterior of the structure. Such equipment shall be enclosed as shown on the plans. 11)The provisions of this conditional approval shall apply to and be binding upon the applicant, its employees and all successors and assigns in interest or control. 12)Any action by a Town Board, Commission, or Department that requires changes in the plan or design of the building as presented to the Planning Board, may be subject to modification by the Planning Board. 13)Any revisions shall be submitted to the Town Planner for review. If these revisions are deemed substantial, the applicant must submit revised plans to the Planning Board for approval. i 14)This Special Permit approval shall be deemed to have lapsed after two years from the date permit granted unless substantial use or construction has commenced. Substantial use or construction will be determined by a majority vote of the Planning Board. 15)The following waivers were granted in determining this decision in accordance with the authority designated by Section 8.9.(5)(d)(ix)of the Zoning Bylaw: i Section 8.9(5)(d)(iv) Landscape Plan. A landscaping plan has not been provided since this is a co-location within an existing building. • Section 8.9(5)(d)(iii) Contours on Site Plan at 2 feet AMSL. Since this is a co- location within a building the plan does not show 2 foot contour lines for the property. Section 8.9.(5) (d) (iii) (13) Waiver of Site Filing Requirements— Location of all wetlands on the subject property and within 100' of the proposed facility as approved by the Conservation Commission. No wetlands are located on the property or within 100 ft. of the property. • Section 8.3(3)(a)(ii)Site Plan Review. The application is for a co-location on existing building, and will not require additional water and sewer, will not generate significant additional traffic and will not cause any detriment to public health and safety. 16)The following information shall be deemed part of the decision: a) Plan titled: MetroPCS Site No. BOS0380C Trinitarian Congregational Church 70 Elm St. North Andover,MA 7 Essex County Prepared for: MetroPCS 285 Billerica Road Chelmsford, MA 01824 Prepared by: Hudson Design Group 1600 Osgood St. North Andover, MA 01845 Dated: 10/15/08, revised 10/22/08, 10/27/08 Sheets: Sheet Number Title T-1 Title Sheet C-1 Plat Plan Z-1 Roof Plan&Equipment Room Plan Z-2 Elevation Z-3 Details b) Documentation Submitted: 1. Original Planning Board Application for Special Permit with Site Plan Approval, dated October 30, 2008, complete with narrative,certified abutters' list; 2. Updated Application cover sheet, naming joint applicants MetroPCS, LLC and the Trinitarian Congregational Church of North Andover,dated January 27, 2009; 3. An RF report,dated October 30, 2008,prepared by Frantz Pierre,with coverage charts,demonstrating(1)the need for the facility,(2)the coverage it will provide; 4. Letter requesting for Waiver from Site Plan Review,Section 8.3(3)(a)(ii); 5. Letter requesting waivers for Site&Design Filing Requirements; 6. A set of 3(three)Proposed Coverage Maps from BOS0380C; 7. Statement of Radio Frequency Engineer,dated October 23,2008; 8. Compliance with FCC regulations regarding Maximum Permissible Exposure, dated October 23,2008; 9. Power Density Calculations; 10. FCC Radio Station Authorization,dated November 30,2006; 8 11. A Letter of.Authorization from William W,Pickles III, Chaimian,Trustees, Trinitarian congregational Church,dated October 27, 2008; 12. A Letter of Authorization from Kate Rugman, Site Acquisition Manager, MetroPCS, dated February 18,2008; 13. A set of 9(nine)photo location maps, dated October 20, 2008; 14. A portion of a brochure from Stealth Corp.,highlighting the proposed replacement louvers; 15. Structural Analysis,dated May 9,2008, prepared by Hudson Design Group, Inc; 16. A letter from Hudson Design Group, providing a structural assessment of the existing flagpole located at Steven's Estate,dated December 19,2008;, .17. A report from Noise Control Engineering,dated November 17,2008; 18. A memo from Noise Control Engineering,addressing the issue of Pure Nose, dated December 23, 2008; 19. A NEPA report from Envirobusiness (EBI) Consulting, dated November 20, 2008; 20. A report from Donald Haes, Radiation Safety Specialist,dated November 11, 2008; 21. A report from Mark Hutchins, Radiofrequency Engineer, dated January 19, 2009; 22. An Alternative Analysis of Wireless Telecommunications Facility Locations, North Andover,MA; 23. Am RF/EME Safety Plan,prepared by Hudson Design Group,dated January 29, 2009; 24. Report from VHB, dated December 18, 2008; t 25. Various Reports From J.Tymon,dated November 3, 2008,December 2,2008, I January 27,2009; { 26. Various memos from Peter B. Morin,Esq.,dated December 11,2008,January 20, i 2009,and January 30,2009; 27. A memo from Gerard Brown, Zoning Enforcement Office,town of North Andover,dated December 3.2008; i t 9 28. A memo from Gerard Brown,Zoning Enforcement Officer,town of North Andover,dated February 24, 2009; 29. A real estate appraisal report titled "Site Specific Cellular Communications Installation Analysis, by William J. Pastuszek,dated February 10,2009; 30.An updated NEPA report from Envirobusiness(EBT)Consulting, dated January 20, 2009; 31. A memo from the town of North Andover Historical Commission dated December 22,2008. 32. Multiple documents from neighbors, abutters and attendees at public hearings including: • Letter to Editor—Thea Fournier,date unknown; • Letter from L. Fennessy, Date Dec. 2,2008; • List of Signatures"Not in favor of antennas in steeple"dated Dec. 2, 2008 • Letter from J. Fitzgibbons,dated Jan. 15,2008; • January 23 2009 letter from Walter Soule supporting the 600 ft. setback change made in 2000; • January 26 2009 letter from the 2000 Wireless Committee supporting the 600 ft. setback change made in 2000; • The first page of the Citizen Petition opposing the 70 Elm St. Wireless Facility installation. The petition contains approximately 162 signatures; • A compilation of health reports(summaries)demonstrating health effects of RF emissions; i A memo from E. Collins, dated Jan.26,2009; • Affidavit of Robert Noone,a real estate appraiser,stating his opinion that wireless facilities could have an effect on property values; l • Statement from Lauretta Wentworth,a real estate agent and abutter to the 70 Elm St. property,stating that in her opinion,the value of her home could be decreased due to the presence of a wireless facility. Also included is a current appraisal of her home at 45 Elm St; j • The decision of the court of the Southern District of New York,Verizon 1 Wireless vs. the town of Clarlcstown; • Email from D. Deems dated Feb.24,2009; • Email from B. Romano, dated Feb. 18,2009; t • Fire/Safety list submitted by A. Petrus at Feb. 24 2009 Planning Board meeting; i • Letter from E.Collins with Letter to Editor from M. Quinlan,received at PB meeting Feb. 24,2009; 10 • Map and list of cell tower location,submitted by C. Allen,received at PB meeting Feb. 24,2009,along with associated material,totaling 29 pages, including 2 letters from R. Nicetta,Building Commissioner,Town of North Andover,dated Aug.1, 2001 and May 25, 2002;and 2 letters submitted by G. Brown, Building Commissioner town of North Andover„ dated April 12; 2006 and Dec, 3,2008; • A copy of the Tampa Times,dated Feb 17, 2009; • A letter to R. Nicetta from J. Stearns,dated July 27, 2001. 11 H COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als.And METROPCS, INC. DEFENDANTS AFFIDAVIT OF MARK F.HUTCHINS MARK F. HUTCHINS hereby deposes and says as follows: 1. My name is Mark F. Hutchins. I have personal knowledge of the statements made herein. 2. I have been a member of the Society of Broadcast Engineers since 1971. I have been a Certified Senior Broadcast Engineer since 1977. I am a Member of the Institute of Electrical and Electronics Engineers and the IEEE Microwave Theory & Techniques Society. I worked on Standard 356-2001 for the Wave Propagation Standards Committee of the IEEE Antennas &Propagation Society. I have extensive experience in facility collocation and interference issues, and am the Accredited Frequency Coordinator for FCC Part 74 spectrum below 2 Gigahertz for the State of Vermont. 3. One of my fields of work involves consulting with municipalities on the review of applications for permitting of personal wireless service facilities. In that capacity, I am experienced in the technical review of radio frequency propagation modeling, in which I examine a wireless provider's RF model to confirm its accuracy and authenticity. I am also experienced in the review of RF emissions calculations to determine compliance with FCC regulation of RF exposure limits. 4. Since the Telecommunications Act of 1996 came into being, I have consulted with dozens of municipalities and regional planning agencies in Vermont,New Hampshire, Massachusetts, Maine,New York and Connecticut. I have testified as an expert witness in a half dozen federal Telecommunications Act lawsuits involving the communities of Kittery, Maine; Southampton,Massachusetts; Southeast,New York; Franklin, Massachusetts; and York, Maine. 5. In or about the month of December, 2008, I was retained by the Town of North Andover to perform a technical review of the application of MetroPCS of Massachusetts, LLC, for permits to install three wireless antennas inside of a church steeple at 70 Elm Street. The review included review of the radio frequency propagation modeling performed by MetroPCS as well as examination of the RF coverage that would be supplied by several alternative sites, and a review of the anticipated RF emissions from the operating facility to determine compliance with FCC exposure limits. 6. A description of my methodology and the results of my analysis are contained in a report entitled"North Andover,Massachusetts Wireless Facility Analysis, MetroPCS Massachusetts, LLC d/b/a MetroPCS proposed site#BOS0380C at Trinitarian Congregational Church, 70 Elm Street,prepared by Mark F. Hutchins, Radiofrequency Engineer January 19, 2009"(the"Report") which was submitted to the North Andover Planning Board during the conduct of its public hearing on MetroPCS's application for zoning relief that is the subject of this litigation. 7. A true and accurate copy of the Report is attached to this affidavit. Signed under the pains and penalties of perjury this 1st day of July, 2009. Mark F. Hutchins 2 NORTH ANDOVER, MASSACHUSETTS WIRELESS FACILITY ANALYSIS MetroPCS Massachusetts, LLC d/b/a MetroPCS Proposed Site #BOS0380C at Trinitarian Congregational Church, 70 Elm Street Prepared by Mark F. Hutchins Radiofrequency Engineer January 19, 2009 www.MarkHutchins.org • Brattleboro, VT 05302-6418 ©2009 Mark F. Hutchins Broadcast Services, Inc. Copyright claimed in the Analysis. Report copying is allowed by the Town,Applicant, and federal/state reviewing agencies for planning and permitting procedures. Brief quotations are allowed by other parties with proper attribution. 1. EXECUTIVE SUMMARY 1.a. The proposal, by MetroPCS Massachusetts, LLC d/b/a MetroPCS ("MetroPCS"), to con- struct a personal wireless communications facility at Trinitarian Congregational Church ("Church") is based on a reasonable expectation to establish its network. Technical studies supplied by the applicant, and corroborated by independent modeling, indicate that the pro- posed facility is a necessary network component within the Town of North Andover. 1.b. The proposal meets Town of North Andover Zoning Bylaw' goals and requirements re- lating to RF engineering issues, as discussed herein. Infrastructure of the type being pro- posed is necessary for Personal Wireless Services? ("PWS"); in particular, Advanced Wire- less Services ("AWS")spectrum has been allocated by the Federal Communications Com- mission ("FCC") in response to "explosive.growth in the demand for both voice and data ser- vices."3 This-is coupled with an expectation of continuous service not only along roads and .in vehicles but also within buildings. -Even with utilization of Other existing structures as planned by the applicant for-its new network, there will still be an area in the vicinity,.primarily east, of the-Church.with inadequate.coverage.unless the proposed.facility (or cell with.substantially similar location) is employed-. 1-:c. The Church steeple will enable.placement of.6 transmit-receive antennas, concealed- -within the structure. All antennas would be-placed behind fiberglass RF-transparent re- placement louvers with the-exception of a-sma114-GPS-arrten-na mounted externally below the louvers.. Radiofrequency-("RF") interference to abutters-is unlikely;-however,local-control of interference�is preempted by the-FCC. Cumulative-RF radiation is certain to be within FCC guidelines for human exposure, as long as antenna access is restricted. The Federal Avia- tion Administration ("FAA") requirements for obstruction marking and lighting generally apply to structures exceeding 200' (feet) above ground level ("AGL"), which is not the case. There- fore, it can be assumed that applicant will comply with FAA/FCC height and marking regula- tions. 2. INTRODUCTION 2.a. According to the Telecommunications Act of 1996 ("TCA"), "the term 'personal wireless services' means commercial mobile services, unlicensed wireless services, and common car- rier wireless exchange access services."5 The services examined in this analysis are a sub- set of Commercial Mobile (Radio) Services ('°CMRS"). According to the FCC, "[t]he primary components of CMRS are currently the Specialized Mobile Radio Service (operating in the 800MHz and 900MHz bands and authorized under Part 90 of our Town of North Andover Zoning Bylaw,18.9:Wireless Service Facilities; Bylaw amended 7/13/08. 2 Conventional cellular operates in the 800MHz range. Most paging is below 1,000MHz, which is 1 Gigahertz ("GHz"). Of all Personal Wireless Services,the subsets known as broadband PCS (Personal Communica- tions Services, operating just below 2GHz)and AWS-1 (Advanced Wireless Services, operating at 1710- 1755MHz and 2110-2155MHz)are more difficult from the standpoint of RF propagation. 3 The FCC, regarding AWS. See http://wireless.fcc.gov/services/index.htm?job=service_home&id=aws " The Global Positioning System (GPS)antenna is approximately 5" high by 3.2"diameter; see Site Plan Z-2, Elevation; and Z-3, GPS and Antenna Detail. 5 47 U.S.C. §332(c)(7). The relevant language of TCA Section 704 is attached as Appendix 1. 1 rules), the Cellular Radiotelephone Service (800MHz band, Part 22), and the Broadband Personal Communications Service (1900MHz band, Part 24)."6 Under this definition fall the vast majority of wireless telephony and data services; other per- sonal wireless services include traditional commercial paging services and wireless broad- band (Internet) services. 2.b. The TCA preempted some local regulation, but most land-use jurisdiction was specifi- cally preserved by the Act for local bodies such as the Town of North Andover Planning Board. While it is acceptable to require demonstration of need and to employ rigorous re- view, the TCA requires action without undue delay, and forbids discrimination among provid- ers or decisions that would effectively prohibit personal wireless services. Additional federal preemption is discussed in the RF Interference and Radiation section. 2.c. According to the application with accompanying engineering submissions, MetroPCS is establishing service in the Town of North Andover to meet the requirements of its FCC li- cense. 2.d. The Church enables radio "sight"' along Chickering Road and Osgood Street over a two-mile section that is also Routes 125/133 as it passes through the area intended to be served by the proposed facility. 2.e. The proposed facility includes placement of 6 transmit-receive antennas in the steeple behind fiberglass RF-transparent replacement louvers, along with a small external GPS an- tenna. Given the antenna model proposed, the center-of-radiation (or centerline "C/L") height would be approximately 80' AGL. A secure area for ancillary equipment is proposed inside the church. 3. APPLICATION SUBMISSIONS 3.a. The MetroPCS application material included site plan, RF coverage discussion and pre- dicted-coverage plots, RF radiation statement; additional information was subsequently pro- vided in response to my 12/5/08 request.8 3.b. Figure 1 shows the location of the proposed facility in relation to neighboring applicant cells, as well as three alternative sites and a traffic count discussed later in the analysis. 3.c. The MetroPCS RF engineering submission included predicted-coverage plots that showed 1.)the proposed-site performance alone; 2.) the area of inadequate service resulting if all the other sites were used without the proposed facility; and, finally, 3.) the aggregate of coverage from all sites. The applicant plots used the desired signal (coverage) level that MetroPCS considers the minimum for adequate service. Regarding the signal-strength val- ues shown on the submissions, neither Congress nor the FCC has directly defined what con- stitutes an adequate level; threshold levels will be discussed later in the analysis. 6 FCC WT Docket No. 02-353, "In the Matter of Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands", Footnote 6, 11/7/02. The analogy between radio coverage and visible light is discussed in the"Demonstration of Need—General Considerations"section. e Mark F. Hutchins email to Judy Tymon, 12/5/08. 2 4. DEMONSTRATION OF NEED — GENERAL CONSIDERATIONS 4.a. Personal wireless services are considered "line of sight" because coverage at these higher radio frequencies is generally limited to the area where the antenna could be seen were it not for trees and buildings. While sight is not a literal requirement (the signal does considerable bending — known as diffraction — around obstacles), RF propagation is impaired by hills, buildings, and trees, particularly when the base-station antenna is lower. Shadowing, blockage and, particularly, distance from the transmitter are generally even more critical with proliferation of low-power hand-held transmitters (phones) operating at high frequencies. 4.b. Signals that graze treetops and blocked paths do not mean affected areas will have no communication, but ideally will be avoided. As previously mentioned, MetroPCS uses higher- frequency AWS spectrum, which means terrain and foliage impact will be more severe. Therefore, providers generally seek antenna placement at sufficient height to minimize foli- age losses. Signal strength deteriorates rapidly with increasing distance from the base sta- tion and, particularly with AWS, we may see solid coverage of only a mile or so. Another consideration is that there must be enough overlap of coverage to allow handing off mobile users as they travel from one cell to another. 4.c. In attempting to illustrate how radio waves travel to the desired destination, the analogy is often made between RF propagation and visible light. Preferable to shining a test light is the utilization of"real-world" computer modeling, which calculates signal attenuation and bending caused by the particular terrain and ground cover. The analyses herein employed the widely accepted Okumura9 RF propagation model, with 30-meter-resolution terrain data. "The Okumura approach is probably the most widely quoted of the available models. It takes into account not only urban, suburban, and rural environments, but also describes the effects of different kinds of terrain. All phenomena and effects can be computed well in practice.s10 An empirical model with decades of utilization and refinement, Okumura is particularly sensi- tive to the impact of irregular terrain. The model performs pertinent reliability factoring, which takes into consideration seasonal variation due to foliage. Longley-Rice11 and Bullington12 propagation models were also employed; among other uses, the Bullington model has com- puted field strengths in the protected Table Mountain quiet zone near Boulder, Colorado. Questions are sometimes raised regarding prediction versus actual measurements from what is known as a drive test. Both have advantages and limitations. While a drive test indicates the "real world", it is a snapshot—generally on a particular day —that may not sufficiently re- flect seasonal (foliage) and user-traffic variations or even variations in user devices. As a practical matter it is often unrealistic to test indoors or areas inaccessible to vehicles, so the drive test is normally limited to highway/street coverage, which then can be extrapolated to predict overall area coverage. 4.d. Adequate Coverage, as previously noted, has not been directly defined by Congress or in the FCC Rules and Regulations. In adopting PWS siting regulations, some communities 9 "Field Strength and Its Variability in VHF and UHF Land-Mobile Radio Service,"Yoshihisa Okumura, et al., Review of the Electrical Communications Laboratory,Vol. 16, No. 9-10, Sept.-Oct., 1968. 10 Radio Propagation in Cellular Networks, p. 261; Nathan Blaunstein, Ph.D.;Artech House Publishers, 2000. 11 "Prediction of Tropospheric radio transmission over irregular terrain,A Computer method-1968",A. G. Long- ley and P. L. Rice, ESSA Tech. Rep. ERL 79-ITS 67, July, 1968. 12"Radio Propagation for Vehicular Communications", Kenneth Bullington, IEEE Transactions on Vehicular Technology, vol.VT-26, no.4, Nov., 1977. 3 have included coverage definitions. In its objection to the -95dBm13 adequacy level set by the Town of Concord, T-Mobile's predecessor stated in relevant part: "For VoiceStream's network our receiver sensitivity specification for phone makers is -102dBm with 0 gain/loss at the antenna. Then 8db is accounted for with fading losses and UB is applied for head/body user loss. After factoring in the variables, this results in a value of -91dB[m] signal strength, which VoiceStream uses for on-street cover- age."14 This is indicative of industry practice employing a reliability margin; Omnipoint/T-Mobile, for instance, more recently has utilized a 9dB fade margin, resulting in a -90dBm on-street goal. This -90dBm (or Concord's -95dBm) level in a yard or outside a vehicle almost always means an even lower signal inside a vehicle and even less inside most buildings. MetroPCS cover- age plots show its desired -88dBm level. In addition to the MetroPCS goal, I also show the previously mentioned -90dBm "on-street" level on my plots, as well as -95dBm which may also provide street service, albeit somewhat less reliably. Failure to achieve MetroPCS's minimum level does not mean there will be no coverage, but rather means there will likely be decreased reliability. 4.e. Adequate Capacity should be considered to the extent that it relates to coverage. While we are initially concerned about the ability of one user to establish and maintain a connection, increasing numbers of users may tax the ability of the cell to handle additional traffic. A sys- tem at maximum capacity would result in a situation comparable to getting a busy signal on a wired phone. In the dynamic wireless environment, the practical outcome of heavier traffic is that the cell size may effectively shrink. A method taken by some providers uses a 10dBm differential to illustrate what is termed "soft measure of capacity" due to cell "breathing" of the network from increased user access. In other words, coverage at the -88dBm level may ef- fectively shrink to -78dBm coverage under heavy loading, so base station coverage can be quite dynamic as the number of users varies. 4.f. Coverage plots are for reception of the signal transmitted from the tower, known as the forward-link coverage. In the case of communication between a base station and a hand- held phone, signal from the phone (the reverse link) presents a greater challenge. Keep in mind that the links must work in both directions in order to have successful communication. However, calculating and mapping the reverse link is more difficult due to variability in user devices, so forward-link study parameters are chosen to accurately predict the overall two- way situation. In addition to continuous service along principal roads, the expectation of in- building/in-residence service is increasingly taken for granted. While original cellular custom- ers in North Andover employed higher-power portable phones, proliferation of pocket phones and digital devices challenges communication with base stations. 4.g. Adequacy of other providers should be examined, but not used as reason to deny. The TCA limitations include the provision that local "regulation...shall not prohibit or have the ef- 13 The dBm is a power level expressed as decibels("dB")above one milliwatt. The dB is a logarithmic unit used to characterize a ratio(difference). In the case of RF power, if the second level is twice as much power as the first, it is 3dB higher; if the second level is ten times that of the first, it is 10dB higher; if the second is a million times the power of the first, it is 60dB higher. As can be seen,the use of decibels enables describing very large power ratios with modestly sized numbers. Note the use of negative numbers, so that-90dBm is 5dB stronger than -95dBm. 14"VoiceStream's Protest Memorandum Relative to§7.8.2.2. 'Adequate Coverage'as Defined in its Bylaw." Submitted to the Town of Concord, 5/17/01. 4 fect of prohibiting the provision of personal wireless services.05 (Emphasis added.) This is consistent with the underlying basis for the TCA to encourage service competition. 4.h. Where there must be adequate coverage is another point of FCC and Congressional ambiguity. Court decisions originally indicated there must at least be adequate coverage on principal roads. The Third Circuit Court offered this guideline in its Ho-Ho-Kus decision: "We think it matters a great deal, however, whether the 'gap' in service merely covers a small residential cul-de-sac or whether it straddles a significant commuter highway or commuter railway. Unlike a utility such as electrical power, cellular service is used in transit, so a gap that covers a well-traveled road could affect large numbers of travelers-- and the people who are trying to communicate with them. Over the course of a year, the total disruption caused could be quite significant."16 At a minimum, the Route 125/133 travel corridor is a principal highway, as evidenced by traf- fic data,17 and it should enjoy coverage without a significant gap. Although "significant gap" may seem somewhat subjective, consider that to a user, even a small gap might cause a call to be dropped that will not automatically re-establish itself even when the caller exits the gap. Importantly, tremendous subscriber growth since the Ho-Ho-Kus decision means users ex- pect more widespread coverage than just along principal highways. A 2005 decision in the U. S. District Court for New Hampshire 18 was instructive in confirming that in-building/in-home service is also an important consideration: "In evaluating the extent of a gap in coverage, courts have considered the availability of both in-vehicle and in-building service. See, e.g., Sprint Spectrum. L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999). Therefore, the [Dunbarton]ZBA's conclusion, based on town counsel's representation, that in-home service was not pertinent for purposes of satisfying the requirements of the TCA was legal error and was also inconsistent with the evidence of record.19i 4.i. The issue of whether cellphones should be used by driver subscribers clouds the ques- tion of in-vehicle service. Many drivers employ hands-free phones and some devices can re- ceive data without any interaction with the driver; furthermore, passengers often are the in- vehicle users. Therefore, in-vehicle service should be considered a valid MetroPCS goal. 4.j. Questions are often asked regarding alternatives, such as satellite phones and roaming coverage. The former is useful for those who must have coverage virtually anywhere in the world, but satellite phones and rates are expensive. Moreover, TCA provisions must be met without regard to availability of satellite service. Roaming coverage allows users to maintain and initiate wireless service when they leave the coverage area of their home provider, albeit at possibly higher cost. Often, the licensee for the subscriber's operating frequencies will change between different geographical areas, and roaming allows seamless— usually auto- matic— coverage for the mobile user without regard to who holds the license. Being able to 1s 47 U.S.C. § 332(c)(7)(B)Limitations:(i)(II). See Appendix 1 for the entirety of TCA Section 704. 16 Cellular Tel.v. Zoning Bd. of Adj. of Ho-Ho-Kus, 197 F.3d 64(3rd Cir. 1999). 17 Merrimack Valley Planning Commission, History of Average Daily Traffic shows 16,955 daily on Osgood Street during May, 2007. The counter point is indicated in Figure 1. 18 U.S.C.O.C. v. Dunbarton, 04-CV-304-JD; 04/20/05. 19 Decision, Footnote 2: "It is true, however, that'[w]here holes in coverage are very limited in number or size (such as the interiors of buildings in a sparsely populated rural area, or confined to a limited number of houses or spots as the area covered by buildings increases)the lack of coverage likely will be de minimis so that denying applications to construct towers necessary to fill these holes will not amount to a prohibition of service.'Willoth, 176 F.3d at 643-44. In this case, the ZBA rejected all evidence of gaps in service to homes and did not find that any such gaps were merely de minimis." 5 take your phone on a cross-country trip is a benefit of roaming, and is also likely to be seen near state lines as outlined in the Pelham case 20 in New Hampshire. (A customer in Pelham may receive roaming service from a Lowell provider due to her or his proximity to the state border.) Another type of roaming —switching between spectrum blocks licensed to different providers within the same area, known as in-market roaming — is not always seamless. It is contingent on two important factors, the first being that the customer has a phone that is multi-mode in a way that ensures compatibility with the other system. According to the FCC, "Another technical consideration in the context of roaming is that, in order for roaming on digital networks to be successful, a customer must have a handset that employs the same digital standard (e.g., GSM or CDMA) as the carrier on whose network the cus- tomer is roaming. Thus, a carrier that uses GSM would not be expected to enter into an agreement with a carrier that uses CDMA, because the customers of each carrier would not be able to access the other carrier's network. This, of course, limits the number of carriers in a given geographic area that can enter into roaming agreements. However, if, in the future, handsets become available that employ multiple digital technologies or software-defined radio capabilities, this may reduce or eliminate technical impediments to the subscribers of any carrier roaming on any other carrier's network.'21 In view of the above FCC technical consideration, it is my opinion that roaming should proba- bly not be considered a viable alternative for adequate coverage. 4.k. Finally, in spite of any power increase from the base station, return signal from hand- held phones can only be increased a small amount'22 so the base station's ability to "hear" or receive adequate signal limits the usefulness of increasing base station forward power. 5. DEMONSTRATION OF NEED— SPECIFIC CONSIDERATIONS 5.a. Figure 1 is a shaded-relief map showing the planned and alternate North Andover sites, along with the proposed facility location. 5.b. For the propagation study (Figures 2-8), a grid of 14,257 equally-spaced study points (each one 50 meters23 from the next) was employed over the 13.8 square-mile study area consisting of the northern portion of North Andover. Resulting coverage plots are for signal transmitted from the tower, known as the forward link. Industry practice is to employ suffi- cient loss margins to reliably guarantee useful signal. In this case, the supposition was that results are indicative of 95% of the locations at that point.24 Percent-of-locations is a reliabil- ity indication, meaning that it can be assumed that the majority of locations (at the particular study "square")will receive that signal level. 5.c. Each coverage plot displays three signal levels25 and the weakest/lightest (-95dBm) is the minimum considered useable by many providers for coverage under good conditions. 20 Second Generation Properties, LP v. Town of Pelham, 2002 WL 31819852(1st Cir.2002). 21 See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, WT Docket No. 05-265, Notice of Proposed Rulemaking,147; 8/24/05. 22 In many areas of poor coverage,the base station may already be setting the handset to full power output. 23 A 50-meter distance is approximately 164 feet. This distance was used for graphing purposes; note that for the study, the terrain data was sampled every 30 meters for greater accuracy. 24 Grid spacing of 50 meters means each study point represents an area of 0.618 acres; there may be some signal variation within an area that size. 25 Remember the earlier discussion of negative numbers: -88dBm is 10dB weaker than-78dBm. The legend parenthetical number indicates the number of study points that meet the specified signal threshold. 6 The middle level is for-90dBm and will work well in out-of-door and most vehicle situations. The strongest/darkest (-88dBm) level corresponds to the MetroPCS goal shown on its maps. Remembering the discussion at 4.d., failure to meet any threshold does not mean there will be no service, but makes it likely that calls will be more difficult to place and maintain with quality acceptable to most users. 5.d. Figure 2 shows AWS coverage from neighboring sites; this plot shows only the -88dBm level used by MetroPCS and for the most part is comparable with the applicant prediction of coverage without the proposed facility.26 Figure 3 shows existing coverage with addition of the -90dBm and -95dBm levels. Keeping in mind the discussion of capacity at 4.e., indicated -95dBm coverage may effectively shrink 27 to the -88dBm coverage (or possibly even less) when there is heavy user traffic. So while Figure 3 doesn't look as unfavorable, areas with lighter shading cannot be considered to have consistently reliable coverage, particularly in- side buildings and when there is heavy network traffic. Therefore, it can be concluded that there are significant gaps along Routes 125/133 as claimed by the applicant and indicated on its mapping. 5.e. A valid question is whether neighboring cells can be adjusted to close the gaps. One method almost always impractical is to increase transmit power at the other sites; while this might improve outbound signal, the talk-back situation remains unchanged, plus there may be an issue of interference to other cells. Coverage and interference both become issues if the sector antenna gain and orientation are changed; in other words, we might modestly help some areas with an antenna change, but at some cost to the system elsewhere. Therefore, I conclude that the other MetroPCS cells cannot be adjusted to help. 5.f. Figure 4 shows the coverage of only the proposed facility, which covers the problem area well. Figure 5 shows the aggregate of proposed coverage along with that of the other cells, and for the most part this closes the coverage gaps. Note that the legend indicates how many study points (of the 14,257 total) meet the particular signal-strength threshold. 5.g. Figure 6 shows the coverage likely from a facility at the Stevens Estate (ALT1). There is already a collocation flagpole facility there which, as pointed out in an applicant submission, appears unable to accommodate additional antennas. The supposition was that a second structure would be located approximately 500' east of the flagpole and high enough to give adequate tree clearance. Although ALT1 has favorable ground elevation, it is almost a mile from the proposed site and unable to adequately fill the coverage gap. Indeed, its coverage footprint is far enough away that it might prove to be a good location for a second facility, al- lowing the applicant to completely close the gap along Route 125 in the northern portion of the Town. 5.h. Figures 7 and 8 show coverage from using the 1 High Street smokestack (ALT2), and the 21 High Street smokestack (ALT3), respectively. The latter has about a 20' height advan- tage, although both would provide comparable coverage. Due to being higher and closer than the Church, both would more effectively close the Routes 125/133 coverage gap south of the Sutton Street intersection. However, there are two problems with either smokestack: 26"Proposed Coverage Without BOS0380C"submitted with the application. 27 The signal strength does not literally decrease; rather, the effective area of useful communication shrinks. Although how this works depends on the modulation scheme, capacity-challenged coverage reduction is common to all systems and providers. 7 First, it isn't clear that either is available. Second, both would require surface-mount anten- nas— perhaps with standoffs to allow sector aiming —which would be more visible than the antennas hidden in the steeple. 6. RADIOFREQUENCY INTERFERENCE & (NON-IONIZING) RADIATION 6.a. The FCC has requirements relating to RF interference, primarily between licensees. In- terference is unlikely beyond the calculated blanketing zone, which is just a few feet for power levels anticipated. Interference is always possible, particularly with poorly designed consumer electronics equipment, but unlikely. Nonetheless, it is impossible to state with ab- solute certainty that there will never be interference to nearby electronic equipment. Signifi- cant to this proceeding is that Town authority to regulate regarding interference was effec- tively preempted by the refusal of the U. S. Supreme Court to hear the Freeman case.28 6.b. Each licensee must also comply with FCC RF radiation exposure requirements for the general population, as well as for employees and contractors with antenna access. The ap- plicant submitted an analysis by Dr. Donald L. Haes, Jr.29 to demonstrate likely compliance with FCC guidelines regarding Maximum Permissible Exposure ("MPE") to RF radiation. Dr. Haes made ambient measurements and then calculated the additional exposure likely from activation of the proposed facility. (Some of his assumptions are addressed by the Local Of- ficial's Guide 30 published by the FCC.) Note that if we were to directly face one of the trans- mitting antennas, MPE would normally be exceeded only within 5 or 10 feet; otherwise, expo- sure on the ground and other public areas will continue to be substantially below the FCC guidelines after activating the proposed facility. Accessibility is the key to MPE compliance, so restrictive measures are important and, in the case of a steeple (concealed)facility, a pro- cedure must be in place to make sure no worker approaches the area immediately outside the antennas during painting or other maintenance. The applicant should engage the land- lord to ensure adoption of a worker-safety program. 6.c. The Massachusetts Department of Public Health discontinued its notification and ap- proval requirement for RF sources in 2002. Beyond addressing the above-referenced safety issues, the Town cannot regulate the placement of the facility on "environmental" or health grounds, although it can seek demonstration of compliance using guidelines of the FCC Of- fice of Engineering Technology Bulletin 65. 28 Freeman, et al.,v. Burlington Broadcasters, Inc. et al., Petition for Writ of Certiorari to the U. S. Court of Ap- peals for the Second Circuit; denied October 2, 2000. 29 RF exposure study by Donald L. Haes, Jr., Ph.D., CHP, dated 11/11/08. so A local Official's Guide to Transmitting Antenna RF Emission Safety. Rules, Procedures, and Practical Guid- ance(June 2, 2000), available at http://wireless.fcc.gov/siting/FCC_LSGAC_RF_Guide.pdf (The LSGAC is a body of elected and appointed local, State, and tribal government officials appointed by the Chairman of the FCC. It provides advice and information to the Commission on key issues that concern local and State gov- emments and communicates State and local government policy concerns regarding proposed Commission actions.) 8 7. CONCLUSIONS AND PROPOSED FINDINGS OF FACT 7.a. MetroPCS is not able to provide adequate coverage along Routes 125/133, and areas near the Trinitarian Congregational Church, using spectrum for which it is licensed by the FCC. 7.b. MetroPCS is unable to use nearby sites to provide coverage to its inadequately-served area(s). Roaming, or the use of services that might be available from competing providers, is not a viable coverage alternative for MetroPCS customers. Repeaters and small-scale an- tenna systems are unable to address such a large area of inadequate coverage, since they are primarily intended to provide fill-in of small gaps. 7.c. MetroPCS has proposed use of the existing Church steeple to mount its antennas, re- sulting in almost no visual impact. Other than a small GPS antenna, the main panel-type an- tennas will be mounted inside, and hidden by, the steeple louvers. The existing louvers will be replaced by new ones which, while visually the same, are transparent to RF signals. 7.d. MetroPCS has examined three alternate sites: The Stevens Estate is too far away to close the southern-most coverage gaps along Routes 125/133, and would require a new sup- port structure. The two smokestacks appear viable from the standpoint of RF issues. How- ever, it is unclear that either is available. Furthermore, both would require antennas which would be more visually obtrusive than the proposal for panel antennas concealed inside the church steeple. 7.e. MetroPCS will be in compliance regarding RF radiation exposure as long as it is able to restrict access to the antennas, primarily with regard to construction or maintenance person- nel who might work on the steeple. MetroPCS needs to outline how it will demonstrate com- pliance if and when the facility is activated. 8. STATEMENT OF MARK F. HUTCHINS 8.a. I am a Radiofrequency Engineer and a former broadcast station owner and communica- tions site landlord. I obtained my first FCC license in 1965, and currently hold lifetime FCC General Radiotelephone Certificate PG0111356. 1 am a 37-year Senior Member of the Soci- ety of Broadcast Engineers ("SBE"), Certified (#1098) as a Senior Broadcast Engineer by the SBE since 1977; 1 have served as Vice-Chair and Secretary-Treasurer of the Boston Chap- ter. I am an 11-year Member of the Institute of Electrical and Electronics Engineers ("IEEE") and the IEEE Microwave Theory & Techniques Society. 8.b. Over more than 40 years I have prepared numerous FCC applications. Well versed in facility collocation and interference issues, I am an Accredited Frequency Coordinator for FCC Part 74 spectrum below 2 Gigahertz for the State of Vermont—a position I have held for the past 16 years. I am experienced in RF design and analysis, and my clients have included many FCC licensees and government entities. 8.c. I chaired the engineering panel for the 1996 Vermont Law School international RF/Microwave Conference, and was one of two independent engineers who assisted the 1997 FCC radiation study of the multiple-emitter Mount Mansfield communications site. The 9 Vermont Environmental Board submitted results of my RF studies — crucial to land use permit decisions —to the FCC in two Rulemaking proceedings. The National League of Cities and the National Association of Telecommunications Officers and Advisors cited my comments in one of these FCC proceedings to support their reply comments. I authored the chapter on RF exposure prediction and measurement for the book "Cell Towers: Wireless Convenience? Or Environmental Hazard?" published in 2001 (ISBN 1-884820-62-X). 8.d. Numerous local, regional and state planning bodies have employed me to review facility applications and conduct workshops. I have submitted evidence and been qualified to testify before municipal bodies, district environmental commissions, the Vermont Environmental Court, and state and federal courts. U. S. Senator James Jeffords invited me to meet with FCC Chairman William Kennard and Vermont leaders prior to 1998 meetings in that state on tower siting, and subsequently to brief Congressional staff in Washington on siting issues. I regularly assist in development of regulations, and perform wireless telecommunications planning. I work primarily for municipalities, reviewing wireless facility applications. Neither myself individually, nor my corporation, have any business or financial relationship with MetroPCS or any affiliate. I no longer accept site-acquisition work on behalf of any PWS pro- viders or tower developers, and have not done so for over nine years. 8.e. This analysis was prepared personally or under my direct supervision. [ORIGINAL SIGNED] Mark F. Hutchins 10 s C� 7 F .. - - Alm. ifWaTeml Scale in Miles *BOS021 Forward Link SignalStrength, Below-88 (10160) .A m - 1 n 1 :• 1 1• Coverage Scale in Miles Forward Link Signal :• 1 , , - dBm 1 w-#FlE is I Below -95 (8494) r, 71 • 1 1• ��„F? e f�rcp ► BO FIGURE 3 - MetroPCS AWS Existing-Site Coverage .. a � � r Scale in Miles Forward Link Signal Strength, • : : : &Above • •1 to :: • 5 to Below-95 (9414) pA ,s:A a 1. PROPOSE ♦Y r: Proposed-Site Coverage Scale In Miles 0 1 2 3 4 Forward Link Signal sBOS0211 Strength, dBm ® -88 &Above (5346) I'. q -90 to -88 (372) 3 5 -95 to -90 (998) Below-95 (7541) BOS0206 PROPOSED BOS0209 \ --� / FIGURE 5-MetroPCS AWS Existing & Proposed Coverage Scale in Miles Link Signal Forward OBOS0211 Strength, t � -95 ^' • •1 • 1 Below -95 (6671) e - P7 mai • 1 t. BOSO t. • ®fir - . - Scale in Miles Forward Link Signal OBOS0211 . : 1 •1 to :: Below-95 (7565) 5 � Coverage Scale in Miles A Forward • e. Link Signal d 1 FStrength, dBm :: & A (5524) bove •0 . . Below 0 BOS0206ur t' n � f•8 x a -s �BOS0209 ` ®� - Coverage APPENDIX 1 Section 704 of Telecommunications Act of 1996: Text from 47 U.S.C. § 332(c)(7) (7) PRESERVATION OF LOCAL ZONING AUTHORITY. (A) GENERAL AUTHORITY. Except as provided in this paragraph, nothing in this Act 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 (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof (1) shall not unreasonably discriminate among providers of functionally equivalent services; and (11) 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, construction, and 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 a State or local government or any 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 any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C) DEFINITIONS.-- For purposes of this paragraph (i) the term "personal wireless services" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term "personal wireless service facilities" means facilities for the provision of personal wireless services; and (iii) the term "unlicensed wireless service" means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)). i DRAFT ] 1 Town of North Andover 2 Planning Board 3 Minutes of the Meeting 4 December 2, 2008 5 Town Hall, 7:00 PM 6 7 8 Members present: John Simons, Chairman 9 Richard Rowen, regular member 10 Timothy Seibert,regular member 11 Michael Walsh, regular member 12 Courtney LaVolpicelo, alternate 13 14 Member absent Jennifer Kusek, regular member 15 16 Staff present: Judy Tymon,Town Planner 17 Mary.Ippolito, Recording Secretary 18 19 20 21 Chair called the meeting.to order at approximately 7:10 PM. 22 23 Chair announced the following POSTPONEMENTS: 24 25 • John Cahill— 166 Salem Street,Map 371),Parcel 21. Definitive Subdivision known as 26 The Captain Nathaniel Berry Homestead,consisting of a new 292 foot long roadway and 3 new 27 proposed lots each containing 25,000 s.f.&existing lot containing 32, 174 s.f. with existing 28 single-family dwelling within R-3 zoning district. Meeting not closed. Waiver on file until Feb 29 of 2009 30 31 • John Cahill—166 Salem Street,Map 37D,Parcel 21_Watershed Special Permit to 32 construct a new 292 foot long roadway and 3 new single-family homes,portions of the roadway, 33 one house and a storm water detentionlinfiltration basin will be within the non-discharge buffer 34 zone.M_ eetin not closed.Waiver on file until Feb.of 2009 35 36 • 674 Turnpike Street,Theodori Londi, Site Plan Review Special Permit to allow 37 for demolition of a 2 story residential dwelling in order to construct a 2,800 s.f. 38 Commercial building consisting of 1,400 s.f restaurant and 1,400 s.f retail within CDD2 39 . zoning district. Waiver on file until Dec. 16, 2008, PD will request a new waiver. 40 41 • Discussion only with Merrimack Valley Planning,Dennis DiZolio discussion 42 regarding"Priority Growth Strategy". 43 44 45 Chair called for the following DISCUSSIONS: 46 47 • Town of North Andover,propose to construct a modular school, 13K s.f. i 48 adjacent to the Atkinson School within R4 zoning district. Ben Gary, Engineer presented Page 1 PB Minutes of the Meeting December 2, 2008 / DRAFT 1 landscaping plan tonight. Will save trees at closest comer to Chickering Rd.,.added 2 evergreen,red-maple for shade and planting in front of building, seeding will be done. 3 Foundation will be a crawl space. Keep stripes on parking lot for now. 4 5. Town has a short time frame to get ready for 2009 school year. Modular building will be 6 assembled at the location. Pat Saitta present tonight. Sargent and Franklin has approx. 7 7 or 8 classes of pre school children. $4M budgeted for this project. Ben Gary presented 8 proposing to use existing wooded area to place new Pre-K school. Right tum only 9 coming out onto Chickering Rd. Over 100 feet from wetland.. Looped around driveway 10 for buses to drop off and for parents to pick up. Diverting catch basin for flow. Internal 11 drains for roof and premiter drains. Hydrant to be close to the school at comer of 12 building. Gas and electric connected. Security lighting presented. Play equipment for 13 the children enclosed ina.fenced area.At 400 feet located a swail around building from 1 14 foot to 4 feet to catch over flow form catch basin. . 15 16 . Judy submitted a letter for the record from Ben Gary to Gene Willis dated December 1, 17 2008 ....see item 2 regarding drain pipe,Mr. Gary will redesign access and confirm exact 18 location to avoid problems. Gene Willis doesn't want them to pick up 12-inch pipe: and 19 keep other pipe at 15 inch. Clean out and make sure Mr. Gary has extra clean out and all 20 of this will be incorporated into the site plan. 21 22 23 MW asked what is traffic flow? Dismissal times at adjacent schools are between 2:10 �= 24 PM and 2:40 PM won't affect the traffic flow of the Pre-K School, not much congestion 25 only about 6 cars use this area now. Submitted picture for the record. Pax Saitta 26 explained the look of the exterior of the school. Flat roof;roof top air-conditioning units, 27 elevation of roof was discussed. Chair will issue a letter saying we find this to be a good 28 project we recommend the following.......as they go thru the development process, issue 29 _ this letter at next PB meeting. 30 31 Eric Asvestas, 36 Water Street,will parents have to pay for this? It was explained to Mr 32 Asvestas that there are special needs students and role model students;role model 33 students have tuition requirements and limited amount of spots available for a monthly 34 fee. 35 36 37 Chair called for the following discussion: 38 • Boston Hill project,Turnpike Street,Paul Marchionda is making refinement . 39. to site layout and building design and address concerns with parking and building 40 massing. 41 42 Paul Marchionda presented;parking in front of building and size of building itself are 43 issues tonight. 25 feet lay out line from edge of Rte. 114, grading out base of 5 feet high 44 wall,limited with build out because of Con/Con issue. Will landscape parking lot to 45 dress up site from the street.Building is only one elevation. Paul Shatenau,Architect, 46 stated common space is located on first floor because it's easily accessible. He finds that Page 2 PB.Minutes of the Meeting December 2, 2008 DRAFT 1 when you break it up it makes it more complicated for the residents. Applicant stated he ` 2 will reserve some parking space for future use. Judy wants as much landscaping in the 3 front area disbursed among parking spaces. Make more landscaping at unused parking 4 spaces in from Dermott Kelly will submit a traffic study. Phase one is now done. 5 6 7 Chair called for BOND RELEASE: 8 9 • Brooks School, 1160 Great Pond Road, Site Plan opening bond$l OK and 10 Watershed Special Permit bond$2K constructed a science building. As-built and letter 11 from Engineer submitted. Applicant wishes to donate this cash bond to the Town of 12 North Andover. Judy read a letter from the headmaster of Brooks School who graciously 13 wishes to donate their$12K back to Town as a gift. Chair stated let the Tribune know. 14 PD submitted letter from engineer and as built was submitted,no issues with DPW 15 Engineers. Motion by MW to release and close out Performance G bond for$12K, 2nd by 16 RR, vote unanimous 5=0. 17 18 19 20 Chair called for CONTINUED HEARING: 21 22 • Bank of America, 154 Main Street, Map 41, Parcel 33 =Site Plan Review 23 Special Permit to expand existing parking by removing the rear drive-through aisle and 24 increase the parkingarea to accommodate an additional six parking spaces for a total of 25 18 parking spaces within G-B zoning district. Meeting not closed.Decision drafted. 26 27 Judy drafted decision PB reviewed it....edits ...numbering is off 1 &2 and jumps to 5.... 28 Say after completion of construction .... .29 30 Motion by MW to close public hearing 2nd by RR, vote was unanimous 5-0. 32 Motion by RR,to approve a Site Plan Review Special Permit as amended,2nd by MW 33 vote was unanimous 5-0. 34 . 35 36 Chair called for NEW PUBLIC HEARING: 37 38 • Metro PCS,70 Elm Street, Special Permit,proposes to install 6-panel antennas 39 at a centerline of 80' in existing church steeple and related BTS cabinet within R-4 40 zoning district. 41 42 Judy explained this is a Public Hearing for a SP required by wireless bylaw for 43 installation of any wireless facilities. Board member Tim Seibert stated he will recuse 44 himself from sitting on the Board and moved into the audience. Plse. note: now 45 there is only Simons, Rowen,Walsh and Courtney to hear this petition. Chair 46 explained the procedure relative to this hearing. Page 3 PB Minutes of the Meeting December 2, 2008 DRAFT 1 2 Atty. Karen Simao was present to represent Metro PCS tonight. In the event that Atty. 3 Simao doesn't continue then Atty. Peter Morin will be here to do so. Bill McQuade, 4 consultant, Mathew Boles, consultant, and Franz Pierre, RF engineer are also present 5 tonight. Donald Hayes, was not available this evening. Mr. Mark Hutchings, RF 6 Engineer, will be doing a safety report obtained by the Town. Time is 8pm. 7 8 Mr. McQuade spoke proposing to mount antennas behind louvers, in line of 80 feet in 9 church, equipment placed in basement, only replaced louvers, other than that no other 10 exterior changes. Chair asked what is coverage gap,what is need, etc? 11 12 Mr. McQuade submitted waivers tonight, and has alternative structure report to submit. 13 which were not included in PB packet. 14 15 RR asked is the church well aware of what is being proposed? Mr. McQuade stated yes. 16 17 Franz Pierre demonstrated where the gap in coverage is, with colored dots. Look at white 18 area there is no coverage, green is where proposed coveirage will go. Next page shows a 19 very large green area with coverage, with one small area 70 Elm St. where church has no 20 coverage at all,by connecting the dots on the sites it provides more coverage. Next map 21 showed once the church is connected to the green area an entire area will have coverage 22 to Town of North Andover and connecting to other Towns. 23 24 Judy asked if there may be other carrier facilities in the area, and if they provide Metro 25 PCS with coverage? Mr. Pierre stated other carriers are flagpole on top of hill on Rte. 26 #125, Stevens Estate, this pole is full, and there are 3 other carriers on this pole and no 27 more can co-locate there. Judy asked if frequency band is covered by another wireless 28 facilities? Mr. Pierre stated Spectrum. 29 30 Mr. McQuade said no ground space is available for Metro PCS. Smoke stack located 300 31 yards from 70 Elm Street church; its not commercially available landlord has no interest. 32 It's more preferable for a concealed facility versus a brand new tower facility. 33 34 Judy stated VHB will do a review, and Mark Hutchings, an RF Engineer will also do a 35 review of Dr. Hayes report, coverage analysis, and alternative analysis. Mark Hutchings 36 was recommended by VHB and received a scope of work'and estimate which will be paid 37 for by the applicant. Hope to have this ready for next PB meeting. The Telecom.Act of 38 1996 says health cannot be taken into consideration. Dr. Hayes will attend a community 39 meeting Monday(December 15),however, location of meeting was not discussed? . 40 41 MW asked does this application agree with the guidelines? Atty.Simao stated 42 absolutely. Mr. Pierre stated based on Dr. Hayes report stated RF is less then 1 10`h of a 43 percent,which is below the FCC guidelines. See report for the record. 44 45 RR asked where do you measure? Mr.,Pierre stated measure at a building do it 90 days s 46 after installation to take measurement. RR asked show a diagram of strongest signal and Page 4 PB Minutes of the Meeting December 2, 2008 DRAFT 1 vertically show significant drop off and show how radiation map changes horizontally 2 and vertically. Mr. Pierre stated in Dr. Hayes report on page 8 it shows distance of 3 horizontal. RR wants to see the vertical? Mr. Pierre stated he has this information in Dr. 4 Hayes packet. 5 6 Judy stated does installation fall within FCC guidelines? Our engineer will do a report. 7 8 Chair wants the waiver request explained. Mr. McQuade submitted waiver for Site Plan 9 Review, see waiver submitted. 10 I 1 Judy met w/Chair person of Historic Society Kathleen Szyska,regarding alteration being 12 excluded from review,.they looked at information brochure and they want to see a piece 13 of that equipment to discuss request for exclusion from review and take action at that 14 meeting. Mr. McQuade requested a determination from Building Inspector in the mail on 15 November 6b,now Con/Com wants to have a review. He will send a sample of the 16 material to the office in a week and Mr. McQuade will attend the meeting on Dec. 15f. 17 Chair spoke on regulation of wireless facilities. North Andover has a bylaw in place to 18 do this for visual and safety impact regarding freestanding structures and towers in place 19 and filing requirements etc. There is preference to co-locate versus building a new 20 wireless structure etc. Atty. Tom Urbelis provided a set of checklists for PB and carrier 21 and applicant has to provide information in their application etc. 22 23 Cindy Allen, 45 Elm St., applauded at what hashappened,this came up a few years back, 24 went before PB at this church and they dropped the idea of putting cell antennas in, so 25 she knows that health can't be taken into consideration,she.finds that for every one study 26 presented there are no health effects, she can also find another study that says there is 27 health effects. 15 years after putting these antennas in a variety of places,now we have 28 to pull them out.--Number of studies going on now,people need to understand the facts. 29 You can take into,account property value,if you have two houses of equal value one is 30 opposite church without cell tower, other proper has-a cell tower,which are you go to 31 choose? Buyers want to know if there are cell towers in close proximity this needs to be 32 disclosed. It's within the PB4s consideration to take into account property value. 33 34 Chair stated if property value will diminish then the PB needed to see documentation 35 specifically stating the property value has been dimished. 36 37 Ms Allen.wants to.make the Church aware this is going to alienate the Church, if cell 38 tower was within the Church she would never have sent her son to that Church/school . 39 how can the Church'alienate its neighbors? She will picket this on her lawn. She cannot 40 believe the church will have the almighty buck take precedence over almighty God. 41 42 Jim Gordon, 500 Rea St.,were trustees of parish aware of changes made to structure? He 43 suggested PB require a certified vote ftom Board of Trustees authorizing them of making 44 this assertion. When is the discussion of the waiver going to take place? He feels a Site 45 Plan Review of Section 8.3 should be warranted. Chair stated Section 8.9 Special Permit 46 is in front of PB tonight. Page 5 PB Minutes of the Meeting December 2, 2008 DRAFT. 1 _ j 2 Mr. McQuade stated Stevens Estate has no longer any capacity for Metro PCS to 3 collocate there. 4 5 Mr. Gordon is concerned about this process at Town Meeting, he thinks the Town should 6 be looking at ways to work with people. Property values were brought up tonight-then 7 provide appraisals, the PB might want to look into this,what will be the impact on real 8 estate? Town should be seeking advice on this issue keep nagging at PB and BOS that 9 could be resolved if everyone gets on same track. Cell Tower Committee was organized 10 to look at this issue and nothing came out of it. Nothing coming out of present 11 committee? Someone needs to take charge to address this thru a vehicle and the PB in 12 conjunction wBOS should.come up with something that can or can't happen regarding 13 these cell tower committees. 14 15 Bill Gordon,.25 Garden St.,what is Metro PCS? Mr. Pierrce stated they have locations in 16 Dallas,New York, Georgia, etc. it's second largest carrier. Mr. Pierre explained the 17 coverage map again. Does Town want another tower there? Mr. McQuade stated the 18 Stevens Estate has no capacity, Town is looking for collocation on existing structure, 19 Town is not looking for new towers. Mr. Gordon stated it would be a good thing to 20 investigate why Metro PCS is taking easy way out and it's gong to have a greater impact 21 on the Town if they put cell antennas in the Church. Bylaw regarding residential setback 22 how many feet? Church doesn't meet setback issues?it's pre-existing non conforming. 23 Mr. Gordon submitted written lawyers opinion to Judy for the record tonight. 50 children (' 24 in this neighborhood living in this area and living within 300 feet of this cell tower. 25 Abutters list is incomplete. Raised health as issue because of cell tower's interpretation 26 of the wording he knows of 100 signature petition who are not in favor of this . 27 application. 28 29 Thea Fournier,247 Main St., Town has a right to site where antennas and cell towers will 30 be placed, and can't prohibit cell tower coming into this Town. Documentation from 31 realtors indicates there is 10 to 30 percent in devaluation of property value once tower 32 goes into effect. Mix up of interpretation of bylaw,two churches turned down antennas. 33 Mass Ave. church passed thru Building Inspector saying it was pre-existing,his 34 comments are illegal. Please note that Ms Fournier's further comments were not audible. 35 36 Chair asked Thea to put this in writing, give this to us now or later? Thea stated 600 feet 37 setback should.be required,whether it be a church or not. 38 39 Chair said put this in writing and we'll have attorney review it. Gerry Brown has 40 authority to make a determination, which was not appealed. Chair advised Thea to make 41 the argument in writing and have an attorney do it for her. Thea thinks this is a legal 42 issue. 43 44 Liz Fennessy, 77 Ehn St., submitted a letter to Judy, if abutters were not properly notified 45 what is protocall? Judy presented a certified abutters list which was certified by the Page 6 PB Minutes of the Meeting December 2,2008 DRAFT 1 Assessor and dated 2008. Judy also had the packet of certified mail receipts stamped by ' 2 U.S. Postal services as proof that certified mail was sent to each abutter on the abutters 3 list. 4 5 Ms Fennessy feels bylaw is subject to interpretation and doesn't understand the 600 feet 6 setback, Should this go to ZBA for review? Chair stated he will go to the Building 7 Inspector and ask for interpretation of Bylaw and if anybody disagrees with this they can 8 appeal it. Ms Fennessy feels a new tower should be built at Stevens Estate for the Town 9 to get the revenue instead of collocating it at Elm Street steeple. She wants to know 10 about the December 15th neighborhood meeting? She only heard about it a-week ago. 11 12 Diana Warren, Wayland, Mass, stated a letter of authorization signed by the church but 13 no lease agreement was submitted? There is no binding contract yet?Chair stated,by the 14 time PB makes their decision then that would be able to take place. Ms Warren stated 15 that Town Counsel's analysis is a slanted view from Town Counsel who works for BOS, 16 she urged.PB to hire their own counsel. Chair asked for this in writing. She said she 17 will. You need to know coverage of all other carriers in the Boston area to make a 18 determination. Seeton 704 no municipal can inhibit communication services. FCC 65108 19 it's on docket to close loophole, if there are carriers in area that provide service then 20 communication services is being provided,so you don't have to approve Metro PCS then. 21 22 MW asked about prohibiting decimations from one carrier to another? Ms Warren read 23 Dr. Hayes report and found it inaccurate and incomplete. Chair asked.if she is willing to 24 submit all of this in writing. She said she will. She said thisis not a co-location site. 25 Coverage maps give a false impression,but you didn't get complete documentation. She 26 said they aren't showing a large enough area how far do you go before you hit another 27 Metro PCS facility? She said citizens have to provide reports; lawyers,professionals,but .28 case law indicates under TCA indicating this is not the case. She urged PB to hire their 29 own counsel: Chair asked who would pay for it? 30 31 Chris Lathrop,27 Church St stated confirm that the smokestack was not commercially 32 feasible? Wants to see receiving signals on a map. He wants copy of Dr. Hayes report. 33 Mr. McQuade stated that the smoke stack structural analysis was not available because 34 the owner had no interest in leasing to Metro PCS. Mr. Pierre did a study of the gap 35 coverage,but those alternative sites were not available,he showed them on the map 36 . where they were. Chair wants Mr. Pierre to do more due diligence,and look at Stevens 37. Estate to see if there is any appetite to expand it there. 38 .39 Loretta Wentworth, 15 Pleasant St. real estate agent, stated the average consumer today is 40 aware and concerned about health issues, consumer walks away.if there is gas line or 41 power line,what is the monitory value to the church? Chair stated they are under no 42 monitory obligation it's a private legal matter. Ms Wentworth stated this is a big issue 43 and will affect property values. 44 .45 Eric Asvestas, 36 Water St,.has 4 children and if-this goes thru the whole neighborhood 46 will move he doesn't want this in the neighborhood. Page 7 PB Minutes of the Meeting December 2, 2008 '. DRAFT 1 2 Diana Warran`.stated the FCC will not look to protect that their standards are being 3 followed in North Andover. Donald Hayes report has very little.technical information. 4 She will provide actual reports and PB should ask Metro PCS to provide all of this 5 information. Chair stated we have hired a consultant to handle this. PB should ask Metro 6 PCS to provide technical information, which is required on a State standard level so that 7 Mr. Hutchings will have this information to assess the veracity. Random testing should 8 be done on a random basis by independent engineer. 9 10 Chair thanked everybody for the civil tone of this discussion which makes for a better 11 process; PB is looking for solid verifiable input. Chair announced that the PB will have 12 to meet again on January 6, 2009. PB will not be meeting on December 16th as we won't 13 have the sufficient number of PB members in order to do so. Chair asked Ms Warren if 14 you need to provide information please see Judy. 15 16 Atty. Karen Simao stated that PCS has license by FCC they are charged by FCC to build 17 out their network for coverage sites and NOT capacity sites. Stevens Estate is not a 18 commercially available site,no more room there,it is not available and no RFP was 19 issued and that makes it not available. She obtained a certified abutters list from the 20 Assessor's office,but, Metro PCS would not have gone thru that list and decided who not 21 to send a legal notice to and stated that Ms Warren is a lobbyist. Metro PCS can only 22 provide information in compliance w/existing bylaw and she knows Town wants 23 additional information,but for future decisions Metro PCS will comply with whatever the .24 PB wants them to do,Metro PCS has worked to meet all their requests. Can Judy gather 25 any additional information for the Dec. 15 meeting? 26 27 MW asked who is competition in this area and what is the coverage? Submit coverage 28 from other carriers in this area How much RF homework was done on other sites? 29 30 Thea asked why Stevens Estate would not be available to build a tower?_ Metro PCS put 31 this in writing. Chair will ask if there is any appitite on the part of the Town to do this, if 32 it is limited to one site there? 33 34 Ms Warren stated she is not lobbying she goes to D.C. to educate and inform and 35 illustrate fact that petition is before the FCC that carries under section 7204-then 36 communications services are being provided. Time is 9:50 pm. 37 38 Chair asked Judy to check w/Tom Urbelis on this stuff,Ms Warren needs to.submit her 39 argument in writing when she criticized Atty. Urbelis. 40 41 EWPROMPTU DISCUSSION: 42 Chair discussed that National grid wants to take down trees but some trees do not need to 43 be cut down,put public pressue or e-mail Mark Rees. If more people are opposed it will 44 tighten up. 45 46 Page 8 PB Minutes of-the Meeting December 2,2008 DRAFT 1 Motion to adjourn by RR, 2nd by MW,vote was unanimous meeting adjourned at 2 approximately 10:15 PM. 3 4 5 APPROVE MINUTES OF THE MEETING: 6 November 18,2008 Will have to wait until January 6, 2009 PB meeting to approve. 7 8 PLANNING BOARD MEETINGS: 9 December 16;2008 10* January 6, 2009 11 January 20, 2009 12 13 14 15 16 17 18 19 20 21 22 23 f,.. 24 25 26 By order of the Planning Board 27 28 29 Approved 30 31 Page 9 PB Minutes of the Meeting December 2,2008 n , Jen's edits rV 1/23/09 1 Town of North Andover 2 Planning Board 3 Minutes of the Meeting 4 January 6, 2009 5 Town Hall, 7:00 PM 6 7 8 Members present: John Simons, Chairman 9 Richard Rowen,regular member 10 Timothy Seibert,regular member 11 Michael Walsh, regular member 12 Jennifer Kusek, Clerk 13 • . ..Courtney LaVolpicelo, alternate 14 15 16 Staff present: Judy Tymon,Town Planner 17 Staff absent: Mary Ippolito, Recording Secretary 18 19 20 21 Chair called the meeting to order at approximately 7:00 PM. . .. 22 23 _Chair announced the following POSTPONEMENTS: 24 25 0 John Cahill— 166 Salem Street,Map 37D, Parcel 21. Definitive Subdivision 26 known as The Captain Nathaniel Berry Homestead, consisting of a new 292 foot long 27 roadway.and 3 new proposed lots each containing 25,000 s.f. &existing lot containing 28 32, 174 s.f with existing single-family dwelling within R-3 zoning district. Meeting not -29 closed. Waiver on file until Feb of 2009 30 31 • John Cahill—166 Salem Street,Map 37D,Parcel 21_Watershed Special 32 Permit to construct a new 292 foot long roadway and 3 new single-family.homes, 33 portions of the roadway,one house and a storm water detention/infiltration basin will be 34 within the non-discharge buffer zone. Meeting not closed. Waiver on file until Feb. of 35 2009. 36 37 • 674 Turnpike Street,Theodori Londi, Site Plan Review Special Permit to allow 38 for demolition of a 2 story residential dwelling in order to construct a 2,800 s.f. 39 Commercial building consisting of 1,400 s.f restaurant and 1,400 s.f. retail within CDD2 40 zoning district. Waiver on file until January 28, 2009. 41 42 Chair called for the following vote: 43 Motion by RR to accept the waivers for timeframe from the applicant for decision for 166 Salem 44 St, Vd by JK,vote was unanimous. 45 46 i 47 Page 1 PB Minutes of the Meeting January 6,2009 '0 Jen's edits 1/23/09 1 Chair called for the following DISCUSSIONS: 2 3 • Discussion only with Merrimack Valley Planning Commission,Mike Parquette 4 regarding"Priority Growth Strategy". 5 Mike Parquette presented The Merrimack Valley Planning Commission Regional Growth 6 Strategy/Plan. Each community, including N. Andover,had submitted to MVPC their 7 preferences for Priority Development Sites. For NA, the site is 1600 Osgood St. 8 The Growth Strategy allows communities to work collaboratively on issues such as 9 Transportation, Open Space, Development and Growth Centers. 10 11 MW asked if grant funds are available for redevelopment of downtown areas. Mike 12 responded that there are Downtown Initiative Grants available from DHCD,but they are .13 very competitive. 14 .45- JS asked about the best way for a community to focus on issues.Mike responded that the 16 designation by.the community of Growth Centers, such as 1600 Osgood,is one way to 17 focus the community's-energy. 18 19 Mike also mentioned that the public is invited to contact MVPC with any feedback and 20 questions about the Growth Strategy. 21 22 JS requested that the MVPC presentation be made available on the town's web site. 23 24 - Chair called for the following discussion: 25. Plse.note: Tim Seibert Planning Board member recused himself from the 26 Omnipoint Communications discussion. 27 • Omnipoint Communications,pre-application conference for Wireless 28 Facility application. Attorney Brian Grossman was present to discuss plan to apply for 29 a Special Permit for a Wireless Facility at 70 Elm St. Mr. Grossman stated that he 30 wanted to come before the board so that they would have the opportunity to ask any 31 questions of him regarding the application. He expects to apply in late January or early 32 February. 33 34 Omnipoint is planning to install 4 antennas in the steeple of the church and 3 equipment 35 cabinets in the library room on the ground floor. 36 37 J. Tymon requested that he provide a sample of material for the windows so that it can be 38 reviewed by the Historic Commission. Also needed is a more detailed landscape plan 39 than what was presented on the preliminary plan. 40 41 MW asked whether there was an existing lease agreement with the church? Mr. 42 Grossman replied that the church is in discussion with Omnipoint regarding a lease and 43 that he did not know the current status. 44 45 Thea Fournier of 247 Main St. asked why the Planning Board would allow an illegal 46 application to be presented to the PB. Page 2 PB Minutes of the Meeting January 6, 2009 rr Jen's edits 1/23/09 1 2 JS responded that the Building Inspector/Zoning Code Enforcement Officer has provided 3 a written statement to the PB, stating that any installation of a wireless facility at 70 Elm 4 St. was in compliance with the setback provision of the Bylaw, specifically, section 5 8.9.c.v.2. 6 7 L. Fennessey of 77 Elm St. asked where the Building Inspector received his authority? 8 JS responded that she should read a copy of the statement from the Building Inspector. 9 10 Chair called for the following discussion: 11 The.North Andover School Department Site Plan Review memo. Motion was made by 12 . RR and 2nd by TS to change the wording on the.first page of the Site Plan Review 13 document to read as follows:_"After a public-hearing given.on the above date,the Board 14 recommended the attached conditions be imposed on the project:" The vote was -15 unanimous. 16 17 TS left the meeting. 18 19 Chair called for the following discussion: 20 Zoning-Stormwater Bylaw: J. Tymon provided an update on the progress with the draft 21 of the Town's Stormwater Bylaw. J. Tymon, G. Willis and J. Hughes are currently 22 working on a draft and will have that draft reviewed by both John Smolak and Ben 23 Osgood Sr. Both had expressed interest in the bylaw and had.suggested changes at ATM 24 08. 25 26 Zoning—Downtown.Overlay District: J. Tymon provided the board with an update on 27 the status of the draft of the overlay district for downtown. A consultant had been hired 28 in 2008 to draft the zoning language and had also recommended a layout for the district. 29 A copy of the layout was presented to the board 30 31 JS stated that the Town needs to determine what it wants to accomplish by establishing 32 an overlay district. There is also a need for more outreach to neighbors and abutters. Re- 33 zoning may not be the solution. There are physical limitations to the downtown area 34 (lack of depth,parking). If there is an interested business or businesses that want to re- 35 locate to the downtown area,the zoning should be addressed at that time. This bylaw. 36 needs more work and is not a priority at this point in time. It maybe more beneficial to 37 focus on the area at Elm and High Streets,where recent redevelopment has taken place at 38 the existing mill buildings. 39 40 MW left the meeting at this point. 41 42 Chair called for the following discussion: (else.note: Tim.Seibert, Planning Board 43 member, recused himself and left the panel for the discussion of 70 Elm Street,then 44 returned after the discussion ended). 45 Page 3 PB Minutes of the Meeting January 6, 2009 Jen's edits 1/23/09 1 Wireless application at 70 Elm St., applicant MetroPCS. The board stated that MetroPCS r 2 should make a formal request to the Town regarding the Town's desire to place an 3 additional wireless monopole at the Steven's Estate. This request should be made before 4 the next public hearing for this application. 5 The board also announced that the next Planning Board meeting would be held on 6 January 27th. The MetroPCS public hearing will be continued at that meeting. JS 7 requested an email reminder be sent to the board regarding this date change. 8 9 10 APPROVE MINUTES OF THE MEETING: 11 A motion was made by JK and 2nd by RR to approve the minutes of the November 18, 12 2008 and December 2, 2008 meetings, with one change: the town of residency of one of 13 the speakers at.the December 2 meeting, Diana Warren,was misspelled. The correct 14 spelling is"Wayland".The vote was unanimous. 15 16 PLANNING BOARD MEETINGS: 17 January 27,2009 18 February 3,2009 19 20 Motion to adjourn by RR, 2nd by MW, vote was unanimous.The meeting adjourned at 21 approximately 9:30 PM. 22 23 ;.. 24 25 26 27 28 29 30 31 32 33 34 35 By order of the Planning Board 36 37 38 Approved 39 40 Page 4 PB Minutes of the Meeting January 6, 2009 13 Draft 2/19/09 QM 1 Town of North Andover 2 Planning Board 3 Minutes 4 January 27, 2009 5 Town Hall, 7:00 PM 6 7 8 Members present: John Simons, Chairman 9 Jennifer Kusek, Clerk 10 Richard Rowen,regular member 11 Timothy Seibert,regular member 12 Michael Walsh,regular member 13 Courtney LaVolpicelo, Alternate 14 15 Staff present: Judy Tymon, Town Planner 16 Mary Ippolito, Recording Secretary 17 18 Chair called the meeting to order at approximately 7:05 pm and announced that 19 MetroPCS applicant for 70 Elm Street will begin at 8:00 pm as the School Committee is 20 at a redistricting meeting and a number of people wanted to hear this petition tonight. 21 ' 22 Chair announced that there are no postponements for tonight's meeting. 23 24 Chair called for Bond release: 25 DISCUSg9X: 26 Dr. Mukherjee,217&219 Sutton Street&213 Sutton Street—Two Performance 27 G bonds both for$2K each. As-built and letter from engineer submitted. DPW has no 28 issues. Judy made a site visit, drainage is in place, signs have been installed,has no 29 issues. Landscaping will be done this spring. Motion by RR to release one of bonds in 30 it's entirety and release %i of second bond and maintain a$IK bond balance to keep until 31 landscaping is done,2nd by JK, vote was unanimous. Release$3K and keep $1 K- 32 33 Chair called for Street Acceptance: (Long Pasture Road off Winter Street) 34 DISCUSSION: 35 William J.Nigro-request to be placed on 2009 Town Meeting for Street 36 Acceptance for Long Pasture Road. Chair briefly stated the convoluted history of this 37 subdivision. Before the PB can go forward all of the proper channels have to be closed 38 with Con/Com etc. in order to move forward with this request for Street Acceptance. Mr. 39 Nigro, 15 Long Pasture Road, stated he's working w/Mr. Fahey and Atty. Scalise and 40 stated that he got a call from Town Counsel 6 weeks ago, and apparently the Town has 41 settled their differences with Mr. Palinski regarding a superseding order of conditions. 42 Atty. Scalise is working w/Con/Com on documentation and deeds. He gave 43 documentation to Town Engineer for meets and bounds etc. He doesn't have Certificate Page 1 Planning Board January 27,2009 Minutes /� Draft 2/19/09 4PM 1 of Compliance yet on lot IA, (which is adjacent to Mr. Palinski's property) from 2 Con/Com. 3 4 Plse note: Atty. Walsh is now present. 5 6 Chair stated there is a checklist of things that need to be done when applying for Street 7 Acceptance, work w/Judy and get issues resolved well before Town Meeting time, 8 however,there is more tree cutting than what PB approved. Mr.Nigro should make 9 provisions to put in appropriate street trees put in areas that need replanting. Mr.Nigro 10 stated he would try to push his street acceptance thru. 11 12 . 13 Chair called for PUBLIC HEARING: 14 674 Turnpike Street, Theodori Londi, Site Plan Review Special Permit to allow for 15 demolition of a 2-story residential dwelling in order to construct a 2,800 s.£ commercial 16 building consisting of 1,400 s.f.; restaurant and 1,400 s.f retail within CDD2 zoning 17 district. Waiver on file until January 28,2009. 18 19 Judy gave an overview and stated the applicant was still working with Con/Com on this 20 project, although the applicant has changed the proposed project during recent edits she 21 recommended that a new application will be substantially different from the current 22 application. Judy recommended the applicant withdraw their current application and 23 submit a morethorough application. Applicant submitted a withdrawal request that.was 24 time stamped January 28, 2009. 25 26 In CDD2 the non-conforming lot has frontage-zoning issues. Applicant may have to go 27 thru ZBA and Con/Com too. Representative for Mr. Londi thanked Judy,Jennifer and 28 Building Inspector for their assistance. 29 30 Motion by RR.to accept withdrawal without prejudice,2nd by JK,vote was unanimous to 31 allow applicant to withdraw without prejudice. 32 33 Forest Linwall, Engineer w/Mistry Associates,made presentation tonight. Lot is 34 bounded by two paper streets, Booth and Saville Street. This is non-conforming lot 35 dominated by wetlands and abuts Mr. McGregor's property. Utilize foundation existing 36 to avoid 50-foot no-build,-resulting to 1700 s.f on ground for restaurant. Build 2nd floor 37 for dwelling unit 2990 s.f in total. This will take them out of 25-foot non-disturbance 38 zone. Parking setback.and aisle will require 5' of dimensional relief he needs a two=way 39 aisle. Replanting to be done also. Saville and Booth Street are used as driveways. 40 Applicant will continue to use those streets too;he's going to use some of the paper street 41 for his use. 42 43 Chair stated PB spent enormous amount of time planning out this district. There were a 44 bunch of small properties close to road and close to residents, the focal point was if 45 somebody wanted to build commercial structure they had to meet minimum lot size for Page 2 Planning Board January 27,2009 Minutes / �J Draft 2/19/09 4PM 1 either side of the street. But if you wanted to put commercial inside of existing building 2 that would be allowed also. Chair stated applicant isn't complying with the spirit of what 3 PB is trying to do. You are-not using existing building; you're making it much bigger. 4 Demonstrate that you can comply with the original/existing size of building fine,but if 5 not, how can you get a variance from lot size? What does that have to do with soil 6 conditions, topography? 7 8 Engineer stated the area(on the map) which lies to the left of the proposed project has 9 been subdivided under land court that means the paper streets are all within land court. 10 He runs into development obstacles because commercial structure would be divided from 11 the parking area by a paper street. Surrounding lot is owned by Town, another adjacent 12 lot isnot selling. He's run into obstacles because building would be too far away from 13 the parking. Owner wants to protect rights they need to deal with relief in the zoning 14 district. Pb doesn't agree with engineer's interpretation. 15 16 Please note: John Cahill's petition is going to be heard at 10:45 pm tonight. 17 18 CONTINUED MEETINGS 19 20 John Cahill— 166 Salem Street,.Map 37D,Parcel 21. Definitive Subdivision known as 21 The Captain Nathaniel Berry Homestead,consisting of a new 292 foot long-roadway and 3 new " 22 proposed"lots each containing 25,000 s.f..&existing lot containing 32, 174 s.f.with existing 23 single-family dwelling within R-3 zoning district. Meeting not closed Waiver on file until Feb 24 27,2009 25 26 John Cahill—166 Salem Street,Map 37D,Parcel 21_Watershed Special Permit to 27 construct a new 292 foot long roadway and 3 new single-family homes,portions of the roadway, 28 one house and a storm water detention/infiltration basin will be within the non-discharge buffer 29 zone.Meeting not closed.Waiver on file until Feb 27 2009 30 31 Judy stated applicant originally proposed a 4 lot subdivision. PB did a site visit and 32 submitted plan.showing cul de sac,which conformed to regulations_After input from PB 33 they want to consider small footprint for the roadway, and Mr. Cahill will present a 3-lot 34 subdivision with roadway scaled back and to allow for less structure in terms of storm 35 water management,minus drainage pond. 36 37 RR asked if they were entitled to 4 lots and now they are talking about 3 lots? Judy 38 stated yes. 39 40 Mr. Cahill stated that Phil Christiansen, Engineer, was oil his way. Mr. Cahill will 41 telephone Phil now. 42 43 Please note: Phil Christenson is here now. 44 He wants waivers on roadway. Driveway 18 feet wide. RR asked if PB wants to waive 45 sub-division rules and regs, make sure that street as laid out shows lots with right area Page 3 Planning Board January 27,2009 Minutes �� /to Draft 2/19/09 QM 1 frontage. If you drew in all lots with frontage and area would you have sufficient 2 frontage on paper with 3 lots? Phil said yes. Chair said cutting on Salem St. is visibility 3 less now? Cut is important it's a bad curve/curb? Is Keith Mitchell happy? Mr. Cahill is 4 not going to touch the tree that Keith wants to keep. No open technical issues raised by 5 VHB. MW asked is there concerns about road and drainage answered? Phil will submit 6 a drainage report to PB. Rain garden will provide calculation that garden treats the over 7 flow and go into wetland behind in the farm field. House located in back will face Salem 8 St. Chair said this is a nice improvement and results should be good. Chair wants 9 extension until end of March. Judy to draft a decision. Motion to accept extension by 10 MW, 2nd by RR, PB accepted extension until end of March. 11 12 Time is 11PM. 13 14 U14PROMPTU DISCUSSION. '15. Judy stated new and/or revised zoning bylaw that she knows of is the wireless bylaw. 16 She suggested the PB look at her revision of the bylaw and put on PB February meeting 17 agenda. 18 19 Judy is working on revision of zoning map which should be approved at Town Meeting. 20 Joyce Bradshaw can approve a zoning map instead of getting it approved at Town 21 Meeting. Judy stated that most of the changes are already on GPS now. (... . 22 23 Chair stated the other zoning issue is Mr. Carroll regarding the Andover St.property;he 24 wants to take down existing structures and replace them with something else. Judy 25 discussed this at prior meeting; she knows what property it is. This is a rezoning issue 26 because he can't utilize the adaptive re-use bylaw. Paper Street exists and he wants to 27 build on top of paper street. Chair will talk w/Mr. Carroll but doesn't have a lot of 28 optimism. 29 30 Tim Seibert asked is there enough time to circulate Judy's language on the cell tower 31 bylaw to other people? Judy submitted a draft as a placeholder already. 32 33 34 DISCUSSION: 35 21 High St. wants to file Planned Development District application for apartments. Chair 36 wants Mr. Steinberg to talk to PB now before they get too far into the project. PB didn't 37 like the building done too close to the abutters and parking lot. Get them to Feb. 3rd PB 38 meeting. 39 40 Judy talk w/Chris Huntress regarding landscaping for Messina's Plaza_ Chris to bring 41 landscaping changes to the PB for discussion on landscaping. 42 Page 4 Planning Board January 27,2009 Minutes /� /7 Draft 2/19/09 QM i 1 RR asked is installation of new lamps around the common depending on the removal of 2 old power lines? Don Stewart stated the Town will have to get a loan to have this done, 3 should be done this summer. 4 5 ' Judy stated a Site Plan Special Permit will come in for Police station to add addition to 6 rear 2200 s.f. addition. Gerry Brown, Judy and Ray Santilli reviewed the design and it's a 7 cell—a-port. This will be a full Site Plan Special Permit. 8 9 10 CONTINUED HEARING: _ 11 12 Metro PCS, 70 Elm Streetspecial Permit,, p t,proposes to install 6-panel antennas 13 at a centerline of 80' in existing church steeple and related BTS cabinet within R-4' 14 zoning district. Waiver on file until Feb. 18, 2009. 15 16 Recording Secretary circulated a request for name and street of people present tonight for 17 the record.Chair reconvened the PB meeting of Jan. 27h,2009 tonight. Chair thanked 18 everyone attending tonight's meeting. Chair explained the procedure and will make time 19 for anyone asking questions tonight. 20 21 Please note: for the record that Tim Seibert recused himself now at 8:05 pm. 22 23 .Judy stated applicant to provide map showing pre-existing facilities within one mile of 24 the facility. Show on plan a security barrier, address requirement of.DEP noise 25 measurements, review material for louvers,.Mark Hutchins,consultant,provided a report, . 26 applicant to provide information regarding possibility of co-locating at existing Stevens 27 Estate. See letter from Gerald Brown dated Dec. 3rd regarding setback for pre-existing 28 structures. Atty.Peter Morin dated Dec. 11''regarding gap in coverage with case report 29 ZBA involving Town of Pelham. VHB review dated Dec. 18d'. Hudson Design provided 30 co-location at Stevens Estate information. Amended application provided with signature • 31 of Trinitarian.Church&MetroPCS. Noise report provided regarding pure noise Dec 23. 32 Atty.Morin alternative sites Jan. 20a. Thea Fournier'letter Dec 2d letter from Atty. 33 Fitzgibbons. Liz Fennessey submittedletter at last meeting. Additional NEPA 34 environmental report. Dr. Hayes, Engineer, is here tonight. Applicant to address all 35 these issues tonight. 36 37 Atty. Peter Morin,present tonight. Two letters in Judy's file address whether or not the 38 coverage of competitors is to be considered whether there is a gap in MetroPCS wireless 39 coverage. First circuit Court of Appeals letter was issue regarding gap in coverage in 40 first circuit court of appeals the coverage of competitors is irrelevant whether there is a 41 gap in the applicants coverage. 2nd letter addresses alternative sites,the Steven's Estate 42 and two smoke stacks at 21 High Street. Stevens Estate question is whether or not 43 MetroPCS had or would ask the BOS to.release*anew RFP.for a second tower. He { Page 5 Planning Board January 27,2009 Minutes ,� /8 Draft 2/19/09 4PM 1 presented in Dec. of 2007 a representative for Metro did have a meeting expressing 2 interest. 3 4 Town was aware that there was interest in a RFP being released and none was released. 5 Atty. Morin stated he feels it's not up to him to release RFP for Town owned property, 6 Town didn't release it. Two people attending,the meeting said Town Manager at time 7 had cautionary words to this with regard to what the climate was in Town and they went 8 away with notion they were not certain if Town would be willing to fallow thru on this. 9 Mark Hutchins report stated that even if the Steven's Estate were available that location 10 would not solve a gap in the coverage that would occur along Rte. 133 and Rte. 125. 11 12 Atty. stated the 2 smoke stakes one of which is located on High Street were in litigation 13 years ago,permit was appealed;and T Mobile said property owner wasn't interested in 14 pursuing this project. 15 16 Atty. contacted other owner of other smoke stack and was informed that other owner was 1.7 not interested in cell tower using their smoke stack.. 18 19 RR doesn't know RFP process and only asking if people in Town would ask if they 20 would consider building a second tower,just looking for a yes or no. End of subject if 21 they were not interested in this project. RR read Mr. Hutchins report and look at graphs 22 it looks like driving force form law point of view is that they encourage coverage along 23 main roads, if this is criteria over residential coverage then it looks like proposed citing 24 covers better on southern end of Rte. 125 and Rte. 133. Look at alternative at siting at 25 Osgood Hill there is less good coverage on southern end and far superior coverage on 26 North side. Based on that the site at-Seven's Estate seems to be a far better location. Did 27 they ask question of right people in Town of possibility to build a second tower at 28 Osgood Hill? 29 30 Atty.Morin said obligation to seek alternative sites is that alternative must be available at 31 the time the application is under consideration. Bylaw specifically requires before a new 32 tower is built that.a more preferable alternative is not available before you can get a 33 permit. 34 35 RR asked if current application was approved and a gap is still at Rte. 125 and 133 then 36 will they-come back in and say they still need to close a gap? 37 38 Franz Pierre, Engineer,presented he can't say if he would come back because as 39 customer base increases and for capacity reasons he might have to come back to close 40 that gap some time in the future. 41 42 Franz Pierre, stated he agrees w/Mark Hutchins report. Cell phones are used for travel 43 and at home, Metro objective is to provide reliable coverage that is to provide service, 44 based on residential,highways,building, and anywhere where there is significant gap in 45 coverage. Page 6 Planning Board January 27,2.009 Minutes Draft 2/19/09 4PM 1 2 Alternative at Stevens Hill would be for coverage to close gap in Covera eon Rte 3 and Rte. 133 area,but not as good as Metro proposed for residentialcoverage.eraj • 125 4 5 Bill McQuade spoke regarding security pian, he's developing 6 week for the church. NEPA is in PD file; there is no.adverse affect far willchuhave h. one in a 7 Design letter and reviewed flagpole at Steven's and it's at capacity and compound Hudson 8 capacity for 3 carriers at this site. Noise study, its pure noise---it's immeasurable sat 9 church location. No sites within one mile of proposed church f co location (no wireless 10. facilities). Amended application submitted an ori 11 church and MetroPCS. Replacement louvd mat�nerialis -applicants signature are 12 commission and church. Dec. letter from erereeBuidin acceptable by the historical 13 w/Section 8.93 cd2 preexisting structure is proposedas a mount and setback r stating on complies 14 zoning district does comply. provision of 15 16 Mark Hutchins, Engineer, is speaking on behalf of the.Town and VHB sub mitted 17 name as an RF engineer. He has 40 years experience, and not accepted work frmks 18 providers or tower developer for approx. 9 years. Site is in com liance w' 19 guidelines. Dr. Hayes looked at exposure forP with FCC 20 Program in place where church needs to make sure if somebody0feet- Concerned about 21 contractor be aware of existence of antennas that's the only case where FCC getting b ladder that 22 would be exceeded. FCC has case that went to Supreme Court where you are guidelines 23 to do interference to neighbor's electronic devices from this equipment. pre-empted 24 possibility of 3 alternatives, a new tower in area of existing pole lookedt coverage mo 25 stacks filed by Omnipoint,he placed antennas at f existing smoke 26 available for non RF reasons. Discrepancy b � rt appears those sites are 27 applicant from the North:by exit on 495,there is a s this co ra e 3 Scocoverage s age�m 28 there it's BOS0211; he was not getting coverage to the North that site and from 29 their'map. One'way to provide coverage to 31 the North to add 4"sector somewhereon 30 between 80 and190 to direct more signal in that direction, Report Page 5,section 4H of court decisions looked at Appeal Courts he said users expect more wide , lot 32 coverage than just on highways. Good history where courts asspread 33 coverage on highways,but that coverage is needed in residential l sume thereei be 34 tremendous drop in people who have wire lines. in subscribers in M 35 Vermont,losing customers and had to wait 3 weeks i et wired Bernice acne,N.H. and 36 wireless service. Omnipoint event to Stevens Estate because it was better man nothing on 37 because they couldn't get permission to locate on smoke stacks. thing 38 39 MW asked based on environmental effects we're precluded from den 40 based on environmental effects of RF? Ymg an application 41 environmental would include in our o mon Hutchins said .yes. MW asked and 42 RF radiation because that's clear to him that's what they Hutchins stated he wished they said 43 Page 7 Planning Board January 27,2009 Minutes �� a?d Draft 2/19/09 4PM I Mr. Hutchins stated FCC has said measurements aren't necessary, procedure has an 2 endless litigation. Applicant should agree to do measurements after application process, 3 but recommends applicant volunteers to do measurements. 4 5 MW asked if RF levels would be well below FCC guidelines require? Mr. Hutchins, 6 stated yes, said at base of tower he does spectrum analyzer to measure. 7 8 RR asked if emissions allowed by FCC at base of church what is percent? Mr. Hutchins 9 said 1 to 5 percent of maximum. Are there any devices in use by people in Town in their 10 own homes compared to an antenna? Mr.Hutchins stated a leaky microwave oven would 11 be higher than what would be in the area at church. See report for the record. 12 13 Judy asked if Mr. McQuade woul 14 now. d write up a maintenance plan? McQuade is drafting it 15 16 Caroln McDermott-Zimmer, 135 S.Bradford St.,a future applicant at same location? Is it 17 RF cumulative? Mr. Hutchins said it is cumulative. Does it affect 2nd applicant? Mr. 18 Hutchins stated according to FCC it applies to everybody it's cumulative. 19 20 Loretta Wentworth, 15 Pleasant St., lives 276 feet from church. Mother and 21 grandmother, worried about future generations. RF emission neighbors are exposed 24/7 22 to emissions. Negative effect on property values. Submitted petition of residents 23 opposed to-cell tower in church. Consider Stevens Estate or other sites it would generate 24 revenue to Town. Completed market analysis assessment at 45 Elm St valued at 25 $665,000.00 could cost home owner$20K if presence of cell towers are located so close 26 to their property. Submitted petition of 189 residents in opposition for the record. 27 Submitted-appraisal affidavit stating property value will drop so church will make money 28 is unacceptable(submitted for record). Chair asked for documentation to be submitted 29 for the record. 30 31 Dagmar Schnellinger, 83 Elm St.,lives 60 feet from the church property. Submitted 32 affidavit of home appraisal to the PB price of home would be limited if cell phone 33 antenna were to be located in church and has a potential health risk. 34 35 Jim Gordon,500 Rea St., what is relevance of Dec.2nd Building Inspectors 36 determination? Chair stated he's Zoning Enforcement Officer for Town, PB relies on his 37 guidance as-PB makes their decision. Anyone has alternative to disagree with his 38 decision- Mr. Gordon asked has anyone challenged Building Inspector's interpretation 39 for antennas in church steeple at Mass Ave. steeple? MW stated Atty. Fennessey, of 40 Methuen,takes issue with his interpretation(in the record). 41 42 RR stated our Town's counsel said the proper authority is our Town's Zoning -43 Enforcement Officer go to him and he's rendered his decision. 44 Page 8 Planning Board January 27,2009 Minutes ver a Draft 2/19/09 01A 1 Mr. Gordon asked if any member of this Board has an opinion that differs from the 2 Building Inspector. Mr. Gordon asked when does a church steeple become a tower? If 3 this is the issue the building inspector should be dealing with a change in application? 4 Petitioner can take this issue to Appeals Board. Mr. Gordon asked if PB could become a 5 party aggrieved of the decision of the Building Inspector? 6 7 Town Counsel told the PB if you want direction on this go to the Zoning Enforcement 8 Officer, so the PB went to the Zoning Enforcement Officer,the BP looked at the bylaw 9 under Section 3B location, #1 (refer to Bylaw)that's the interpretation the PB intends to 10 follow. Mr. Gordon wants PB to appeal this issue. Chair stated the PB does not have 11 standing, someone-else has to do that as a party aggrieved. 12 13 Aaron Pertus, 62 Elm St.,has issues with fire, ventilation system, emergency lighting, 14 back up batteries, smoke management system,procedure for battery spill and back up 15 system. There are statements inaccurate such as"no emissions"address these issues. 16 Bill McQuade said he doesn't have specific answers at this point but will provide these 17 answers to PB. 18 19 Chair said when getting a building permit some of these would be addressed then? Mr. 20 McQuade said yes. Mr. Curtis will provide PB with his questions tomorrow. Mr. 21 McQuade said he filled all requirements of this board and fulfilled the requirement for the 22 Fire Dept. also. t 23 24 Mr.Allen, 45 Elm St.,read Mark Hutchins' report. Mr. Rowen did a good job of 25 addressingthe report Rte. 125 and Rte. 133.Why would PB grant this variance when there is a 26 better site in town? PB stated it's not variance it's a Special Permit. 27 28 Liz Fennessey, 77 Elm St., lives 50 feet away from church; she talked to people who 29 changed bylaw in 2000. Researched in 2000 interest in inventory existing towers to get 30 revenue for Town. .Walter Soule requested a committee be formed for this purpose. 31 Stewart,Mitchell, Bernice Fink, Lynn Avakar and Garrath Morfill.They all stated 32 interpretation of bylaw made by Building Inspector and Town Counsel was incorrect. 33 Walter's intent was to keep tower at least 600 feet away from homes and people. Ms 34 Fennessey read committee report of people involved at the time. Ms Fennessey said 35 Building Inspector,Town Counsel, and PB should reconsider their interpretation of the 36 law and follow its content and refer this matter to the ZBA where it belongs. 37 38 Lynn Avacar, 125 Barker St,. said let's think about environmental issues,historical . 39 building,there can be full coverage but we don't know what health coverage will do. 40 Wants compromise on this matter,why make people move from their homes? 41 42 Cindy Allen, 45 Elm St.,read her argument(submitted for the record). How can the 43 language of the bylaw be mis-construed? Town has no good reason to allow church to 44 auction off the steeple to cell tower for financial reasons. Best options is to utilize 45 Stevens Estate,residents of Elm St. would win, even church would win because they Page 9 Planning Board January 27,2009 Minutes 02� Draft 2/19/09 4PM 1 would be able to keep kindergarten at the church. If coverage shrinks, then applications 2 would increase to get stronger coverage? RR to a degree yes, the more people who have 3 PCS service then more people who would complain. Ms Allen asked how could you 4 sleep at night if you do this to this neighborhood? What about our who kids are sleeping 5 on 2nd and 3rd floor in this neighborhood? Riverwalk has antenna arrays. Airport has 6 antenna arrays. 7 8 Karen Carroll, I 1 Woodbridge Road, she feels PB is being misled reg. interpretation of 9 bylaw. There are no FCC regulations relative to biological effects. No research is 10 available. Bylaw is meaningless as written it states 600 feet setback,and pre-existing and 11 existing can't be inter-changeable. She previously submitted opinion from a lawyer thru 12 Thea Fournier. .13 14 Ann Oliver,46 Elm St.,health risk to residents around church if you put cell tower there. 15 Too many scientists looking at low intensity exposure. Her daughter got cancer because 16 there was a transformer box outside of her house, according.to Dana Farber from RF 17 emissions. Physical changes due to RF emissions in school children. Non-thermal 18 effects are potential health risks. 19 20 Chair said PB can't make determination based on health issues, the 21 forum to do that is to•go to FCC. PB can't make decision based on research submitted 22 (Ms Oliver submitted paper for the record). �. 23 24 George Scbruender, 71 Elm St.,he recommends to continue this hearing, go to ZBA first 25 and oppose opinion by the Building Inspector. 26 27 Bruce Baker,257 Main St., Town meeting passed bylaw to prohibit cell towers within 28 600 feet of residents. 29 30 Mark Depolito, 9 Pleasant St.,presented PB with case law study. T.Mobile is going to 31 look for another tower for gap in coverage but relevant because Metro PCS is stating 32 Stevens Estate is not going to provide enough coverage. RR said no one has permission 33 to put an additional antenna on the Steven's Estate right now. Everyone here can contact 34 Town Manager or BOS and ask for an RFP so that it's at least a viable alternative. 35 36 Thea Fournier,247 Main St.,Jan Williams went to BOS meeting and asked to propose 37 they go to Metro PCS and propose to put a new monopole at Stevens Estate. BOS told 38 Ms Williams that it wasn't up to them. Mis-communication with BOS because Ms 39 Fournier is trying to get them to communicate. 40 41 Mr. Depolito, (submitted handout tonight) interpreted Telecommunications Act of 1996. 42 Town could not prohibit cellular service. But Town hadopportunity to determine where 43 they would locate the coverage. Mr. Depolito submitted report for the record tonight. See 44 page 9, 10, 11, & 12 for District Court's interpretation of TCA. `. 45 Page 10 Planning Board January 27,2009 Minutes a 3 Draft 2/19/09 4PM 1 Thea.Fournier, 247 Main St.,presented document by Atty. Edward Collins from Wayland 2 Mass—submitted letter for the record. His opinion is zoning bylaw establishes a setback 3 requirement of at least 600 feet between wireless service facilities including antennas and mounting structures etc.....she skipped to ......term pre-existing structures whether 5 conforming or non-conforming refers to structures actually in existence and being used 6 by wireless service facilities at the time provisions of current zoning bylaw became I effective etc.......Section 2 does not apply to mounting of antennas in that church, it's not 8 a pre-existing structure, it's a new existing structure and governed by requirements of 9 Section 1 etc.-_(see letter for the record). 10 11 Ms Fournier stated whatever decision PB makes she wants to be notified and provided 12 , copy of PB decision at same time Town Clerk receives PB decision. 13 14 Don Stewart, 52 Prospect St.,he was on committee and intent was 600 feet from 15 residential structures. Town divided; intent over-weights interpretation. He will get RFP .16 tomorrow from Town. 17 18 Lynn Avacar, stated intent was only to grandfather in the old structure because they 19 didn't want to say if there is cell phone tower they were only grandfathering them in. 600 20 feet was for anything new. 21 22 Applause from audience.drowned out the name of the next speaker who lives on Webster 23 Wood Lane? Speaker stated the police station; down town has wireless antennas now? 24 How does WYFI systems compare? She doesn't have leaky micro-wave. What about 25 baby monitors? Mark Hutchins stated those devices are lower power and doesn't require 26 license from FCC. 27 28 Lynn Avacar stated she did not base the reasons on health, they were based on 29 environment,property value many other reasons. 30 31 Lynn O'Neill,formerly of Elm Street, stated she has thyroid cancer,has health concerns, 32 she had radiation and measure for public safety and it was a different measure which was 33 ok for her to go back to her home...she stated that the effects of a wireless located at the 34 church.are not know. 35 36 Don Hayes, Health Physicists, stated use of iodine is outside of the PB purview. 37 Migration into public versus close relatives is a different type of RF energy than what 38 we're talking about tonight 39 40 Ms Gordon,25 Garden St.,people have a choice to use a cell phone because it's a choice; 41 there's no choice if you live close to a tower. 42 43 Diana Warren,Waylvnd, MA; what is range from signal from Metro PCS facility in 44 miles? Mark Hutchins said depends on direction. Mr. Hutchins said range could be Page 11 Planning Board January 27,2009 Minutes a� ay Draft 2/19/09 4PM 1 several miles, generally half mile or more. Ms Warren stated North Andover's request 2 for a one-mile range is insufficient. RR said he believes that wasn't what PB asked for. 3 Ms Warren stated some evidence was deleted from what was submitted to the committee. 4 Ms Warren stated Town Counsel is hired by BOS and PB should have their own attorney. 5 Town Counsel supported BOS and BOS is of a mind-set and his opinions expressed 6 indicate that. Ms Warren stated Section B limitations etc., FCC doesn't regulate 7 biological effects. 8 9 Chair instructed further questions to be directed to Judy. Chair wants follow-up on 10 applicant to address issue on wireless facilities within one mile. Applicant provide 11 information maintenance firelsafety issue. 12 13 Chair wants.to distill in common patterns and threads and evaluate everything and put 14 into categories as PB moves forward. 15 1.6 Chair took a poll of what PB members are available for the next PB meeting of Feb. 3rd 17 Jennifer not available next week. 18 19 Meeting on Feb. 17th Rowen won't be here and Courtney will be absent on Feb. 17`". 20 21 PB will meet on Feb. 3'd, to continue this hearing. PB may have to schedule a Special 22 Meeting to bring in a decision. We need a quorum before the Feb. 17`h meeting. Rowen 23 will be out 17, 18, 19, and out 8th and 13'h of March. Chair would like to hear this next 24 week(Feb. 3rd) in order to catch up. 25 . 26 Bill McQuade wants article number in bylaw.for the.one mile?Judy stated Sectiod 27 8.95dii. 28 ' 29 Steve Tryder, 386 Chestnut St., where does this stand in taking it to ZBA? Mr. Tryder 30 stated there is a mis-interpretation that PB will be basing their decision on and you are 31 going to go ahead and make a decision about having that clarified for us,we want to take 32 that .......Chair said you're suspecting that we're going to deny he wasn't finished 33 talking yet, Chair asked if you will let him finish? Chair thanked everyone for coming 34 tonight,this.is the most people PB had in the past 20 years at their meetings. About 60 35 people tonight. Chair stated the subject of interpretation of bylaw is that you shouldn't 36 interpret bad faith by Building Inspector or anybody else. PB has changed bylaw and 37 developers came in and said they wanted to do such and such; therefore, the language 38 isn't as crisp as the PB intended it to be. Chair said he'll go back to ZBA and have a 39 dialogue with them. Problem exists here is when bylaw was amended it.was 40 incompletely amended, only minor changes of a couple paragraphs,therefore, conflicting 41 language remained in bylaw after the change that is contrary to the interpretation of what 42 you have. Even though somebody intended something to happen that is not necessarily 43 what they executed. 44 Page 12 Planning Board January 27,2009 Minutes X} 95 Draft 2/19/09 4PM 1 Mr. Tryder said when law was amended in 2000, for 6 years that law meant something 2 different, Building Inspector came to Town and suddenly it became an issue. 3 4 Chair said there has been legitimate ambiguity in bylaw, intent was one thing, written 5 was something else. 6 7 Mr. Tryder tried to get Building Inspectors intent for 6 years and he hasn't gotten 8 anything. 9 10 , Liz Fennessey said intent is the word not environmental. One thing that is clear is that I 1 the bylaw is unclear. 12 13 Chair called to APPROVE MINUTES OF THE MEETING: 14 Motion by JS,to approve January 6,2009 Minutes,2nd by TS, vote was unanimous 15 approved. 16 17 18 PLANNING BOARD MEETINGS: 19 January 20, 2009 cancelled .20 February 3, 2009 21 February 17, 2009 22 23 24 25 Time is 11:00 pm 26 27 28 Motion by RR to adjourn,2nd by JK,vote was unanimous. 29 30 31 32 By order of the Planning Board 33 34 Approved 35 36 37 38 39 40 41 42 43 Page 13 Planning Board January 27,2009 Minutes �26 DW7 Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4.17/09 1 Town of North Andover 2 Planning Board 3 Minutes of the Meeting 4 February 24, 2009 5 Town Hall, 7:00 PM 6 7 Members present: John Simons, Chair 8 Jennifer Kusek, Clerk 9 Richard Rowen,regular member 10 Timothy Seibert,regular member 11 Michael Walsh,regular member 12 13 Member absent: Courtney LaVolpicelo, alternate 14 15 Staff present: Judy Tymon, Town.Planner 16 Mary Ippolito, Recording Secretary 17 18 Chair called the meeting to order at approximately 7:05 pm and announced that the 19 discussion items would be called..first, the bond release for 400 Willow St.;the traffic 20 signal on 21.0 Holt Road; and extension request for 12 Bonny Lane. Chair announced 21 that the Cahill project for 166 Salem Street is postponed. Chair will call for Metro PCS 22 then finish with remainder,of discussion and"Minutes", etc. 23 24 25 POSTPONEMENTS: 26 none 27 28 29 Chair called for DISCUSSION: 30 Bond release: 31 o Stephen Foster, 400.Willow Street, request close out of$l0K bond. As-built 32 and letter from MHF Design Consultants submitted. Letter from Gene Willis, DPW, 33 stating his concerns have been satisfied. Tim Willett, DPW, stating he has no concerns. 34 Judy made a site visit has no issues. Motion by RR to release all bond money, 2nd by TS, 35 vote was unanimous.5-0 36 37 38 Chair called for DISCUSSION: 39 Traffic Signal: 40 ® Mr. Thomson, 210 Holt Road, applicant has installed signalization at Holt Road 41 and Rte. 125, as required by the Board of Health — site assignment and the Planning 42 Board's Site Plan Review decision. There are remaining funds to be placed in an escrow —� 43 account to be used for future changes to the installed traffic signals. 44 Page 1 February 24, 2009 Minutes DRAFT Jen's edits . 4/1/09 Mary's edits 4/6/09 Approved 417/09 1 Judy spoke wBOH there was a requirement in•Site Plan Special Permit by the Planning 2 Board in the decision and also contained in part of site assignment decision from BOH to 3 contribute$200,000.00 for traffic light etc. Place money in escrow account to install a 4 traffic light at future date. Estimate is $184,000.00 to install a light, BOH questioned if it 5 would cost that amount? 6 7 . Chair: talked wBOH does intersection need to be signalized or not?Applicant installed a 8 blinker light there, however,they may have to upgrade this light in the future. Only half 9 of the$184K may have to do with the light. PB:has a separate bond account with$15K 10 basically for landscaping that wasn't done. Chair: subtract the amount that has nothing to 11 do with the traffic light then the left over should be the escrow amount.. 12 13 RR: if they set money aside to build and design a traffic light the light has been installed 14 now,they-have fulfilled their obligation. 15 16 Chainthe idea of escrow is to have money-there in case something happens. MW: asked 17 is there$184K worth of light? Chair said no. MW: have them come in and explain 18 attorney fees, etc. and schedule them for future discussion to clear up this matter. TS: if 19 intent is to put in traffic light then put it in,whether a more elaborate light is needed in 20 the future then is this to be put on them? Chair: hold the money for five or ten years, no 21 one knows what total volume of this facility will be. Bottom line bring Mr. Thomson 22 back in for a discussion with the PB.- .23 24 Chair called for DISCUSSION: '25 Extension request: 26 N Tony Grasso,request for an extension for a Watershed Special Permit.for a lot 27 located on 12 Bonny Lane under the name of Bonny Realty Trust granted on 3/12/07. 28 29 Mr. Grasso is in the process of purchasing this property—Decision has been recorded. 30 Atty. Don Borenstein to represent applicant.Watershed Special Permit filed w/Town 31 Clerks office. 32 33 Atty.Don Borenstein, 12 Chestnut St,Andover, MA stated two years ago applicant ' 34 Bonny Realty Trust,was in front of the PB,Con/Coin and ZBA. A lot of discussion took 35 place with the Town at that time,unfortunately the market was on its way down. Buyer 36 is Mr. Grasso's son who will apply for building permit ASAP. Watershed SP will expire 37 in March of 2009,he wants a few months extension. 38 39 Judy asked are there changes to foot print? Applicant may not build as big as what was 40 originally permitted, at some point he may come back in for a modification to the Special 41 Permit. Motion by RR to grant one-year extension for a Watershed SP for 12 Bonny 42 Lane for March 6, 2007,2nd by JK, vote was unanimous. 43 44 45 Chair moved this DISCUSSION to the end-of the meeting: Page 2 February 24, 2009 Minutes . z� DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4,'7/09 1 Article for Town Meeting: 2 m Wireless Bylaw, Section 8.9 of the Bylaw. J. Tymon's proposed changes to the 3 existing Wireless Bylaw. 4 5 6 Chair announced postponement for following CONTINUED MEETING: 7 8 m John Cahill—166 Salem Street,Map 37D,Parcel 21. Definitive Subdivision known as 9 The Captain Nathaniel Berry Homestead,consisting of a new 292 foot long roadway and 3 new 10 proposed lots each containing 25,000 s.f. &existing lot containing 32, 174 s.f.with existing 11 single-family dwelling within R-3 zoning district. Meeting not closed. Waiver on file until 12 March 31, 2009 final plan submitted 2/18/09 13 . 14 m John'Cahill—166 Salem Street,Map 37D,Parcel 21.—Watershed Special Permit to 15 construct a new 292 foot long roadway and 3 new single-family omes,portions of the roadway, 16 one house and a storm water detention/infiltration basin will be within the non-discharge buffer 17 zone.Meeting not closed.Waiver on file until March 31,2009. final plan submitted 2/18/09 18 19 20 Chair announced the Planning Board would not vote on MetroPCS tonight: Board 21 member Timothy.Seibert recused himself from this petition tonight. 22 _Metro PCS, 70 Elm Street, Special Permit,proposes to install 6-panel antennas 23 at a centerline of 80' in existing church steeple and related BTS cabinet within R=4 24 zoning district. Waiver on file until March 10, 2009. 25 26 Judy gave an update on the following punch list: Letter submitted by Atty. Peter Morin 27 requesting a waiver, 8.95D other pre-existing and approved wireless facilities within one - 28 mile of N Andover's boundaries, Another letter from.Atty. Morin of property value 29 assessment by William Pastusick? Sign plan/safety barrier plan,applicant's engineer will 30 review this. 31 32 Public submitted items via e-mail today,which include: collection of requirements 33 related to installation of telecom facility regarding Fire Department requirements.Judy . 34 presented this.today to Gerry Brown and he submitted a written opinion,she spoke 35 w/Chief Martineau. Received via e-mail a letter from David Deens and he received letter 36- from Counsel from FCC and submitted to Judy. 37 38 Atty. Morin addressed waiver requests. Alternative site is issue,looked at the area of this 39 gap, and identify existing sites that wouldn't work. Other existing sites don't serve this 40 particular gap area. Granting a waiver for this would make sense. If they are outside of 41 area that would achieve coverage then we know there are rooftops in S. Lawrence that 42 MetroPCS uses,tower in S. Lawrence/Andover line that everybody uses. They serve no 43 useful purpose for this application because they are so far outside of this gap area. 44 45 Judy read requirement: map showing other pre-existing approved wireless service 46 facilities in N. Andover and outside N. Andover within one mile of its boundary. See Page 3 February 24,2009 Minutes 0� DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4.7/09 1 section#5 application procedures,page 111, #4 in Bylaw. Once an applicant submitted 2 this report then it would be easier for the next applicant to add on their information, etc. 3 4 Judy: this is a difficult thing to keep track of, due to co-location, carriers changing their 5 name, no reporting requirements by carriers; PB doesn't keep track of change in 6 ownership of the cell tower companies. 7 8 Chair: based on coverage area have you identified every single one? Atty. Morin said 9 yes. Atty. Morin: said Bylaw said we want you to use pre-existing structures and submit a -10 "full application for 100 %invisible installation,then the purpose of identifying other 11 facilities is wrong, no purpose for it. 12 13 Atty. Morin: said real estate letter and report, was produced by Mr.Noon referring to `14 Schneider Electric smoke stack application. It concluded that the installation was visible 15 in neighborhood would have an impact on real estate values.Atty.Morin's letter deals 16 with fear of potential buyers relative to adverse health impact.He got appraiser to do real 17 estatestudy for scientific methodology done to identify similar installation to this one and 18 examine real.estate activity out side of neighborhoods regarding the impact on real estate 19 sales. Reference report for Calgary Baptist and Bradford Church and West Parish Church. 20 21 - Bill McQuade, MetroPCS, compared 70 Elm St. steeple to 3 other churches. 22 a). West Parish Church, Andover. (Residential location older homes;'etc.No unusual 23 trends regarding absentee ownership etc.). 24 b). 586 Mass Ave,N. Andover, First Calvary Baptist Church, comparison in residential 25 near school,impact two sales of homes recently sold for prices above the median price. -26 c). 10 Church St.,Haverhill,T. Mobile tenants and Metro PCS there too. First Church.of 27 Christ, competitive location,residential area, no measurable impact from antennas,listing 28 indicates 3 listings fall within perimeter of listing price. Construction and operation will 29 not have any adverse affect on property values within the subject site. 30 31 Atty. Morin put: into file a NEPA letter stating"no significant impact on historical 32 neighborhood" (he submitted letter tonight dated Jan. 26;2009.) 33 . 34 Don. Hayes: spoke regarding RF Safety Plan report done by Hudson Design Group 35 relative to roof top installations. Mr.Hayes: reviewed this report and finds this report 36 acceptable to use as RF safety plan. 37 38 No signs required throughout facility with exception of direct access to tower itself. Blue 39 sign A posted into steeple/near antennas is not required by law to do so. Sign B is caution 40 sign needed to notify individuals that they may exceed potential for exposure in direct 41 access to antennas. It's acceptable plan on file and made available for individuals who 42 would repair or do construction on the facility. 43 44 RR: would church have final authority to shut down antennas? Mr. Hayes: said 45 - responsibility falls on the landlord. Page 4 February 24,2009 Minutes a DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4./7/09 I 1 2 Atty. Morin: request for 5 minutes to sum up issues (at the end of the meeting). 3 4 Steve Tryder, 386 Chestnut St., did people who bought this real estate know there was 5 invisible source of radiation in church where they were buying their home? Bill 6 McQuade stated he presented the report he didn't compile the statistics. 7 8 Loretta Wentworth, 15 Pleasant St., stated real estate agent has to divulge anything that 9 would affect the consumer,high power lines, gas line, it's immediate deterrent. 10 11 Mr. Tryder: asked if there were a church located in a particular area would a buyer be 12 inclined to ask if there are wireless antennas located in the steeple? Ms Wentworth: said 13 yes,but at this point maybe not. Mr. Tryder: this is major loophole in the study. Ms 14 Wentworth: stated the report would carry much more weight if person who wrote it were 15 here tonight. 16 17 Chair: wants this report put-on line. Judy: sent it via e-mail to a mailing list today. Chair: 18 stated you can see the results of study if you think it's wrong get back to PB. 19 20 Ms. Wentworth: stated Bylaw is not being adhered to. Why isn't Bylaw adhered to?.She 21 wants to review the report, and continue this hearing to March 3'd. She has information 22 on effected property values she wants to put into the record(submitted letter for record 23 tonight.).- 24 - 25 Don Elliott, 266 Main St.,he's a licensed radio amateur operator,Technical Director in .26 high-tech company,member of the Board of Trustees of Congregational Church. How _ 27 many folks present own a cell phone? They are ubiquitous?.Cell phones should be 28 attacked,not cell tower or bay station. Power outlet here 10 Mila watts up to 200 Mila 29 watts. Bay station numbers are around.1 to .5 Microwatts. Who looked at Mark 30 Hutchins-report? Section in there about going down from 4-bars to 1-bar and this is next 31 to your head,the power goes up automatically. GPS antenna you get location what sector 32 of antenna you will get connected to. Looking at 120 degrees 3 sided configuration, 33 you'll get connected with one of those antennas. Mr. Elliott lives at the Fields Estate and 34 is planning to put up an amateur radio transmission tower no higher than 200 feet on his 35 property. He read article by Diana Warren from Wayland, emissions levels are much less 36 than the RF emissions are. Submitted newspaper article to PB tonight regarding cell 37 towers that are planned to go next to school in Florida _ 38 39 40 Liz Fennessy, 77 Elm St.,presented how the Bylaw was applied since 2000. 41 Trinitarian Church, letter from Bob Nicetta 8.9 a SP is required prior to installation of 42 wireless facility, advised to obtain prior variance. 43 Page 5 February 24,2009 Minutes 3 � DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4..'7/09 1 2001 letter July 27, from Attorney letter to Mr.Nicetta for 401 Andover Street,PB 2 agreed facility is type of facility consistent with Bylaw,but apply for a 600 `variance 3 first. 4 5 Letter from Michael McGuire on 2001 stated a variance is required for 600' setback from 6 ZBA. 7 8 Letter in 2002 to One High St., Omnipoint, from Mr.Nicetta a setback of 600' is required 9 petition the ZBA for variance. 10 11 2006 letter regarding First Baptist Calvary Church, from Gerry Brown 600' section does 12 not apply to First Calvary Baptist Church°because as proposed antennas will be installed 13 in church spire,therefore,no.need to go to ZBA for a variance. 14 15 Letter in Dec. 3,2008.regarding Trinitarian Church from Gerry Brown 600' Section does 16 not apply to church as antennas will be within existing church spire,no need to go to 17 ZBA for a variance. 18 .. 19 Ms. Fennessey: stated it's the duty of Town Board and officials to apply the Bylaw in a 20 consistent manner refer this issue to the ZBA where it belongs (letter for the record). 21 22 Jim Gordon, 500 Rea Street, wants PB to deny this petition with respect-to a fire safety 23 issue. Issue is un-suspected children that might become impacted by approval of this 24 decision. 25 26 Judy: no recommendation was made by Fire Department. Building inspector submitted a 27 letter today,he's reviewed material presented and the issue addressed in material pertain 28 to fire related safety standards,would be addressed by the Fire Department at the time of 29 issuance of a building permit. 30 31 Mr. Gordon: stated Fire Department has to sign off on form M and the PB would want to 32 weight in with.Fire Chief to find out what are the merits mentioned at the last meeting 33 regarding fire safety issue. 34 35 Cindy Allen,45 Elm St., she identified existing wireless facilities within one mile and 36 locations of towers within 3 mile radius from surrounding communities (hand out for the 37 record). She has no choice regarding cell tower in her neighborhood. 38 39 Aaron Pertus, 62 Elm St.,Referring to National Fire Protection Agency,issue of back up 40 batteries emit hydrogen gas when being recharged, which is explosive in contained 41 environment such as equipment room,needs automatic ventilation system. Judy. sent e- 42 mail to Chief Martineau with the packet information. 43 44 Cindy Jalbert,Webster Woods Lane, did PB talk to ZBA about this issue? Chair: talked 45 to Chair of ZBA and informed him of this process and letter of Gerry Brown. It was left " Page 6 February 24, 2009 Minutes 32, DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 417/09 1 that is the opinion of the Zoning Enforcement Officer and not the prerogative of the ZBA 2 until someone brings something in front of them. 3 4 Cindy: asked if existing antennas had to go in front of the Planning Board process to get 5 permitted? Chair: thinks they existed before the Bylaw was written. Nothing has been 6 put in since the Bylaw came to place. 7 Cindy: Town passed Bylaw to exempt these things and put them where they want to? 8 Cindy: asked do all antennas contribute to RF emissions? 9 10 Dr. Hayes: range breaks down to 1 to 1 %percent of the FCC exposure limits to members 11 of the public. :. 12 13 Did church officially sign a contract w/MetroPCS? Chair said they are co-applicants and 14 filing jointly. 15 16 Thea Fournier,.247 Main St.,home is in family for 75 years. Problem is not the Bylaw 17 but town officials have failed to uphold Bylaw. Gerry Brown and Town Planner did not 18 adhere to requirement.of Bylaw, Chair objected to her making a personal attack against 19 the Planner,Thea scratched Town Planner...Thea went on to say PB needs to uphold -20 enforcement of 600 foot setback. '21 22 .PB should turn application down because it doesn'.t comply with clear wording of the 23 Bylaw calling for 600 feet setback from schools and residences with houses close as 27 24 feet to proposed antennas. 25 26 Application belongs in front of ZBA not the PB. PB must according to.Bylaw turn this - 27 down, then applicant will go ZBA fora hearing. BOS made alternative site available for 28 Metro and other carriers at Stevens Estate.Town officials have failed to adhere to Bylaw 29 provisions,citizens are confused about the Bylaw, she submitted copy of a letter in the 30 Citizen and a letter from her Atty. Collins (submitted for the record). 31 32 Lynn Avacar, 125 Barker St., Bylaw enacted and got committee together included 33 telecommunication.companies,worked-together to come up with this law,citizens voted 34 on this law and unless citizens have a chance to say otherwise she doesn't understand 35 why a law is being questioned? 36 37 Mark DeIppolito,Pleasant St.,question for Dr. Hayes?How far away from cell tower 38 was he when he made these measurements? Dr.Hayes: spoke he made measurements at 39 close proximity to this proposed site to get base line to get ambient readings. Performed 40 theoretical calculations from base of antennas at ground level out to including 10,000 41 feet. 42 43 Cindy Allen:presented drawing.sound rays and radio waves and microwaves and 900 44 megahertz cordless phones and they go up to 500 megahertz and cell phones are 45 somewhere in there. There's danger of UB rays. She explained waves. Page 7 February 24,2009 Minutes 33 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4!7/09 1 2 Diana Warran, Wayland, dispute Attorney can't provide information on current on line 3 build out of all carriers that have licenses in Boston area. 4 5 She will fax tomorrow copies of maps that show all carriers in the area proposed and the 6 ones on line. A member of wireless committee consults for Metro, she's protecting her 7 client who is member of wireless company. Moratorium by National Fire Association 8 voted in 2003 for a moratorium. Mr. Hayes hasn't submitted any power density projected 9 for this facility it was not provided. Ms Warren will fax 2 copies of other town's that he's 10 (Dr. Hayes)had done a comprehensive report on. They are keeping you in the dark on 11 purpose.. . .12 ` 13 Dr. Hayes:demanded apology from Ms Warren stating that he's omitting certain 44 information tonight. Dr. Hayes: indicated see column-with power density included in the 15 column. 16 17 Chair: advised Ms Warren to stick to the facts and stay away from the interpretation. 18 19 Applause drowns out the name of next abutter, 257 Main Street,home values are hard to 20 follow but irrelevant. Don Elliott asked how many people use cell phone? How many 21 people here attend and vote at Town Meeting? At Town Meeting it was determined what 22 was in the best interest for the Town and voted clearly that there shall be no cell tower 23 without a 600-foot setback. 24 25 Chair want thru information to make a decision. Judy: read following letter from David 26 Deeds...(Paraphrase)....Church leadership and its members have taken steps with their 27 neighbors and community to get neighborhood feedback........as part of this process our. 28 Church has compiled a binder w/research and opinions and research studies compiled by 29 neighborhood residents. Investigated their concerns regarding health and encouraged by 30 the finding which was not paid for'by Wireless companies studies indicating that 31 such installation would be significantly lower than what would be necessary to cause 32 harm etc. 33 34 Atty. Morin: knows history of Building Inspector's interpretation of 600-foot setback. 35 36 He doesn't remember if T Mobile got a variance from ZBA in 2002? 37 38 If 600-foot setback was to prohibit any wireless installation regardless of what 3.9 installation or non-health related impact was then application of setback would violate the 40 Telecommunication Act. Inspector has obligation to interpret the Bylaw to be consistent 41 and in conformance w/Telecommunication Act. 42 43 Thea Fournier: spoke stating setbacks are allowable under the Telecommunications Act, 44 you can't prohibit a cell tower company from coming in but you can site where they go. 45 Requirements under First Circuit Court of Appeals asked for proof if the site is in the Page 8 February 24, 2009 Minutes 34 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4.17/09 1 right place and prove there are no alternative places etc. Process begins in the ZBA. 2 (paraphrase).... She would challenge in a court of law health effects, Telcom Act talks 3 about environmental effects it does not talk about health effects and it has been 4 challenged in Europe,most recently in France(Chair: stated we're not in France). We 5 don't want this kind of business in the middle of our neighborhood, and she wants her 6 rights. She expects PB as leaders of our Town to uphold our rights, otherwise she doesn't 7 know why you guys are sitting there, applause......she doesn't back down when she went 8 to court with Mr. Morin the last time it took effort on her part to stand up and do it 9 because she didn't have the Town Leaders backing up residents,if you won't stand up for 10 a law you shouldn't have it. Doesn't get it when a church morally doesn't care about the 11 neighborhood.Applause.....She feels bad that we don't have a Town that has the balls to 12 stand up for its residents. 13 14 15 Chair: asked if all PB members will be here next week? Board said yes. 16 17 Chair: ran thru criteria that PB has to use to judge the application. 18 19 1. Significant gap in coverage, there was demonstrated a significant gap in coverage 20 and proposed site fills the coverage gap. 21 22 2.- Where there is not an alternative site available. Speculative if Stevens Estate 23 would be available. RR said if gap is in Southern end of Rte. 125 then church site closes 24 the gap better than Stevens Estate would. If it's closing maximum gap along Rte 125 25 then Stevens Estate closes it's better than proposed site does but sacrificing the gap in the 26 neighborhood itself. 27 28 3 Health issues: all evidence is RF levels are substantially within compliance with 29 FCC guidelines. 30 31 4 Antenna can't fall down cause it's enclosed within tower. 32 33 5 Visual that it's ugly don't exist. 34 35 6 issue of applicability of Zoning Bylaw: Building Inspector is the Zoning Office is 36 the one who makes the interpretation of-the Bylaw and believe that no variance is 37 required. 38 39 7 RR: said Liz Fennessey brought up inconsistency over the years. The PB 40 followed the direction of the Zoning Enforce Officer. 41 42 Judy: said she has amended application w/church as co-applicant,named the other reports 43 the PB has NEPA etc. In-house reviews and VHB reviews were done in compliance with 44 the compliance with the Bylaw. .45 Page 9 February 24, 2009 Minutes 35 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4/7/09 1 Chair: said keep this open until the next PB meeting just in case something else comes in. 2 3 RR: said waiver issue in his opinion is requested that they don't comply with application 4 requirements .........entertained a possibility of it if they had requested a waiver when 5 they submitted the application but not at this point. WW: this Bylaw is clear. PB will 6 agree to keep the record open for time to comply. 7 8 Liz Fennessey: said on June 5, 2001 meeting occurred byPB in revisiting the proposal a 9 variance is required for a 600 foot setback?......Chair: advised you should go back to PB 10 Minutes of Meetings to fully understand your question. 11 -. 12 Judy wants a waiver on file until March 31, 2009. 13 14 Judy said other waivers that have been requested. 15 1. waiver distance at grade..... 16 2. waiver contours at 2 feet within-300 feet applies for monopole facility etc. 17 3 waiver for location of wetlands within 100 feet ...... 18 4 waiver for design landscape plan trees and shrubs.... 19 20 Judy wants these waivers because it's a collocation opposed to a new facility. 21 22 Steve Tryder: is another wireless joining this.application? No they-can't. 23 24 This meeting is scheduled for March 3, 2009. 25 26 Time now is 9:55 pm 27 28 8.9 re-write by Judy. 29 . .Judy submitted to Town Manager, Town Clerk the version of the Bylaw that she 30 submitted to the Board and accepted as part of the warrant by BOS last.night. That is the 31 only item on the warrant by the PB now. Down town initiative Bylaw was submitted and 32 will be on the warrant accepted by BOS and sponsored by Community Development 33 and not by the PB,,Committee continues to meet and if they wish to submit a Bylaw it 34 will have to be submitted as a citizens petition and would need to be heard by the PB as 35 with any other change. 36 37 RR: what's with storm water management?That's not a PB Bylaw. It was submitted and 38 accepted as part of the warrant. 39 40 TS: asked is there a place holder for specifics of the Bylaw wireless re-write?.......Judy 41 said there will be a full public hearing and the committee will come up with a revised 42 version of the Bylaw. TS needs clarification of word-smithing,.....send comments to 43 Judy. JS: wants to deal with this issue piece by piece. 44 Page 10 February 24, 2009 Minutes DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4.!7/09 - 1 Judy. asked if everyone could make March 3rd? PB said yes. March 170'MW can't make 2 that meeting. Everyone get back to Judy on this. 3 4 RR: wants Judy to send stuff to work and to home? 5 6 Liz: can the public attend a meeting on discussing of specifics of the Bylaw? PB said 7 Yes. 8 9 Mr. Tryder: said Judy and Curt are on the committee for Bylaw re-write. Did PB ask 10 them to write a different Bylaw than what the committee recommend? Chair:said they 11 had.no draft and had to put a place holder there because committee didn't come up with a 12 draft. RR: said original committee was formed 2 years ago, and PB stayed out of the fray 13 and committee didn't come up with a re-write of Bylaw. PB would not go another year. . 14 with no change. If they end up with 2 wairant articles then the Town can make their 15 decision. Mr..Tryder: said you have undermined the committee. 16 ; 17 Thea Fournier: said she attended 36 meetings and she is the only one that has missed one 18 meeting. She came up with a Bylaw and told it would never fly with BOS or PB,it was 19 probably Curt Bellevance who advised her to just do a citizen petition. She worked so 20 hard and nothing got done: She was re-elected to a board.and it took until September for 21 people to be elected to the board. Committee has two people employed with the Town, 22 and another person is a committee member who_works for wireless committee and that's 23 a conflict of interest. Thea: said Judy told committee if you guys don't get something 24 produced by middle of January we'll write our own. Thea: feels she was undermined and 25 given up hours of her time and feels totally undermined by the people on the committee 26 that.should be working with us them to get something good and done.. 27 28 TS: said you are describing a committee that you calla sham, .......a year ago the 29 committee had close to a finished draft and as a committee thought it's a good idea to get 30 buy in°of.BOS,.ZBA,and PB. Draft not circulated because didn't have it done until 31 February,Tim: asked do we hold out for another year or go forward w/citizens petition 32 and go with another year and Thea said l'et's go with a citizens petition. It's been 2 33 years,•_things,are due on Friday and we've seen nothing other than some drafts. 34 35 Perhaps if your committee produces a Bylaw to put in front of Town Meeting,we 36 endorse it, or not;:say no comment,if we don't like what we see(which is a possibility) 37 it's irresponsible:of us to go back in front of Town Meeting to say we have nothing else- 38 to offer you we are fulfilling our obligations that we have to the Town to at least be able 39 to produce something now and it's been 2 years with no Bylaw. Thea: accused Tim of 40 not coming to the committee meetings, Thea: wants to see the records of attendance. TS: 41 said as you know there are no records, and Thea is being disingenuous. Where was 42 Steve Tryder at these meetings? 43 44 Mr. Tryder: stated he quit. 45 Page 11 February 24,2009 Minutes 37 DRAFT Jen's edits 4/1/09 Mary's edits 4/6/09 Approved 4/7/09 1 TS: feels this is very disingenuous to create a committee and call it a sham and then 2 blame the PB. 3- 4 Cindy Allen: If somehow a Bylaw gets written that's clear and it gets put in 5 the warrant and it gets passed does it go into effect for this existing application? 6 MWsaid no. 7 8 Can the resident provide the PB the ability to say No? Chair: said two things don't have 9 any connection. 10 11 Thea: said the Bylaw as it stands is clear it's being portrayed as being flawed but it isn't 12 and it's clear. 13 - - 14 - .15 16 PUBLIC HEARING: 17 ® None 18 19 20 _ 21 ® APPROVE A MUTES OF THE MEETING: 22 January-27, 2009"Minutes". 23 24 Motion by JK to approve the January 27,2009"Minutes",2nd by MW,vote was 25 unanimous_ 26 27 ® PLANNING BOARD MEETINGS: '28 February 3,2009 cancelled 29 February 17,2009 cancelled _ -30 March 3,2009 31 March 17, 2009 '32 33 Motion by JK to adjourn the meeting,2nd by MW meeting adjourned.at 34 approximately 10:30. 35 36 37 38 39 40 By order of the Planning Board 41 42 43 Approved Page 12 February 24,2009 Minutes 38 Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 I Town of North Andover 2 Planning Board 3 March 3, 2009 4 Minutes of the Meeting 5 7:00 PM 6 7 Members present: John Simons, 8 Jennifer Kusek, Clerk 9 Richard Rowen, regular member 10 Timothy Seibert,regular member 11 Michael Walsh,regular member 12 13 Member absent: Courtney LaVolpicelo, alternate 14 15 Staff present: Judy Tymon, Town Planner 16 17 Staff absent: Mary Ippolito, Recording Secretary 18 19 20 Chair announced he would hear MetroPCS draft decision first. 21 22 POSTPONEMENTS: 23 none 24 25 DISCUSSION: 26 Traffic Signal: 27 a Mr. Thomson, 210 Holt Road, applicant has installed signalization at Holt Road 28 and Rte. #125, as required by the Board of Health — site assignment and the Planning 29 Board's Site Plan Review decision. There are remaining funds to be placed in an escrow 30 account to be used for future changes to the installed traffic signals. Mr. Thomson to 31 attend. 32 33 Judy did not get a response from Mr. Thomson. Chair: can get his attention by telling him 34 PB isn't going to give him some money back. JT: he may be on vacation. 35 36 DISCUSSION: 37 IN JT: would the PB like to have a discussion on March 16'h about the wireless 38 bylaw? The Committee would like to come to the next PB meeting to discuss changes. 39 Chair said whoever comes should not have the intent to fight. It's got to be a good faith 40 discussion on both sides. PB would like to see something submitted in advance by 41 Committee. Yes,put it on March 16'1 agenda. 42 43 44 Page 1 March 3, 2009 Minutes 3q Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 2 DISCUSSION: 3 S. Chair: regarding down town overlay district? Does it eliminate or modify with 4 setbacks? JT: there is language in there it's overlay district language about mixed use 5 and dimensional language. 6 7 Chair: start with a redevelopment mentality and then build the zoning around what you 8 think you are going to be able to do. Look at it as a parcel by parcel basis. To just think 9 you are going to just tweak a few things is going to make it better, it's not! Send PB a 10 version of it and ask Curt to come to our BP meeting. 11 12 , 13 Chair called for CONTINUED MEETINGS: 14 15 o John Cahill— 166 Salem Street,Map 37D, Parcel 21. Definitive Subdivision 16 known as The Captain Nathaniel Berry Homestead, consisting of a new 292 foot long 17 roadway and 3 new proposed lots each containing 25,000 s.f. &existing lot containing 18 32, 174 s.f. with existing single-family dwelling within R-3 zoning district. Meeting not 19 closed Waiver on file until March 31 2009 final plan submitted 2/18/09 20 21 JT: has a copy of 2-page review document that she had put together, and a memo from 22 Gene Willis on 3rd page, and copy of E-mail received from Chief Martineau. 23 24 Phil Christensen, Engineer,was present,there are two lots there now and existing house 25 and form A lot on the right,provided a 50-foot right of way, asked for a wavier on 26 roadway construction and basically have a driveway. JT: there should be a plan showing 27 without waivers the 3 lots similar to what was shown with the 4 lots. 28 RR: work to make sure plan is totally conforming 29 don't need another sheet showing cul de sac 30 sheet 1 is fine showing road not built according to Town standards 31 Deed restriction 32 Decision will be recorded 33 add another rain garden where depression was 34 Salem St. is at crest and is super-elevated towards cemetery 35 flow goes to 2 catch basins on either side of entrance 36 Gene wants driveway to go downhill. Match edge of existing pavement and then 37 go downhill 38 line of easement 39 will wall come down? 40 keep the stonewall if possible 41 42 Address: 43 Chief Martineau prefers 166 Salem St. address. 44 Residential Sprinklers: Page 2 March 3, 2009 Minutes Lila Judy took Minutes Mary made additional edits DRAFr 3/31/09 4/6/09 Mary's edits approved'4/7/09 1 Order of Conditions: required them for all subdivisions 2 life safety issues 3 feels very strongly that if sprinklers are properly installed they save lives 4 has no problem w/no hydrant and no cul de sac, show this in Order of Conditions 5 if more than 50%re-construction, would like sprinklers, life safety. 6 7 Changes to be made to plan: 8 add small rain garden at depression 9 10 Sprinklers: 11 Chair has no problem not requesting sprinklers for existing house but would like 12 to have 2 new houses sprinkled. 13 14 Jack Cahill: Existing house has been cleaned up,no construction done. Tiffany Lane 15 sprinkler installation was done at request of previous Fire Chief, as Tiffany Lane is 16 _ located far out country. Engineer has located fire hydrants at two locations on 166 Salem 17 St., and Mr. Cahill prefers not to install sprinklers. In consideration of time and distance 18 rational it seems that to sprinkle 166 Salem St.property would be unreasonable. 19 20 Chair: there are other circumstances that PB would ask for a structure to be sprinkled,not 21 just distance, additional factors as well were considered such as a very long driveway. 22 23 TS: are sprinklers an expense issue? 24 25 Mr. Cahill: thinks it's unreasonable,he doesn't see any benefit to sprinklers,they are 26 deficient rather than efficient. 27 28 Chief Martineau: feels strongly about approving sprinklers,Tiffany Lane being the first 29 one because it was so far out,there.were also additional residential structures in far out 30 areas that were sprinkled, also, Leanne Drive which is located next door to the Fire 31 Department was sprinkled. If sprinklers are properly installed then they don't cause 32 problems. 33 34 TS: in general has no issues 35 36 RR: in general has no issues 37 38 JK: in general has no issues 39 40 MW: in general has'no issues,has no problem requesting sprinklers 41 42 Chair: thanked Mr. Cahill for time and effort he put into this,keep this open and draft a 43 decision for the next meeting. 44 Page 3 March 3, 2009 Minutes Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 H John Cahill— 166 Salem Street,Map 37D, Parcel 21.—Watershed Special 2 Permit to construct a new 292 foot long roadway and 3 new single-family homes, 3 portions of the roadway, one house and a storm water detention/infiltration basin will be 4 within the non-discharge buffer zone. Meeting not closed Waiver on file until March 31, 5 2009 final plan submitted 2/18/09 Chair said keep this open and draft a decision. 6 7 8 DISCUSSION: 9 Sign Bylaw: Atty.John Smolak to present: 10 Chair: In a couple of cases we were able to waive filing requirements,notion of waiving 11 zoning related dimensional"requirements is not something we've ever had the right.to do, 12 doesn't want to take authority that the Board should not have. 13' 14 Atty. Smolak: is representing RCG,21 High Street applicant. They have been going thru 15 the multiple phase development for redevelopment of the East Mill site. Already gone 16 thru 2 phases, about another 2 phases away from completion. He wants a master 17 comprehensive plan for this site. RCG has been working w/Community Development to 18 create a better understanding of the signage plan for Machine Shop Village. Chair: RCG 19 is going to make a contribution to Community Preservation Committee for that signage 20 as well. Because this property is within the I-S zoning district it enabled RCG to propose 21 a PDD. He's provided a master plan and is referencing the last two pages regarding types 22 of signs,but in that master plan it didn't pay particular attention to the signage 23 provisions. 24 25 RR: As part of the overlay district, can a mini sign bylaw be set up within the district? 26 JT: Machine Shop Village is a historical conservation district, so it doesn't have a 27 corresponding overlay it governs appearance, get permission for certain exterior 28 improvements. 29 " 30 Chair: who is the granting authority for sign bylaw: JT: it Building Commissioner and 31 he issues the building permit. 32 33 Atty. Smolak requested that the PB approve the sign bylaw and condition it accordingly. 34 Our Bylaw has a waiver condition that allows PB to waiver requirements. See Section 35 11-5 as opposed to Section 6. 36 37 JT: summarized that Atty. Smolak is asking the PB to go beyond Section 16 the Overlay 38 District and waive the requirements.Atty. Smolak: yes,it's under the guise of a SP so if 39 PB doesn't like what they see then condition it accordingly. 40 41 JT: there should be consistency in design standard for Machine Shop Village and with 42 our down town area. 43 44 TS: RCG is doing a great job and he's inclined to help them out. Page 4 March 3, 2009 Minutes 42 Judy took Minutes Mary made additional edits DRAFT 3/31/09 4%6/09 Mary's edits approved 4/7/09 1 2 JK: agreed. 3 Atty. Smolak will file the article. 4 5 6 7 CHAIR CALLED for MetroPCS first: 8 R Metro PCS, 70 Elm Street, Special Permit,proposes to install 6-panel antennas 9 at a centerline of 80' in existing church steeple and related BTS cabinet within R-4 10 zoning district. Waiver on file until March 31, 2009. 11 12 Tim Seibert recused himself from voting on this petition., 13 14 Chair and PB.will edit draft decision: 15 16 Bill McQuade was present, stated he submitted a report which complied w/8.95di4 17 (location filing requirements of Bylaw) showing a map of other pre-existing and 18 approved wireless facilities in N. Andover and outside of N. Andover with one mile from 19 it's boundary. List of 40 sites were compiled by his RF Engineers. Some sites actually 20 contain two facilities in some cases. Note by Judy#16 should be Middleton. 21 22 Bill Pastuszek,Newton, MA,real estate appraiser, presented a real estate study. He 23 viewed 70 Elm Street site and collected information on some of the competitive sites and 24 prepared the study presented to the PB tonight. First part contains analysis and second 25 part contains data as back up for the report.regarding antenna in church steeple. Reached 26 conclusion that there is no impact on real estate value(report for the record). Look at 27 location D in Newton, Lincoln St.,mixed uses in addition to a Church,that steeple 28 contains communication equipment within the steeple but has an antenna plainly visible 29 on the top. Looked at condo sales and single-family sales;in looking at the sales in close 30 proximity to the Church he saw no real difference in prices based on market. 31 32 MW: in your methodology did you include talking with realtors,brokers, assessors,home 33 owners, and were they all included in each of these sites? Mr.Pastuszek, in some cases it 34 depends on the site.Newton site he spoke to brokers, assessors, appraisers,homeowners 35 in close proximity, spoke to church secretary, inquired if they received any feedback 36 about the installation and he didn't. 37 38 JK: how long have the towers existed? Mr. Pastuszek:Newton towers have been there 6 39 or 7 years. Location of tower on Mass Ave. in North Andover that tower is less then 2 40 years old. Tower in Haverhill 4 or 5 years. 41 42 Chair: PB is about to close the public hearing and asked that if members in the audience 43 wished to make a comment to please make the comment relative to something that the PB 44 has not heard already or that it pertains to one of the topics raised this evening. Page 5 March 3, 2009 Minutes VZ3 Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 2 Steve Tryder, Chestnut St., Is there any documentation,and did people who bought the 3 property know that a cell tower was installed in these Church steeples when they 4 purchased or sold? Mr. Pastuszek: some were aware and some were not. Mr.Tryder:is 5 this documented in your report? Mr. Pastuszek: doesn't know if it is. 6 7 Mr. Tryder: Mr. Pastuszek's study is a study of sales and neighborhoods that have 8 churches;there is no variable of cell antennas in that study,no documentation that the 9 buyer's knew that cell towers were installed. Mr. Tryder feels this report is invalid and 10 should have no bearing on real estate values. _ 11 12 Thea Fournier, Main St., asked Mr. Pastuszek who paid you to do this report? Mr. 13 Pastuszek, stated MetroPCS. 14 15 James Fennessey, 77 Elm St.,his daughters are being put to sleep about 65 feet away 16 from where the church has decided to put a cell antenna. Stated the Bylaw is being mis- 17 applied by the current Building Inspector. Read letter regarding applying the bylaw to 18 this application. Ironic part is that we're fighting our own Town, asking that BP allow 19 for the application of Bylaw as it was intended and applied in the past. Mr. Fennessey 20 said that RR said even though the outcome is different between the past two Building 21_ Inspectors the BP was consistent in following the decision of the Zoning Enforcement 22 Officer? RR said yes. Mr. Fennessey stated: last week Atty. Morin stated that possibly 23 reasoning behind current Building Inspector's recent decision which are contrary to the 24 previous Building Inspectors decision is that the current Building Inspector may feel that 25 any decision he makes while following a 600 foot setback decision would not hold up in 26 court. _ 27 28 Chair: you're getting into a little bit of hear-say,you're drifting, stay with facts,please 29 finish your statement ....Mr. Fennessey interrupted: ...the BP is following the decision of 30 the Zoning Enforcement Officer on advice of Town Counsel which means the Bylaw 31 passed at Town Meeting is being diluted by the opinion of one person which doesn't 32 seem right. By differing to opinion of Zoning Enforcement Officer and Town Counsel X13 who works not for the PB but for BOS the BP isn't making their own independent 34 'decision with or without input from its own independent counsel, any approval from this 35 Board is based on the Zoning.Enforcement Officer and Town Counsel. PB hands are not 36 tired here and a vote for approval is not mandated by any prior decision by any other 37 Town Board. 38 39 Steve Tryder, 300 Chestnut St., —what is appeals process? Chau: Within 20 days of a 40 filing of a decision you can file an appeal in State Court. Chair further answered Mr. 41 Tryder's questions regarding the appeal process. 42 43 RR: if you appeal the decision, you appeal because you may disagree with the 44 interpretation that the PB is following the Bylaw. Mr. Tryder: appeal would include the Page 6 March 3, 2009 Minutes , �, Judy took Minutes Mary made additional edits DRAFT 3/31/09 4/6/09 Mary's edits approved 4/7/09 1 fact that as a PB you are letting the Zoning Enforcement Officer make your decision for 2 you. Chair: we don't want to get ahead of this, PB will make their decision if you don't 3 like the results.of the decision you can appeal it. 4 5 Motion by RR to close public hearing, 2nd by MW, vote was unanimous. 6 7 Draft decision, edits were discussed. RR: check findings of facts: See Section#3 edit was 8 made by Judy. Chair: where did number 4 go,move the numbers down. MW section 17, 9 in findings of fact, documentation is now 16. Chair take what is at bottom of 3 and make 10 it 4 it will be 17 again, so make your changes first and then go back and check the 11 sections. Chair:'see condition 15, change after I years and make it 2 years. On 12 performance guarantee put in specific amount. JT first one is insurance,second is annual 13 maintenance in all prior decision we did not have an amount, Chair: in 3A just put instead 14 of SPGA just put the Town Planner and the same thing on 3B. JT: look at next page 15 under 4D applicant shall maintain....3B may have been a condition of a wireless facility 16 of Town's own property? Chair take 3B out. JT in 4B there was reference to maintaining 17 ... Chair that should be sufficient then. JT bond amount prior to start of construction is 18 specified it's for$5K. MW in 4A SP issues shall be valid for 3 years,is that what we just 19 corrected? RR no there are two different things. 20 21 Motion by RR to approve SP for MetroPCS, LLC and Trinitarian Congregational Church, 22 as amended a Wireless SP for 70 Elm St. 2nd by MW,vote was unanimous. 23 24 Chair thanked everybody for their civility and patience and... There was a boo from Mr. 25 Tryder who interrupted and said your decision was made long before people lined up to 26 talk to you...thanks for representing your community. 27 28 29 Please note: Chair then moved back to 166 Salem Street(Cahill project). 30 31 32 PUBLIC HEARING: 33 None 35 36 37 Motion by RR to adjourn,2nd by M vote was unanimous. 38 39 40 By order of the Planning Board 41 Approved 42 43 Page 7 March 3, 2009 Minutes Judy took Minutes Mary made additional edits DRAFT 3/31/09 - 4/6/09 Mary's edits approved 4/7/09 1 Plse. note: The Planning Board reserves the right to take items out of order and to 2 discuss and/or vote on items that are not listed on the agenda. 3 Page 8 March 3, 2009 Minutes DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 I Town of North Andover 2 Planning Board 3 Minutes of the Meeting 4 Monday, March 16, 2009 5 Town Hall, 7:00 PM 6 7 Members present: John Simons, Chairman g Jennifer Kusek, Clerk 9 Richard Rowen,regular member 10 Timothy Seibert, regular members 11 12 Members absent: Michael Walsh,regular member 13 Courtney LaVolpiecelo,alternate 14 15 Staff present: Judy Tymon,Town Planner 16 Mary Ippolito, Recording Secretary 17 18 Chair called the meeting to order at approximately 7:05 PM. 19 20 21 POSTPONEMENTS: 22 none 23 24 25 Chair called for NEW PUBLIC HEARING: 26 0 Town of North Andover— 1475 Osgood Street,Map 34,Parcel 16. This 27 application is for a Site Plan Review Special Permit and is a renovation and addition to an 28 existing office building for use as a police station. One-story addition of 3,064 sq. ft. to 29 accommodate a sallyport and detention area within CDD3 zoning district. Application 30 received February 2009 31 32 Ray Santilli,Assistant Town Manager presented,this is Site Plan Review Special Permit 33 for a renovation of what used to be the Merrimack Valley Credit Union to make it into a 34 Police Station for the North Andover Police Department to utilize. Kevin Nigro is the 35 Project Manager. Town Meeting voted in May of 2008 to purchase this property at 1475 36 Osgood St.,hired an architect and is currently working wBuilding Committee and Police 37 station have drawn up tentative plans for the restoration of the building. Police Dept. 38 project requires an addition on backside of building to house sallyport to transport 39 prisoners into building and cellblocks along with State and Federal requirements etc. 40 41 Chair: what is traffic pattern,lighting,how close to residential property and drainage? 42 43 Mr. Santilli: Police will utilize entire building as is presently constructed,public access is 44 by Orchard Hill Road,back side of building is restricted to police personnel&marked Page 1 March 16, 2009 Minutes of the Meeting �1 DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 vehicles. Two control gates are located to control access;public access is on Osgood 2 Street side. Mr. Breen's property is the only resident adjacent to 1475 Osgood St. 3 Several businesses located at backside which access off of Orchard Hill Road, a dance 4 studio, gas station, Dunkin Donuts, etc. is located to the side. 5 6 Worked funding thru capitol improvement budget for FY'09. No changes to be done to 7 outside of building other than securing access to back addition. Fire Department has 8 approved passage of fire trucks thru area. It's a one-way counter clockwise access 9 around the building. 13' 7" foot roadway on backside of building for police vehicles to 10 exit. 11 12 Judy: replacing existing impervious surface-there is actual decrease in impervious 13 surface. Mr. Santilli: renovating basement level and first floor,utilizing entire second 14 floor and going to ZBA for variance for rear setback. 15 16 Judy: submitted a review today,requesting a waiver of community impact, fiscal impact 17 and traffic impact. Mr. Santilli: is not requesting a waiver of the Commonwealth 18 Review because there are no requirements for that, landscaping will remain as is. 19 Meets required parking under zoning, lighting will stay the same and be downcast and 20 will add more lighting in sallyport area. 21 22 JS: flat roof, any run off? Kevin Nitro,PMA Consultant Services,developing plumbing 23 plans and will be collecting from flat roof the rainwater and enter into existing drainage .24 system, this should introduce less water into the system.. 25 26 Mr. Santilli: spoke w/previous owners were told there have been no identifiable issues 27 regarding drainage. 28 29 Memo from Gene Willis,DPW,identified a few catch basins that need to be lowered and 30 paved around them. 31 32 Fire Department provided a letter stating fire truck can get around the perimeter of the 33 property. Applicant needs to provide information to the BOH stating current septic 34 system will be able to handle this new usage, as this will be done at the time of 35 submission of the building permit. 36 37 Chair: keep this open, advised Judy to prepare a decision. 38 39 40 Chair announced that he would go out of order on the agenda because there are 41 more people here for the Wireless Bylaw: 42 43 44 CHAIR called for CONTINUED MEETINGS: Page 2 March 16,2009 Minutes of the Meeting 9 DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 2 p John.Cahill— 166 Salem Street,Map 37D, Parcel 21. Definitive Subdivision 3 known as The Captain Nathaniel Berry Homestead, consisting of a new 292 foot long 4 roadway and 3 new proposed lots each containing 25,000 s.f. &existing lot containing 5 32,174 s.f with existing single-family dwelling within R-3 zoning district. Meeting not 6 closed Waiver on file until March 31 2009 final plan to be submitted on 1`16/09. 7 Judy's edits: see waiver for 50-foot right of way strike it under Special Conditions_Phil .8 Christenson G did submit corrected information such as zoning district, rain garden. 9 Motion by JK to close 166 Salem Street Definitive Subdivision and Watershed Special 10 Permit, 2nd by TS, vote was unanimous. 11 12 RR: page 2 Earth Removal Permit, is it pertinent-is it prejudicial in PB decision? Chair: 13 take it out and include it in Findings of Fact instead. Say they don't need earth removal 14 permit.... etc. Chair: put Earth Removal Permit language and add dates in Watershed SP 15 as well. Chair: in Finding of Fact put it toward the beginning of this decision see C or D 16 final proposed plan, say...is less intrusive,but better environmental impact, for example 17 they don't have to apply for earth removal permit. - 18 19 Chair: under 2 first bullet that is the one. Chair: reference that what PB has done ...that 20 PB waived actual construction of roadway to Town standard. Chair: we need it for the 21 record because if PB ever wants to do this in the future it needs to be clear what PB did, 22 if someone comes back in the future and they want snow removal they won't be able to 23 get it because it's a private way. Judy did include this is the decision but Chair wants it 24 in writing for the record. Chair: there can't be any further subdivision of the property, 25 can't grab off another lot for the future....put that in decision. Chair: at end of list of 26 waivers,reason is because of positive environmental impact and better sensitivity to the 27 land 28 29 Chair: all street address need to be on intersection of Salem St. 30 31 RR: granite stone have all three street numbers on it on a stone bollard. 32 33 RR: will stonewall on Salem St.be rebuilt? 34 35 Jack Cahill: stonewall will definitely be rebuilt,blended and rounded and replicated at 36 existing fence. Chair: suitable plan will be submitted for wall and fence to be reviewed by 37 Town Planner. 38 39 Strike sign saying private drive. 40 41 JK: see hours of operation during construction ..Say"hours of construction". 42 43 Motion by RR,to approve Definitive Sub as amended this evening,2nd by TS, vote 44 unanimous. Judy send a copy before you file. Page 3 March 16, 2009 Minutes of the Meeting DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 2 3 4 CONTINUED HEARING: 5 9 John Cahill—166 Salem Street,Map 37D,Parcel 21.—Watershed Special 6 Permit to construct a new 292 foot long roadway and 3 new single-family homes, 7 portions of the roadway, one house and a storm water detention/infiltration basin will be 8 within the non-discharge buffer zone. Meeting not closed Waiver on file until March 3' 9 2009 final plan to be submitted 316/09 10 11 Chair: current design limits the intrusion by limiting the detention pond.Chair: Put in 12 something like the overall design of.....Chair: earth removal permit do the same as 13 subdivision,wrap earth removal into lesser impact.Judy already has it in there. Judy said . 14 she would take out something. 15 16 Motion by RR to approve a Watershed Special Permit for 166 Salem as amended this 17 evening, 2nd by JK,vote was unanimous. 18 19 PB thanked Jack for working w/them on the 3-lot subdivision; it should look much better 20 than a traditional Definitive Subdivision. 21 22 23 LOT RELEASE 24 w Dean Chongris—Redgate Subdivision. Developer is requesting two Lot releases 25 for lots 1 and 2. Lots 3 and 4 were previously released in August 2007. 26 27 Mr. Chongris could not make this meeting,however,he stated that he would send an 28 attendee to represent him tonight. Apparently,the attendee was a`no show'. 29 30 "Chair: PB isn't going to give Mr. Chongris a lot release for lots 1 and 2. Chair: there are 31 water problem that go onto Salem St.,which caused an accident. 32 33 Judy made a site visit and explained her site visit of this property. 34 35 Chair: Have Gene Willis,DPW, and direct Mr. Chongris with making changes to redirect 36 the water flow issues. 37 38 RR: Mosquito Brook is underneath this property and it floods adjacent lots. Flood plain 39 for Mosquito Brook is on the other side of the street. If this complex is not done just right 40 then it's difficult to manage the site. Builder dug up more than they should and haven't 41 pulled down tree coverage. Chair doesn't want to release any more lots until they resolve 42 their problems.PB needs to know from Gene Willis if there are problems or deviations 43 from the plan. 44 Page 4 March 16, 2009 Minutes of the Meeting 5� DRAFT 4/1/09 4/6/09 Mary's edits 1 approved 4/7/09 2 DISCUSSION 3 9 Wireless Bylaw—Members of the Wireless Bylaw Committee will be present to 4 discuss their version of proposed changes to the Wireless Bylaw. 5 6 .7 Judy provided the PB with a summary tonight. She provided a version of the Wireless 8 Bylaw that she drafted presented to the Town Clerk and it's on the warrant. There is a 9 version of the Bylaw that the Committee has drafted. 10 11 The following is a summary: 12 Matthew J. Ginsburg, Esq. -Chairperson of Wireless Bylaw Committee. Atty. Ginsburg -13 has a disagreement between members of what the makeup of what the Bylaw should 14 contain. Because.the Committee did not come up with a draft Bylaw in time to have 1.5 something placed on the warrant to present to the PB an alternative-to.Judy's draft 16 (doesn't know:to what extent.PB had input to Judy's draft)but he understands his :17' opportunity is to present to the?B an alternative to what Judy has provided. 18 19 Atty. Ginsburg: Regarding review.of redline version there are many more things in 20 common than differences. Tried to retain current Bylaw and what Judy proposes. Most 21 significant difference has to do with setback section. In Judy's draft there is a distinction 22 drawn between application of a 600-foot setback to new construction of new towers and 23 to existing structures. His draft does not contain a distinction of application of 600-foot 24 setback. -25 26 He wants to apply the setback only to properties in which:residential; educational,or 27 child care usage were in existence at the time of the application;so that bring back a lot :28 of sites.that might be zoned residential but don't have a residential,educational use or 29 childcare use on the property. His draft opens.up a lot of areas in the Town for potential 30 placement of Wireless facilities.Make sure there are sufficient areas in Town for 31 consideration of structures,but avoid placement near residential and densely populated 32 residential areas. He tried to make uniform to both types of applications. 33 34 Karen Carroll: explained that track changes from existing Bylaw are there, and then 35 Committee did their changes in different colors. 36 37 TS: who else has seen their version of setbacks? Atty: Ginsburg: ZBA was not provided a 38 copy of this information. Assumed that Atty. Urbelis was ce'd on a lot of 39 correspondence that went back and forth. 40 41 Judy: Atty. Urbelis has written memos regarding setbacks regarding changing the 600 42 foot setback. 43 Page 5 March 16, 2009 Minutes of the Meeting 51 DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 RR: this is a recommendation from the Committee, at this point PB has what they thought 2 would be good and is on the Warrant and this is a recommendation from the Committee 3 and PB should do everything they can to help get that in front of the Town and the Town 4 can.choose what the Town thinks is the better way to go. RR wants to spend time 5 critiquing it the Committee's Bylaw now. 6 7 Please note: Edits are not submitted in any chronological order. See attached redlined 8 version of Bylaw for reference: 9 10 RR: regarding put tower in shallow field,.the height could only be 10 feet high, wouldn't 11 work from a practical point of view. ....should be corrected,it's too restrictive.(Judy: see 12 page 3 C ii). 13 14' RR: regarding antenna can't be higher than-the tallest building...too restricted and modify 15 this on the floor of Town Meeting if need be. 16 17 RR: if open area not camouflage with dense trees (scenic landscapes and vistas under 4D). 18 19 RR: Filing requirements 5 D 2&3....putting a lot of detail on a map at a scale of 1 to . 20 1500...showing existing structures, RR doesn't think you're going to get there. 21 22 RR: See page 4, 1 second portion of sentence V 1 .....minimum setback of 600 feet 23 etc...Atty. Ginsburg: it should say from the property line of all buildings or structures or 24 from properties,which contain buildings or structures. ,25 26 RR: 3B 2 applicant shall burden there are no feasible existing structures etc....-RR: it's 27 not the correct burden to put on applicant. 28 '29 RR: 3A 2 it says shall not exceed terms and conditions of SP etc. what does Atty. 30 Ginsburg mean by that? Atty. Ginsburg: it's verbiage in SP now. Chair: it makes 31 reference for Site Plan Review but this is for a Special Permit for a wireless facility only. 32 33 RR: has language gone away saying we treat this like a license for three years? Judy: she 34 took that language out of the version she presented,the provision that requires the 35 applicant to renew the license in three years. 36 37 RR: language about fines isn't enforceable! Judy: she took that language out. 38 39 Atty. Ginsburg: asked what is history of trying to collect fines? RR: if PB tried to collect 40 those fees we would be in court. Chair said if you tie fine with license approach there 41 was a technical violation because some licenses were not current,however, if someone 42 did violate the Bylaw the fine remedy should be the same one that exists anywhere in the 43 Bylaw for the same reason that anything else exists,but wordsmith it. 44 Page 6 March 16,2009 Minutes of the Meeting �� DRAFT 4%109 4/6/09 Mary's edits approved 4/7/09 1 RR: if applicant wants to change out antennas then he should come back for a 2 modification of the SP to change equipment, provided that it is no worse than it was then 3 he should be able to replace old antennas....see maintenance section. 4 5 Atty. Ginsburg: there are monitor and maintenance requirements already. 6 7 RR: if every three years you have to demonstrate you are operating within bounds of SP? 8 9 Atty. Ginsburg: monitor of noise levels, general maintained of structural integrity. Atty: 10 Ginsburg: within 90 days they prove that certain standards are being met and that at 11 annual intervals of that date. He thinks RR is referring to the renewal requirements? 12 Atty. Ginsburg: his Committee voted to keep Judy from throwing out the renewal 13 requirement for 3 years,the important part are the monitoring requirements because it's 14 important that the carriers be held to those and fines are important. Chair: If PB didn't 15 get certification on a wireless facility to say that we can collect$300.00 a dollar for each 16 day that it's late is a enormous stretch etc. 17 18 Curt Bellevance: Atty. Urbelis recommended if we follow any violation of Bylaw a letter 19 should go to violator saying why haven't you done what you were supposed to do, send • 20 another letter if you don't respond within 30 days then the following measure would take 21 place. 22 '23 TS: what if they ignore the final letter? RR:then shut them down, carrier would do so at 24 their own risk, PB is saying they take the whole process seriously,they could put this as 25 language in time for Town Meeting. Chair' Judy draft this language along lines that RR 26 said. 27 28 RR:under monitoring and maintenance,measure the before conditions and the after 29 conditions but on a yearly basis (existing and current are one in the same). Atty. 30 Ginsburg: Annual intervals from date of issuance of SP. 31 32 RR: Edits: See page 10 section 8 VIII p2. If applying for a permit in order to determine 33 compliance provide statement existing and maximum of....RR doesn't know if this is 34 possible to do? Chair: it's the second part that is a problem because it's moot. 35 36 Atty. Ginsburg: it refers to permit being requested as to collocation in future. RR: what's 37 happening if applicant wants to install 3 antennas,but application is for 6. However,what 38 is max he can put up?However, applicant is not in a position to say how many antennas 39 will be put up by other cell tower companies. Ask applicant to forecast the maximum 40 that only he can do. Chair: take the word maximum out and it will be fine. 41 42 Chair: in the draft that PB had they took new tower in one category, additions to existing 43 towers and effectively put into the same category if you hid something inside of an 44 existing building that that was the same. Chair: believes that Atty. Ginsburg's draft Page 7 March 16,2009 Minutes of the Meeting 53 DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 makes no exclusions for anything except for-existing towers,if existing tower is within 2 600 feet? 3 4 Atty. Ginsburg: he believes collocations require it to comply with 600-foot setback. 5 6 Atty. Ginsburg: impact of tower monopoles visual impacts on property values, Bylaws .7 are designed around. There is legal president that supports notion that even aside of 8 visual impact, esthetic issues and property values and consideration of property value 9 provides justification for requirements for setbacks from wireless facilities. In 2007 case 10 in N.H. court-found apart from visual impact that decline in property values was 11 sufficient evidence to support the ZBA decision denying a permit, (it was a new tower). 12 13 Chair: 600-feet is a presumption that there is an impact on property values? In case of 14 monopole adding additional antennas what is effect on property values? 15 16 Atty. Ginsburg: governed by 40A Section 6 regarding legally non-conforming uses, 17 needs reference to statue requirements and could be reconsidered,major issue is 18 placement on existing structures, having setback in those setbacks is defendable. Town 19 of Concord requires 500-foot setback from existing structures such as childcare, school 20 uses. Town of Hamilton etc. ......Town of Wakefield etc....... 21 22 TS: interesting you mentioned 500 feet from structures and not from property lines. Have 23 any of these been challenged? 24 25 Atty. Ginsburg: he doesn't know. 26 27 TS: has anyone tried to site one and been denied?Atty. Ginsburg: doesn't know. 28 29 Chair: N.H. case is free standing structure. Atty. Ginsburg: largest issue is property 30 value issues. Chair: if you can't see it nor hear it why do you need 600-feet? 31 32 Atty. Ginsburg: property value isn't born of visual impactor noise; decline in property 33 value by itself is substantial evidence for denial of the permit. 34 35 RR: is your intent to say no lattice-no guide towers in town? 36 37 Atty. Ginsburg: Gin Valanti said visual and standpoint they are undesirable. 38 39 Thea Fournier,Main St.,we don't get sued for having setbacks. Atty. Ginsburg was clear 40 in giving reasons for setbacks. Courts don't prohibit setbacks. It's a matter of whole 41 Bylaw prohibits provision of wireless service communications. Issue is there is 42 significant gap in coverage? Wireless people go to court and find there are alternative 43 sites they can use to uphold their setbacks. 44 Page 8 March 16, 2009 Minutes of the Meeting �� DRAFT 4/1/09. 4/6/09 Mary's edits - approved 4/7/09. 1 Chair told Judy to make edits tonight to PB version but give Wireless Committee a 2 version of a PB working copy. Put this on as discussion for April 7, 2009 PB meeting 3 agenda. Town Meeting is May 1201. Judy: what is date for public hearing for annual 4 Town Meeting? Formal hearing on 21"and talk about it on the 7h for discussion. 5 6 Karen Carroll: is there a placeholder on the Warrant for a draft of the Committee's 7 Bylaw? 8 9 Chair: only article on Warrant is PB article at this point as the Warrant is closed as there 10 wasn't an article submitted by the Committee. PB objective is to review the differences 11 to as few as possible so they have a consistent article. PB can edit the article as long'as 12 PB doesn't change the scope of the warrant for instance,PB couldn't take 600 feet and 13 make it 1000 feet because it wouldn't be in the published version. If Chair submits PB 14 version and there are substantial changes that the Committee disagrees with then 15 -Committee can make amendment on the floor of Town Meeting to change it. 16 17 RR: It's too late for a citizens petition article, Warrant closed on March 6h. 18 19 TS: all the more reason if this were to happen that we minimize all of the other bits of 20 discrepancies so if you did have to do an amendment it will be a very brief and direct 21 amendment. 22 23 Steve Tryder, Chestnut St., why is there a separate PB version of the Bylaw? You asked 24 Judy-to write her version of the Bylaw outside of the committee, and you wanted it done 25 by her and not by the Committee,would you agree we have 2 different versions? 26 27 Chair: fact is there is one article on Warrant for Town Meeting and it's PB article that's 28 the only fact that exists and that's a reality so not sure what purpose it would serve by 29 going back it is what it is. 30 31 Mr. Tryder: Committee was charged with drafting the Bylaw and bringing it to Town 32 Meeting. At the same time,people who were serving on the Committee were writing a 33 separate Bylaw from the Committee and here we are tonight looking at the differences in 34 the versions. Why did PB ask for a different version outside of the Committee? 35 36 Chair:because we wanted to get a version that we could put on the Town Warrant before 37 it closed so that it didn't look like in the PB's view that the Committee was going to be in 38 a position to have that. 39 40 Mr. Tryder, did you know that? Chair: we asked the Committee many times for their 41 version of the Bylaw. At this point it's done. 42 43 Mr. Tryder: he knows,but he's questioning the process and why it's gotten more 44 confusing. Page 9 March 16, 2009 Minutes of the Meeting DRAFT ,4/1/09 4/6/09 Mary's edits approved 4/7/09 1 2 Chair: fact is there is only one article,let's not go back and rehash the past,if you want to 3 accuse the PB of bad motives you are certainly willing to do that but the point is... 4 5 Mr. Tryder: interrupted....said he was asking an objective question .. 6 7 Chair: gave an answer there was no article coming forward and PB was not going to go 8 another year without a revised Bylaw so we put it in. 9 10 Mr. Tryder: did you go to the Committee and ask for their draft before the Warrant? Did 11 you send somebody from the Board? 12 13 RR: If Committee had wanted to submit an article for the Warrant they could have 14 done so themselves. 15 16 Mr. Tryder: when you asked Judy to do rewrite,PB didn't say they are doing their own 17 separate version, this version is not a finished product placed on the Warrant. Committee 18 didn't have a chance to put their unfinished draft on the Town Warrant. From what he 19 sees the PB version is not a finished product by the time the Warrant deadline came 20 about. 21 22 TS: the issue was discussed several times at several meetings during the first year of the 23 Committee it was the reason why the first irritation of the Committee did not move 24 forward before putting something on the Warrant was because of this whole discussion 25 having the Bylaw committee get into an?????process with that PB, ZBA, BOS. He 26 would be surprised if you speak on behalf of the Committee and that the Committee did 27 believe that the PB was not considering doing something like this. 28 . 29 RR: Mr.Tryder go back and look at all of the tapes of the PB meetings and you will find 30 that a couple of months ago we discussed in this public forum that if the Committee 31 doesn't come forward with an article because if they don't we are not going to sit here 32 two years in a row with a deficient Bylaw and do nothing. 33 34 Mr. Tryder: did you send a letter to the Committee? 35 36 TS: no we didn't. 37 38 Chair: this discussion is going nowhere, ....please... 39 .40 RR: if you had the .... 41 42 Atty. Ginsburg: interrupted stating that Mr.Tryder does not speak of the Committee. 43 Page 10 March 16,2009 Minutes of the Meeting �"G DRAFT 4/1/09 4/6/09 Mary's edits approved 4/7/09 1 Mark DiIppolito: he understands why the second version of the Bylaw was created to get 2 it on the Warrant but since it doesn't have"to be final instead of it being one versus the 3 other why can't the one Judy wrote be amended as we discussed including the setback 4 which the Town residents voted on the last time there was a vote. Is there a particular 5 reason why the PB wants to remove the setback? 6 7 Chair: that's what we're having a continued discussion about etc. Chair thanked 8 everyone for coming to tonight's meeting. 9 Jennifer not available on April 7t'PB meeting, other PB members are probably available. 10 11 12 Motion by RR to adjourn tonight's meeting, 2nd by JK,meeting adjourned at 9:30 pm. 13 14 15 15 By order or the Planning Board 17 18 19 20 21 22 Approved 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Plse. note: The Planning Board reserves the right to take items out of order and to 41 discuss and/or vote on items that are not listed on the agenda. 42 43 Page 11 March 16, 2009 Minutes of the Meeting sr J COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. And METROPCS, INC. DEFENDANTS AFFIDAVIT OF PETER B. MORIN, ESQUIRE PETER B. MORIN, first being duly sworn, hereby deposes and says as follows: 1. I am an attorney licensed to practice in the Commonwealth of Massachusetts. 2. I have personal knowledge of all statements made herein. 3. I have personally reviewed all of the papers and exhibits that comprise the summary judgment filing in which this affidavit is contained. 4. All of the content contained in Exhibits K and L attached to the motion for summary judgment were obtained by me from on-line searches of the North Andover Citizen and the Lawrence Eagle Tribune newspapers. In each instance, I have copied and pasted the complete text of each article and letter as they appeared in the newspapers, and I have not altered any of the content therein. The text in the attached Exhibits K and L is identical to that contained in the on-line publications. 5. All of the content contained in Exhibit Q to the motion for summary judgment was obtained by me from on-line searches of the Zoning Bylaw for the Town of North Andover, Massachusetts. I downloaded and printed the complete text of Sections 2.68 and 8.9 of the Zoning Bylaw at it appeared on the Town of North Andover website, and I have not altered any of the content therein. The text in the attached Exhibit Q is identical to that contained in the on-line version of the Bylaw that is available for download on the Town of North Andover website. Signed under the pains and penalties of perjury 's 15th day of July,2009. Pete BO #3551 5A McDermott,Quilty& Miller LLP 131 Oliver Street, 5d' Floor Boston, MA 02110 617-946-4600 2 K News Articles Regarding Wireless Application NORTH ANDOVER CITIZEN http://www.wickedlocal.com/northandover/archive/x776482541/ Trinitarian Church steeple may be new wireless antenna site By M. Renee Buckley/rbuckley@cnc.com .Thu Dec 11, 2008, 03:29 PM EST Another cell phone antenna installation for a North Andover church is being considered, this time for the steeple of the Trinitarian Congregational Church on Elm Street. Two companies have approached the church for access to the steeple — Metro PCS and T-Mobile — and so far the church has authorized Metro PCS to apply to the town's Planning Board for permits. The church has not, however, decided whether it will go through with leasing the space to the two companies. "We started by allowing Metro PCS to approach the town to fill out the application and be reviewed by the Planning Board so we could get feedback from the town on their prospective," said Trinitarian Congregational Church Moderator David Deems, a Boxford resident. Deems said the church decided to start with getting the town's perspective, because the town has faced the issue of cell antenna installation several times, and the church wants to understand the town's position before making its own decision. "This is part of our information gathering so we as a congregation have access to all perspectives," Deems said. Another attempt by the church for information gathering was via a public information meeting held Monday night. There, representatives from both Metro PCS and T-Mobile spoke before a crowd of congregation members, church neighbors and parents of students in the church's Century Preschool, to present their plans for the antennas. About 40 people turned out and asked a variety of questions ranging from concerns about the aesthetics of the projects, to whether the installation would be safe for neighbors, churchgoers and the young children who attend regular preschool classes at the church. In regard to the appearance of the wireless installation, nothing would 1 be visible from outside the church, said Bill McQuade of New England Wireless Solutions, which represents Metro PCS. The installation for Metro PCS would entail putting in six antennas behind the louvers of the church steeple. The louvers would appear the same, he said, but would be rebuilt fiberglass replicas. He said an example of the louver would be available this week at the Planning Department Office at 1600 Osgood Street. Completing the installation would be the insertion of an 80-foot cable down the centerline of the church, reaching to the basement where a small equipment area would be installed. T-Mobile's installation would involve four antennas in reconstructed fiberglass steeple windows —this maximizes the church's available space for wireless antennas — as well as its own equipment area in the basement Many at the session raised the issue of possible health effects the wireless installation could have on neighbors, especially children. There to answer questions about those effects was Don Hayes, who described himself as an independent consultant with a Ph. D. in radiation safely, working in the field for 30 years. At the later inquiry of an audience member, he told the group he had been hired for the evening by Metro PCS. Asked at what levels a person can get cancer from wireless antennas, based on studies, Hayes said, "We're talking RF radiation, not ionizing. Studies show RF shows -it's neither carcinogenic nor cancer promoting." When asked what studies he was referencing, he told the group he got his information on carcinogenic properties from the World Health Organization database online, specifically a 2005 study in Geneva, Switzerland. Church neighbor Thea Fournier — who has opposed the town in the past due to possible infractions of the town's wireless bylaw by allowing such facilities within a residential area .— said the World Health Organization study was funded by the wireless industry. Fournier works as a nutritionist and environmental health consultant. She said to the group, "We are hearing from the industrytonight. Just like the tobacco industry hid the truth and the asbestos industry hid the truth." It was Fournier who asked Hayes who was paying him for the evening. He eluded answering the question for several minutes before it was asked again and he said, "Tonight it's Metro PCS." 2 Shortly after, another neighbor asked if Hayes could point to a long- term study that would show the wireless antennas would have no effect on her or her family. Hayes said while there are studies those studies have "limitations." "Can you say there's a study? Yes or no," she asked. He said, "I'm not going to be forced to say yes or no." Another audience member said it was unfair to force Hayes to say yes or no, as it wasn't a yes-or-no question. "You're forcing him to go on record for something he can't substantiate," he said. Hayes went on to say while he has a list of 35 studies, the maximum long-term study on an animal was two years. Deems stepped in shortly after to request Hayes provide the citations for those studies in order for the church to have the information for reference. More information needed Audience member Karen Carroll, a clinical nurse, requested the church provide an independent consultant to shed some light on the topic of radiation effects, given that Hayes had been paid by Metro PCS. Deems said they had already planned on hearing from a consultant the town had hired. However, Carroll, said she knew the town's consultant wouldn't be a medical expert, as the Telecommunications Act of 1996 prevents health issues from being used to deny a special permit to a communications company. Deems said they would look into it, and in an interview the following day said, "I'm going to go to the Board of Health and see if I can get a list of radiation safety specialists." He added, "It's hard for me to say whether we'd be able to bring someone in with that perspective. I just don't know how easy those people are to find. But we will certainly look into the category of other experts who are available." Asked if he had concerns about the safety of the wireless installation, given he spends so much time in the church, Deems said he did not. "I think there's strong evidence that there isn't really an effect [of the radiation]. But I understand it's always very challenging to draw specific conclusions because there are so many complex factors," he said. Asked on what basis the church will finally make its decision, Deems said he couldn't share that information. 3 "We have a decision-making process for these kinds of issues inside of the church, and we will follow that process," he said. "It's our process on how we manage our internal operation, and we just don't share that with the public." Neighbor Liz Fennessy said Wednesday she was, denied her recent request that the church council — which oversees the operation of the church — meet with a group of concerned neighbors to discuss the project. "The response I got was that the church council was present at the Monday meeting and therefore there was no need to meet with them personally," Fennessy said. "I was very disappointed to hear that. I've requested the names and addresses of the council because there are people who want to write them letters," she said. The council did not introduce themselves to the group at Monday night's meeting. Added Fennessy, "We will be asking to speak with the congregation after a service in the next few weeks and we're very hopeful that the church will accommodate us with that." Fennessy and neighbors have collected a number of names petitioning the wireless facility installation, Fournier said. As for the church's next step, Deems said it is to continue gathering more information, especially from the town, which will come in the form of the Planning Board's decision on the Metro PCS application. That decision is expected to be handed down at the board's Jan. 6 meeting. Following the results of that meeting, Deems said he expected the church to make a decision sometime in January. He said that should the church decide to go forward with the project, it would likely sign contract with both Metro PCS and T-Mobile. He said he could not disclose the amount of money offered by the companies to lease the space in the steeple. He also didn't know yet when the antennas would go in, should the church decide to sign contracts. http://www.wickedIoca1.com/northandover/archive/x1647202449/Is- church-wireless-installation-legal Is church wireless installation legal? By M. Renee Buckley/rbuckley@cnc.com Tue Dec 23, 2008, 08:00 AM EST 4 The Trinitarian Congregational Church is considering leasing its steeple to two wireless companies — Metro PCS and T-Mobile — in order for them to install a total of 10 antennas in the Elm Street structure. So far, the church has authorized Metro PCS to apply to the town's Planning Board for permits but has not yet made a decision as to whether it will go forward with a lease. A number of signs posted around the neighborhood read "No Cell Tower Antennas at Trinitarian Congregational Church" and "No Towers Near Our Homes: Protect your neighborhood and preserve our district!" but one important question remains: Is it legal to install a wireless antenna in a residential neighborhood? According to different interpretations of the town's Wireless Bylaw, some — including Town Planner Judy Tymon and Building Inspector Gerald Brown — say it's legal, and others — including Methuen Attorney Joseph Fitzgibbons and church neighbor Thea Fournier — say it's not. In 2000 North Andover Town Meeting passed a bylaw amendment calling for a 600-foot setback from any home or school for all wireless devices, antennas and base equipment. The amendment removed sections of the 1998 bylaw that allowed for up to a 50 percent decrease.in the setback. However, due to the wording of the bylaw, different parties are interpreting that setback in different ways. The '"Setbacks" section of the bylaw states that all wireless facilities and their equipment shelters must comply with the setbacks of the zoning district in which the facility would be located. The proposed Trinitarian Church cell tower would be in a residential neighborhood. The law also calls for a minimum setback of 600 feet from any property line that is zoned for (or contains) either residential use or educational use, for all wireless devices, antenna and their mounting structures, "whether attached to a new or existing structure." The Trinitarian Church is located much closer to residential property lines than 600 feet. From that portion of the bylaw, it would not be legal for the.church to install a wireless facility, given its place in a residentially zoned area within 600 feet of property lines. However, it is the following section of the law that is creating a gray area in the interpretation of the bylaw setback requirements. It states, "In the event that a preexistent structure is proposed as a mount for a wireless service facility, the setback provisions of the zoning district 5 shall apply." Tymon and Brown say this sentence indicates it is legal for the Trinitarian Church to install a wireless facility, because they are interpreting the church to be a "preexisting" structure, and therefore only required to meet the residential setback of 50 feet rather than the wireless setback of 600. This is where the gray area comes in - with the use of the terms "existing" structure in the first part of the bylaw, and "preexistent" structure in the second. Reading the first portion, it seems to state that no wireless facilities may be installed — on either a new or existing structure — within 600 feet of a residential or educational zone. The Trinitarian Congregational Church is in a residential zoned area. However, the second section states that if a preexistent structure is proposed as a mount for the wireless facility, the setback of the zoning district in which the structure already resides shall apply. Those on the other side of the argument say this second part implies that because the church is already there — or is "preexistent" — only the residential zoning setbacks of 50 feet apply, not the required 600- feet setback for a wireless facility. Tymon said this latter interpretation is correct. - "The setback really. is meant to be a safety issue, in terms of if the equipment were to fall down and injure someone or damage any structure, you want to have it setback from any existing structures., If it's an existing structure, then the building's already there. "So if it's not in a preexisting building then the 600 feet would apply," said Tymon. But Fitzgibbons, in a letter dated Jan. 15, 2008, interprets the bylaw differently. He was hired by North Andover resident Karen Carroll to interpret the bylaw after Brown granted a building permit for another wireless facility installation at the First-Calvary Baptist Church at 586 Mass. Ave. in 2006. Fitzgibbons' interpretation of the word "preexistent" is that a wireless facility already exists at that site, not that simply a building already exists there. He argued that the building inspector determined the First-Calvary Baptist Church to be a preexistent structure, but said that it was not in fact a preexistent structure because it did not already have another wireless facility in its spire at the time of application for the most recent wireless facility. 6 He said instead that the church is considered to an "existent" structure — as it did exist prior to the wireless application — and therefore the 600-foot setback for all wireless facilities to be installed in existent structures would apply. The current application submitted by Metro PCS to install a wireless facility in the steeple of the Trinitarian Congregational Church is now being considered by the Planning Board. The board is scheduled to meet and make a judgment on the application at their meeting Jan. 6. http://www.wickedlocaI.com/northandover/archive/xl621260028/Som e-anxious-over-church-s-cell-tower-decision Some anxious over church's cell tower decision By M. Renee Buckley/rbuckley@cnc.com Thu Jan 22, 2009, 03:30 AM EST NORTH ANDOVER -The town's Planning Board is set to hold a public hearing Tuesday on the application by Metro PCS'to install cell phone tower antennas in the steeple of the Trinitarian Congregational Church at 72 Elm St., and neighbors against the tower are growing increasingly anxious. The decision is ultimately in the hands of the church — when and if the Planning Board approves the application — but neighbors who are against the tower are concerned their fears and wishes aren't being addressed by the church. A group of neighbors has asked to speak directly to the congregation following a Sunday service but has not been granted that opportunity. Asked why the church won't accommodate the. neighbors' requests to speak with the congregation, Interim Pastor Vicki Keene said neighbors have already had their chance to voice their concerns in an open meeting. "The church council sets up a process of conversation and they determined there would be an open meeting, which would be open to anybody to come and speak to. the church and share their concerns," Keene said. This meeting was held at the church on Dec. 8. "We sent out as a church over 200 letters to neighbors inviting them to this meeting and indicating that this would be their opportunity to come and speak to the church," said Keene. Keene said the church council had been there along with many members of the church, but neighbors have complained they were never introduced or identified to those at the meeting. 7 Some neighbors who attended the meeting have said they felt it was not intended as a forum in which they should express their concerns, but rather was set up as an informational session in which they were to only ask questions. "We attended the church's `Informational Meeting' and, being respectful of their wishes, we only asked questions and did not express our concerns for we believed that they would give us another opportunity to meet with the trustees, church council and/or members and at that time we would express our concerns," said Erien Gordon of 25 Garden St. Lauretta Wentworth of 15 Pleasant St. criticized the quality of the meeting. ""The-meeting at the church on the 8th of December had only one expert, representing the cell company, and only one point of view regarding this controversy was presented. Since the dangers are not known and won't be known for years to come, the neighbors and the members of the church and all residents should be provided with both points of view," she said. Mark Depolito of Pleasant Street said the meeting format was not fair to neighbors. "Expecting neighbors to be able to go toe to toe with professional cell tower employees who have been trained to debate neighbors — and win — is not what I consider a fair forum," he said. However, Depolito said he'd also had an opportunity to sit down with Keene previously and described their discussion as "open and informative." "I honestly believe she passed my thoughts on to other church leaders. However, if the only people that hear my concerns are the same church leaders that are driving the process of getting cell towers approved and installed ... then is anyone really listening?" he asked. Neighbor Thea Fournier of Main Street said she and other neighbors would like to talk with the church parishioners to express their concerns and feelings. "Although the church has been collecting information' in a binder for church members to review, there is no substitute for honest dialogue. The neighbors have repeatedly asked for a brief meeting with parishioners after their church service and a meeting with church council. Both meetings have been vehemently denied," said Fournier. In lieu of letting neighbors gather to speak directly to the congregation, the church has been collecting all of their letters and 8 noting their concerns for inclusion in a binder accessible to any church members who are interested in looking. The book is available for viewing in one of the church's reading rooms, Depolito said. Neighbor Dagmar Schnellinger of Elm Street thinks a meeting would be a more effective method of allowing their concerns to be heard by the congregation. "I think a one-on-one would be better than a book with letters from the neighborhood .that anybody can look at but nobody does. "I just wish this whole thing would go away. They could find a place for the cell tower where it wouldn't impact anybody's health and the church would get their money somewhere else," said Schnellinger. Depolito added that while he suspects the church leaders are tired of hearing from the neighbors about their concerns, it will be the neighbors who bear the brunt of the potential health risks down the road. "No one related to the church will be affected, they are there a few hours or so a week. The neighbors are there 24-7 and have no input into the decision other than lawn signs and pamphlets, which most members of the congregation probably don't even read," he said. He said the reason that neighbors want a chance to meet with the congregation is that they want churchgoers to see the "human side of this," which he said can't be related through e-mails and letters. "This thing boils down to, what is more important? Easy money or being a good neighbor?" he said. Why consider a cell tower? "I feel we have listened. I feel we've been generous with our time and given them the opportunity to share their reasoning and their fears with us," said Keene. "When you're in a gray area of unknown people just say, 'Don't do it.' That's a reasonable position to take and we understand that," said Keene. "There are no studies that conclusively say one way or another that this is safe or unsafe. Everyone agrees with that, I think." Why, then, if it's not certain whether it's safe, is the church still considering it? Keene said there are a number of reasons. "First, these companies came to us expressing the need to improve their service, so there was a community need to improve reception for cell phones. We did not go after the cell companies," she said. "We're also continuing to consider this because we're waiting for the town's opinion. We rely on the town government to look out for the 9 well being of our citizens. That's why we have government and these functions and boards in place," Keene said. Asked if she or the church is concerned about their future relationship with their neighbors, Keene said, "Of course it is." She added, "We need to impress upon our rieighbors, we are a church. We are here to do God's work in this neighborhood and serve the needs of people both near and far. We are a nonprofit organization. It's not about the money, it's about our service to God and to people not only in this town but surrounding towns and the world. That's what Jesus Christ calls us to do." Elm Street resident Lizetta Fennessy said, "Anyone can say they value the neighbors, but where is the action that supports it? In 2000, the church's actions indicated that it values the neighbors; they voted against the cell tower, in part due to consideration of the neighborhood objections." Fennessy said the neighbors want a chance to inform the congregation of the long-term health risks involved with living under a cell tower, and to request that they vote not to install the tower. When and where The public hearing on the Metro PCS cell tower permit application is scheduled for Tuesday, Jan. 27, 7 p.m., at Town Hall, second-floor meeting room. http://www.wickedlocal.com/northandover/archive/x617067188/ Cell tower decision next week By M. Renee Buckley/rbuckley@cnc.com Wed Feb 25, 2009, 05:49 PM EST NORTH ANDOVER -Those following the case of the proposed cell antenna installation in the Trinitarian Congregational Church steeple may be happy — or relieved, or anxious — to hear the Planning Board is set to vote on the special application at next Tuesday's meeting. After hours of testimony from those on both sides of the issue, Planning Board Chairman John Simons said they'd leave the public hearing open until next Tuesday's meeting, at which time the board will take a vote barring any unexpected developments. MetroPCS, which is the applicant along with the Trinitarian Congregational Church, must hand in one more required piece of information in order for the application to be complete — a list of all the wireless facility sites within a one-mile radius of the church, located at 72 Elm St. 10 Though the applicant requested a waiver on this requirement, the board would not approve the request. The board's decision on the application must be based on a list of specific criteria, Simons said at this week's hearing on the application. Those criteria include ensuring the application is complete, that it complies with the criteria laid out in the town's wireless bylaw, that the company has proven a significant coverage gap necessitating the installation, that there are no other suitable locations, that the installation is safe, and that the application meets FCC standards. In regard to the safety part of the criteria, the Telecommunications Act of 1996 prevents health issues from being used to deny a special permit to a communications company. Only discussion of safety in terms of the installation and whether the building materials could fall and cause harm, for instance, may be used. Asked if the applicant has met all of these criteria, Simons said, "We went through the items and I think there was a general consensus. I can't speak for everyone on the board as to how they will vote." Since the application was presented to the Planning Board, some opponents have said the town's wireless bylaw prohibits the installation of any such facility within 600 feet of a residential neighborhood or school, both of which exist within 600 feet of the Trinitarian site — the church is home to the Century Preschool. Opponents have said the Planning Board should turn the application over to the Zoning Board of Appeals due to the possible violation of the setback requirement. Simons said the Planning Board has sought town counsel's advice on the matter, who has said the decision on whether the application meets the bylaw criteria is up to the town's zoning enforcement off=icer, who is building commissioner Gerald Brown. Brown has stood by his decision that the application meets the bylaw criteria, explaining that the 600-foot setback only applies to new structures, not an already existing structure such as the Trinitarian Congregational Church. But at Tuesday night's hearing, church neighbor Liz Fennessy of Elm Street presented a list of past decisions on similar applications for cell tower installations in town since 2000. Fennessy read through the list of decisions, outlining an inconsistency in decision-making in regard to the law. In 2000, 2001 and 2002, letters from then building commissioner D. Robert Nicetta indicated applications to install a wireless facility in an existing facility within 600 11 feet of a residential- or educational-zoned area would require a variance from the ZBA. Then, in 2006 and 2008, the opposite decision was rendered by new building commissioner Gerald Brown for two other applications for cell antenna installations in church steeples. Fennessy said these documents, which she provided to the board, showed three cases in which the bylaw was applied as intended, and two cases in which it was not. "I request you refer this to the ZBA where it belongs," she said. Planning Board member Richard Rowen addressed Fennessy's point later in the meeting, and explained that despite the differing interpretations of the bylaw by building commissioners in the past, the actions of the Planning Board have been consistent — they've followed the interpretation of the building commissioner — and they will continue to do so. Asked if neighbors opposed to the installation will take any further action should the application for the wireless antennas be approved next week, Fennessy said, "There are many citizens in North Andover who would like to see our wireless bylaw applied in this case, and the neighborhood will be forced to appeal an affirmative vote by the Planning Board." Thea Fournier of Main Street, another neighbor of the church opposed to the installation, said, "The answer is yes, we shall appeal and defend our position. The wireless bylaw is clear. It is being read incorrectly." The next Planning Board meeting is scheduled for Tuesday, March 3, 7 p.m., at Town Hall in the second floor meeting room. 12 Published: March 20, 2009 12:06 am LAWRENCE EAGLE TRIBUNE Holy war in North Andover Neighbors ask for God's help in cell tower feud with church http://www.eagletribune.com/archivesearch/local_story_079003852.h tml By J.J. Huggins jhuggins@eagletribune.com NORTH ANDOVER — The sign in front of Chris Bowe's house at 33 Elm St. reads, "LORD PLEASE HELP US." Down the road, another sign says, "My bedroom is right up there. PLEASE don't put a tower across from where I sleep!! Madison Age 8." Residents are waging a visible fight against Trinitarian Congregational Church, which plans to install a cell phone antenna in its steeple at 72 Elm St. "What we want is the Lord to hear us and we want the church to hear us," said Bowe, 54. "We don't know what long-term radiation is going to do." The health risks associated with cell phone towers are the subject of a worldwide debate. Experts have argued for both sides — some say the towers can cause health problems like cancer, some say they don't. The town's Planning Board unanimously approved a special. permit for the antenna. The only other step in the process is the church getting approval for a building permit, said Town Planner Judy Tymon. The, congregation's Church Council unanimously approved a motion authorizing its board of trustees to continue negotiating with wireless companies MetroPCS and T-Mobile to enter into lease contracts. The church said the antenna would besafe and it needs the money it would receive by hosting an antenna. David Deems, the church's moderator, said in a letter to members and neighbors that their actions are "driven by our faith." "We have remained open to all perspectives — favorable and opposed — proactively researched and thoroughly reviewed all information and used it, in addition to dialogue and prayer, to make our decision," he wrote. The bottom line, according to residents interviewed, is that neighbors 13 don't know what the long-term effects of living so close to a cell antenna will be. "I don't want to find out years down the road, 'Guess what guys, you know those cell towers? There's a problem.' We really don't want to be part of their experiment," said Aaron Pertus, 39, of 62 Elm St. Pertus lives next'to the church. He has a. white banner on his front lawn, facing the church entrance, saying, "PLEASE DON'T PUT A CELL TOWER 40 FEET FROM OUR BABY'S CRIB." Pertus works as an electronics technician for Verizon, but he works in its land line division, he said. His daughter turns 2 next month. The family is "seriously considering" moving, Pertus said. "I think that some of those signs are now becoming a little extreme and it's just unfortunate that that's the position that some of the neighbors would take," Deems said during an interview. "The tone is antagonistic, and it kind of tries to tug at people's emotions in a way that's just not helpful to the overall process. And, in fact, it doesn't really support facts of the issue." The current radio frequency emissions around the church have been measured at about 1 percent of the maximum exposure allowable by the Federal Communications Commission. The cell antenna would add an estimated additional 0.01 percent of exposure, Deems said in the letter, citing calculations from an expert hired by MetroPCS. A town-hired engineer verified that the company met FCC guidelines, Tycoon said. If the antenna is installed, the church will be able to keep an eye on the amount of emissions produced because it will have'a contractual right to obtain annual reports from the wireless carriers, Deems said. Several neighbors have generic yellow signs saying, "No towers.near our homes. Protect your neighborhood and preserve our wireless district!" in addition to signs with personal messages. Eddie Miller's 8-year-old daughter, Madison, made the sign asking the church not to install an antenna across from where she sleeps. The sign is posted in front of the apartment building the family lives in across from the church, with an arrow pointing toward Madison's bedroom. The family started with the yellow sign, and that piqued Madison's interest, her father said. "She asked me all about it," said Miller, 34. "She's like, 'Daddy, my bedroom, we're directly across the street.' She was like, 'You know what, I want to do my own (sign)."' Deems said "there's literally no exposure to the neighbors in the immediate neighborhood." "That kind of information doesn't seem to be heard, or certainly it's 14 not taken seriously by some of the people that put signs in their yard like that, he said. Money is why the church wants to install the antenna. During the past two years, the church has faced a budget shortfall that is depleting its assets, Deems said. Residents intend to hinder the church's plans. Neighbors are going to court to appeal the Planning Board's decision. Their appeal is due by March 25, said Liz Fennessy, one of those opposing the antenna. Fennessy lives diagonally across from the church and has three children, ages 7, 5 and 2. "Your choice, our kids health," says the sign in her front yard. "It's very stressful having to deal with it," she said. "The church can't prove it's safe, so we have to live with the risk so they can save their dying church." 15 L Letters to the Editor of Marthea Fournier NORTH ANDOVER CITIZEN hftp://www.wickedlocal.com/northandover/archive/x2087805751/ Letter: Trinitarian Church not what it used to be Fri Mar 20, 2009, 01:03 PM EDT NORTH ANDOVER - To the editor: The North Andover Trinitarian Congregational Church has been my religious home for over 45 years. It is where my grandparents married, my parents married and where my family and I attended beginning my childhood. We lived within view of the church's beautiful steeple in the Trinitarian neighborhood, where I still live today. During my adult life, I have been active teaching Sunday School, directing the children's choir, singing in the senior choir, involved in caring for the elderly and in many other ways, large and small, including actively fundraising for the church. My family and I have also been a strong financial supporter over the years. The Trinitarian has been, until recently, a congregation bustling with a beautiful spirit and sense of community. Parishioners all cared about each other and about our neighbors' families and children, too. We all appreciated the friendship of the neighborhood and valued their support of the church through the decades. Over a period of 50 years, three wonderful ministers led the church's fellowship with warmth, thoughtfulness, integrity and openhearted love for our parishioners, neighbors and community. Over 10 years ago, when the wireless corporations first came calling to twice ask the church to agree to house cell antennas, our two former ministers (who preceded the current interim minister) both chose not to allow these corporations to do business in our religious home. The ministers walked the walk after listening to the concerns of parishioners and neighborhood families opposed to cell antennas. These ministers were sensitive to their concerns about property devaluation and possible health and safety impacts. One might recall that Jesus threw the moneychangers out of the temple, as it was "no place" for business mongers. It is apparent that the attitudes and neighborly ways of the church's leadership changed when the last of the three ministers left. Fewer 1 people attended, the congregation dwindled and some heavy-handed political thinking took over. And then last year, MetroPCS came calling on the church, wanting to locate its cell antennas. But this time, despite the same concerns and distress of parishioners and neighborhood families about antennas, the church's new leadership turned its back on the community and recently agreed to lease to MetroPCS and T-Mobile. It is sad to witness a once-vibrant church that cared about its neighbors and all of its membership blinded by telecom money. Although the church leadership was given comprehensive information and the names of non-industry experts, it is clear they did not want untainted information that would not comport with what they needed to believe about cell antennas. Not knowing the real adverse impacts of cell antennas gets you off the hook, doesn't it? The church's leaders have bought the wireless companies' self-serving propaganda and paraded its industry representatives. That was the leadership's choice, but their active and passive control of the kind of information they provided parishioners was unconscionable. There has been no informed consent by the congregation to put antennas at the Trinitarian. Church leaders seem to think that money will fix the problem, but it seems the church is not only in trouble financially, but is spiritually troubled. The financial difficulties are the symptom, not the cause. The problem is the church leadership's uncaring actions. One leader of the church callously remarked to me, " Well, Thea, if you get cancer in the next five years, you can come back and tell me 'I told you so."' This statement says it all in a nutshell. Thea Fournier Main Street North Andover http://www.wickedlocal.com/northandover/archive/x1124687518/Lett er-Church-s-words-and-actions-don-t-agree Letter: Church's words and actions don't agree Fri Feb 13, 2009, 11:41 AM EST NORTH ANDOVER -To the editor: There is a disconnect between what the [Trinitarian] church leadership is saying and what is happening. According to the moderator, the church "remains completely neutral," but it made the decision to allow 2 MetroPCS to go forward with the town process, which put the bylaw into play before talking with the neighbors. It is also a co-applicant of the Planning Board application. They've already walked through the door. That's taking action, not being neutral. The church has not been neighborly. The neighborhood only learned about the proposed [cell tower] antennas through notification from the town. It is unfortunate that the church did not tell neighbors what they were doing before the town process began. It has also been very disappointing that, after the process had begun, the leaders of the church have been stonewalling the surrounding neighbors by limiting residents' access to a true dialogue with the whole congregation and with all members of the leadership about this very controversial issue. Those meetings were denied by the leadership. Up to this point, most of the information filtered down to the church members has been industry driven. The neighbors and residents are exercising their right to free speech by using, for example, signs and informative and educational letters to communicate their concerns. These communications are not harassment. And expressing different ideas or dissent is not harassment. The neighbors are worried, with good reason, that their properties will be devalued and their health put at risk, as well as the health of those people in the church and children attending the preschool. The church has not been neutral or open. If they have signed a lease, it would be forthright for the leadership to have the decency to tell the neighbors and if they have not, tell the neighbors what the timing will be to do so. If the neighbors are the "opposition," what does that make the church? Doesn't it make the church the proponents? Thea Hosking Fournier Main Street North Andover http://www.wickedlocal.com/northandover/archive/x1435865585/ Letter: Does the church value its neighborhood? Thu Dec 18, 2008, 01:10 PM EST To the editor: Looking down the street from my home, I can see the beautiful Trinitarian Church's majestic steeple reaching for the heavens. For me, Y 3 since I was a child, it's been a beacon of hope and peace. I recall going up in that steeple as a teenager and ringing the bells. Unfortunately, the church's trustees and council have been inspired by less holy thoughts when pondering this religious edifice. Instead, they are being tempted by large sums of money in exchange for allowing the steeple to house Omnipoint's and Metro PCS's wireless technology. Good for church's finances. Good for Metro PCS. Good for Omnipoint. A bad gamble for the neighbors' health and wellness, property values and the loss of their historic bell. Churches used to exist for its members and neighboring community. That is no longer the case. And like so many other churches, this church is considering selling out to industry, with little regard for its relationship with its neighbors and their concerns. The practice of hiding cell antennas in churches is becoming increasingly common to disguise the aesthetically displeasing proliferation of towers dotting the countryside. Aesthetics and property devaluation are just by-products of the main concern. At its core, radio frequency radiation is a medical issue. While industry works hard to present scientific evidence that it is safe, substantial reports raise red flags regarding adverse biological effects, i.e., increases of cancer, cell damage, abnormal behavior and DNA damage (www.bioinitiative.org). RF radiation is an invisible threat. The warning of serious concerns from scientists and medical doctors worldwide who are not affiliated nor paid by the wireless industry is readily available for everyone to access. I ask the church leaders not to ignore the warnings and to err on the side of caution when considering the health and safety of its neighbors. With the uncertainty of safety issues and grave concerns about the adverse biological effects of RF radiation being echoed throughout the world, why would anyone risk placing another person in harm's way? Obviously, just for greed. Thea Fournier Main Street North Andover 4 M �C CX MEMORANDUM I To: North Andover Wireless Bylaw Review Committee From: Thomas J. Urbelis, Town Counsel CC U Date: October 29, 2008 In accordance with your meeting on. October 23, the following are some comments on your'draft revisions to the zoning bylaw which I hope you will fund helpful: 1. You have deleted from the current bylaw the provisions that the Planning Board will be the Special Permit Granting Authority and the draft does not designate who will be the Special Permit Granting Authority. As was discussed at your October 23 meeting, you may designate the Zoning Board of Appeals as the Special Permit Granting Authority. If the Planning Board is the Special Permit Granting Authority and it determines that in order to comply with the provisions of the Telecommunication Act of 1996 a variance is needed for the setback requirements, then the applicant would need to go to the Zoning Board for such a variance. Under Massachusetts law a variance must be based upon the soil conditions, topography or shape of the lot and in prior situations which have come before the Zoning Board for a variance and in which they determined that the variance was required to comply with the Telecommunications Act of 1996, they heard complaints from residents that they could not grant such a variance unless it related to the soil conditions, topography or shape of the lot. If the Zoning Board of Appeals were to be the Special Permit Granting Authority, there would only be one Board conducting hearings, rather than two Boards, although the bylaw could still have the Planning Board do a site plan review. Since it is the Planning Board and Zoning Board of Appeals who are directly affected by this. I recommend that-you reach out to the Planning Board and Zoning Board of Appeals for their input as to which Board should be the Special Permit Granting Authority for the wireless communications part of the bylaw. 2. Definitions— E. Adequate Coverage: This new definition provides specific engineering criteria such as "-95 dbm" and I am not aware of any engineering study which you have done to justify this criteria. The Town should justify such technical requirements. F. Adequate Capacity: Again, this specific new criteria should be based upon, and defensible, as a result of some engineering backup which you have received from an engineer. Moreover, if this definition is intended to define what is a "significant gap" for purposes of the Telecommunications Act of 1996 you may need not only engineering studies,but also some confirmation in an appropriate court decision that this particular definition is defensible under the Telecommunications Act of 1996. T. Monitoring Protocol: This new provision refers to a testing protocol "adopted by the Board"but no such protocol has been defined in the bylaw. AA. Repeater: Again, the question arises as to where the technical criteria which is contained therein has its origin and justification. The definitions Omnipoint Directional Antenna, Security Barrier, Separation, Utility and Wireless Service Facility have been deleted from the current bylaw and I suggest you have a discussion and rational justification for such deletions. 2 3. District Regulations— A. The phrase "Wireless Service Facility" is -used, but it is not something which is contained in the definitions. There is such a definition in the current bylaw, but it was deleted from your draft. B. Again, "Wireless Service Facility is used," but there is no definition. The current bylaw has a 600 foot setback requirement. Your modification provides for a 800 foot setback from a lot containing a dwelling, school, daycare center, nursing home or an assisted or independent living facility. 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 facts of a particular application and whether the decision, in applying the bylaw results in an effective prohibition of wireless services (an "as applied challenge"). However, in some situations, even without considering the facts of a particular decision being challenged, a Court will entertain a claim that a local bylaw, on-its face, is so egregious that the bylaw violates the Telecommunication Act of 1996. In the County of San Diego case from the 9t' Circuit Court of Appeals which Ms.'Warren_provided to you on October 2,the Court stated: "That is not to say, of course, that a plaintiff could never succeed in a facial challenge. If an ordinance required, for instance,that all facilities be underground and the plaintiff introduced evidence that, to operate, wireless facilities must be.above ground, the ordinance would effectively prohibit it from providing services. Or, if an ordinance mandated that no wireless facilities be located within one mile of a road, a plaintiff could show that. because of the number and location of roads. the rule constituted an effective prohibition. We have held previously that rules affecting a "significant gap" in service coverage could amount to an effective 3 prohibition, MetroPCS,400 F.3d at 731-35, and we have no reason to question that holding today." (emphasis supplied) Attached hereto is a copy of an email from former Town Planner Lincoln Daley along with the wireless bylaw map which is referenced in his email showing the 800 foot setback for residential properties. Lincoln left his employment with the Town soon after he did this plan. As you can see, under Lincoln's analysis, as a result of the setbacks, there is very little land in North Andover which would allow constructing a Wireless Service Facility. This kind of plan is something which a carrier would have in a facial or as applied challenge to a.bylaw in which the carrier would claim that the bylaw has "the effect of prohibiting the provision of personal wireless services in violation of the Federal Law. Please note that Lincoln's analysis was related just to the residential property setbacks and not to the other setback prohibitions in the draft bylaw. The.draft of the proposed bylaw contains a prohibition of a tower at any location that is: • within 800 feet of a lot containing a dwelling, school, day-care center, nursing home, assisted or independent living facility or • within 800 feet to any structure in an Historic District, or listed, or eligible to be listed, on the state or federal Register of Historic Places or • on a Massachusetts or federally regulated bordering,vegetated wetlands or • on a Massachusetts certified vernal pool or in the Habitat of any Massachusetts rare or endangered wildlife or rare plant species or • within 500 feet of a Scenic Road(4.d.i) or • that is within open areas that are visible from public roads, recreational areas or residential development(4.d.ii). . 4 I'recommend that the Committee should determine if, and where, any land in North Andover, is available for a wireless facility under those provisions as well as under the current bylaw provisions so that, in carrying out its review of the wireless bylaw, the Committee will know if, on the face of the existing or proposed bylaw, there is, or will be, an effective prohibition of wireless services in violation of the Telecommunications Act of 1996. Enclosed please find my letter dated November 21, 2007 with regard to such a determination. Enclosed is a Setback Comparison for 36 municipalities for your comparison as to the setback requirements in your draft and the requirements of some other communities. 4. The current bylaw has a provision which states: "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 preexisting non-conforming structures, wireless service facilities and their equipment shelters shall not increase any non- conformity." Your draft deletes this section. Often such wireless fadilities are placed inside buildings such as church steeples. In such situations there is no "fall down" zone because the monopole is totally enclosed and therefore it would not present a safety hazard outside the building. However, if a carrier wants to place a monopole in an enclosed building or on top of an existing building, water tower or similar structure it would have to comply with the 800 foot setback provision. Since the Supreme Judicial Court has said"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" what is the justification for deleting the current bylaw provision and imposing an 800 foot setback? 5. The current bylaw has a provision that states: "A wireless service facility may locate as of right on any existing guyed tower, lattice tower, monopole or electric utility transmission tower for 5 which a special permit issued under the Section 8.9 is in effect; provided that the new facility shall first obtain site plan review approval from the Planning Board and, provided further that any new facility shall not exceed the terms and conditions of the special permit in effect for the existing facility on which it is to be located." This has been deleted from the draft and instead, there is, in your draft that carriers can co-locate on preexisting facilities "provided that such installation complies with the setbacks in Section 3.b.i." (the 800 foot setback and other requirements). Some current wireless facilities in Town do not satisfy the 800 foot setback requirement. The draft requires that a proposed new antenna, on a previously approved tower or array on a building would have to meet the 800 foot setback requirement. An applicant and Court could appropriately ask what rationale and justification would the Zoning Board of Appeals and Planning Board have in requiring compliance with the 800 foot setback and other requirements in denying such an antenna on a previously approved tower? 6. Section 4.c. Historic Buildings: This whole subparagraph appears to conflict with the prohibitions which you have in Paragraph 3.b.2 which prohibit facilities unless they meet setback requirements. edii: There is reference to Sections 8.3 and 10.3 of the bylaw, but there are no such sections in your draft. e.iv &v: These contain specific noise limits of 50.b.d. for which there appears to be no engineering backup. 7. In 5.8.3 there is reference to "SPGA Rules and Regulations" Which Rules and Regulations are these? Do they exist? 8. Site filing requirements in ii.9 require contours for adjacent properties within 500 feet. Is that possible for an applicant to do without going onto those adjacent properties and, if 6 'not, what happens if those contours are not provided? Is the application to be denied on that basis? 9. In v.8 there is a requirement for a printout of foot candle levels at grade, but in Section 4.b.i there is a limitation of 0.0 foot candles when measured at grade so this appears to be a conflict. 10. viii. RFR Requirements— These are new additions from what is in the current bylaw and contain very specific engineering criteria and, once again, there does not appear to be any engineering study which has been done or backup provided with regard to justifying these criteria. 11. In 5.v.i there is.reference to a "gap" and a "significant gap" which appear to conflict with the new sections defining"adequate coverage" and"adequate capacity." 12. Monitoring and Maintenance— (a) references "applicable wireless communication facilities regulations." Who decides what those are? Are these in existence? What regulations are"applicable" beyond FCC regulations? (b) through (g) contain specific criteria for post installation actions which may be in conflict with federal requirements. Attached hereto is my letter dated November 19, 2007 which recommends appropriate engineering review of whether such requirements are in conflict with federal requirements. 13. Fines— .Section 7(e) of your draft refers to fines for failure to provide information "in this subsection 8.9(8)". However, the referenced subsection of the draft does not have information requirements. 7 As you may recall, last year there were meetings of the Planning Board and Board of Selectmen at which advocates of fines demanded that fines be imposed upon carriers. Advocates of fines against a carrier were requested by the Town Manager to provide any authority, statute or caselaw which would authorize the imposition of fines against a carrier who challenged such fines under the Telecommunications Act of 1996. No such authority, statute or case was provided to the Town Manager. By contrast, with regard to a case involving the Federal Telecommunications Act, the Federal Court in AT&T Communications of Southwest Inc. vs. City of Austin, 975 F.Supp. 928, 239 (W.D. Tex. 1977) stated: "The threat of criminal sanctions and fines for the failure of an entity to obtain municipal consent can indubitably only be described as a prohibition." See also Citv of Auburn v. Quest Corp., 247 F.3d 966 .(9' Cir. 2001) (citing the language in the City of Austin'case). Those cases raise a serious question as to whether such fines in the wireless bylaw are enforceable in light of the Federal Act. Enclosed for your convenience is a listing of certain municipalities and whether they have fines against wireless carriers in their wireless bylaw. I hope the foregoing has been helpful to you. Please let me know if you have any questions or if there is anything else that you need. 8 ATTAC HMENT 1 From: Daley, Lincoln (Idaley@townofnorthandover.coml Sent: Friday, March 14, 2008 9:29 AM To: Thomas J. Urbelis Subject: FW: 800 foot buffer Attachments: 800 foot buffer.pdf Tom: Per your request, please find the Wireless Bylaw map showing the 800 foot buffer from residential properties.Attached please find a copy of the Wireless Service Facility 800 foot buffer map. The map was developed by identifying all residentially an8 foot bufferclassified proerties in North Andover zone for the each property line. g TheseTown Ares de tial p opertiesssessor and MA d use codes and then establishing a were then crossreferenced with Town GIS information for residential properties. The red circles indicate the d the 800 foot buffer not identified during the initial analysis. location of additional residential dwelling units an Lincoln ATTACHMENT 2 ill 11 i 1; i��IL{ iu• '' Y �!%Inum• . 0 ����<<" X1'1114 MOR tea,, l P�- �`►,' L� �i s � a L. ;'—MI Mll i j. �J�` a/ ��s d9 r'L�! •v!' i�r:,*,rrTf�'! > n' i i ��..g�;-(/`� 1 Ri �fMW (�ir%� Mni .�f • r ,�(v, ref�/��/�}S�•�;�//��l�•l`�I'���� ,.,i'��Il����.�.�!'.�QT :nR(ti/� '����y0.��i�i� ;�r ,\�� .-•.,,�,..tiy�aQie,/'.;, a "r yYr i /,,:,7='';meq` ���Y'i y, 4'► ''e•`.'"= M a.>:� ��•�� e,•C' .I /i�lI�ti�.e►r=J ��',: w'�'•`.e� .,y-�:`..{�,y,�t►Z��;\A'�•I, �-,:E �l�_•� �►Ii�,�`��. ' �. �t� fir *% 6(' \�•!��'' T��'r ML ::.u�i=''t/ "=YJii""'aul��If'��ii.it �`�jf�_ i�� 1'►® � ' �Ti.9� ,. ; � .. i%i,r .rr, li _ E �,.. %� moi,/. ���.1cit'1► ��.,•�.4\\ i`�t��i�,%'Wa�'�``a�'`a��,�•�.//r.�A� CI �i���`+_�lU���`.�`�''-�y`�'+�'� '5111•"��r .,{' =lar � rrli r'>• r r � •. J ,v�1 �1" v 1�,� 1�•r•T��� _1r-:N�Sy?illD\<;Q-�3cO�a��nR�►■ r_ry"{\��G/(//�l�i::i�Cr. .La�7s�i _j +7l�4� t'�1J�:.�� ►�� 1��ra�ff�i r-�1y .c��,i�-s�'d►""LTol TA���\�� ���L •.a ra �.._:I e`_., r a! r:..:r i �� � � i.1�-� /i';-" �•-.:J;moi �•A'I+I+ ��'(� a.�fl`' \.. ► w•�� Illi: �. s'.� ���1r,c��.T �� �•L�: / <:: r. rTIQ��ltrliil \li'�!��!jL:,ti �37 ip;�\� ii!��. \.!a��=ll:' fir— �y'w 1�t�q:�,r. � ,p�.�: �l..� .,jA ,•�•, P . bra, ME A-111se. ,�e.; . �,•— -�?e=-;��p� ATTACHMENT 3 UR.BELIS& FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON, 1uLA.SSACHUSETTS 02110-1 727' THOMAS J.URBELIS Telephone 617-338-2200 Andover e-mail tiu@uf-law.com Telecopier 6i7-338-0122 Telephone 97E-475-4552 November 21, 2007 Mr. Curt B ellavance Town of North Andover 1600 Osgood Street N. Andover, MA 01845 RE: WIRELESS COMMUNICATION TASK FORCE Dear Curt: The Zoning Bylaw states: "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 reeither zoned for, or contain, residential and or educational uses of any types." With regard to that provision, I recommend that the Task Force consider the following: 1. The 600 foot setback is 4 times the fall down zone of a 150 foot tower and the carriers have indicated a challenge under the Telecommunications Act of 1996 would be forthcoming if a tower were denied due to the 600 foot provision. Keep in mind that health concerns about radiofrequency transmissions are not a legitimate ground for the 600 foot setback provision. The carriers have asserted that there are very'few properties in Town which could satisfy this 600 foot requirement. I recommend that an analysis be done as to what properties in Town would be able to satisfy the 600 foot setback provision and where on such properties the "wireless services, antenna and their maintaining structures" would need to be located in order to comply with the 600 foot setback requirement. 2. Whether there should be a modification such that it is explicit that a setback requirement applies only to the tower itself and not to additional,antennas on the tower or to equipment on the ground or to subsequent carriers who may want to co-locate on an existing tower. I Whether wireless facilities within enclosed structures should be exempt from setbacks. / URBELIS &FIELDSTEEL,LLP November 21, 2007 Page 2 Very truly yours, Thomas J. rbelis TJU:kmp cc: Board of Selectmen Mark Rees Gerald Brown Lincoln Daley I ATTACHMENT 4 SETBACK COMPARISON ''77 Sid- � �''rl • r. r'>i;.� Yd. 'Pa � t gin} �F� f ��r�.1S.�. � ;TF.�'1 ,u.--'yr. Y ..;.9,...0 .....;.: .". '• : .-'.r: .. a-. .'.r._.:.rr. !� i�- xs .+.3%t.-?..F' i.J � _ 1 '*!"w'.3r• 1. l:Nn.y;:.• a�. -�- 1 ,i, Acton 3.10.5.2: No special permit required in certain districts if tower does not exceed applicable height Iimitations and is set back from all lot lines at least the distance equal to the height of the tower but not less than applicable minimum yard requirement. 3.10.6.4: Residential districts —height of facility from lot line, but not less than applicable minimum yard requirement. 3.10.6.5: >:500 feet from Local Historic District boundary. 3.10.6.6: Separated from any existing residential building by a distance at least twice the height of the facility unless the facility and building are on the same lot. Agawam 180.97(K): Minimum of 260 feet from tower to property line or another occupied building on the property or 1 1/2 times tower height, whichever is greater; 375 rather than 260 feet to all publicly owned parks and playgrounds Amesbury 1(3): 100 feet from property line; 200 feet from nearest residential building Amherst 1. Residential Districts—Setback from residential lot at least equal two times height of tower. Non-residential Districts—Lesser setback possible but requires findings by SPGR. SPGA may also allow lesser setbacks for use of an existing structure. Andover 6.1.2: In residential districts, three times the height Ashland 28246(D): 100 feet from adjacent way if residential use One mile from another tower Height of tower plus 10 feet from property line Barnstable §240-107.E: Structural components including ground wire anchors and equipment shelters shall comply with all required setbacks of the zoning district. Belchertown 145-62: Tower's height from property line .v:\wp51\work\Nju\netbeck comperifon.doc Billerica 1V. Set back from property lines must be at least vertical height plus 10' and 250' from residential dwellings-and> 800' from public schools. Boxborough 7403: Height of the tower; also 500 feet from any school building; 1500 feet from any other tower Boxford §196-22-C(6): Facility must beset back from property line at least the distance equal to vertical height of tower. Burlington 4.1.6.4: Distance of fall zone; also 200 feet from residential dwelling; 800 feet from public school building Chelmsford §195-66: By-right in specified zoning districts, subject to certain requirements, incl. 500' from a residential structure. §195-67: By special permit—subject to certain requirements including setback of at least 50' or 1 �/2 x the length of the monopole. Chicopee 275-27.1: height of tower plus 10 feet; Twice the tower height from residentially zoned abutting parcel Concord 7.8.4.2—(a) set back from lot line equal to tower height unless tower designed to break away at a certain point above the ground; 0)no new towers within 1000' of child.care facility or school, 100' from single family dwelling, 100' from any structure in a Historic District or listed or eligible to be listed by Reg. of Historic Places. Dover §185-46.E(2)(a): 2.5 x height from property line; 300' from any habitable dwelling or business. §185-46.E(3): SPGA may reduce required setback by up to 50% if it finds that a substantially better design will result. Franklin 180-44(D): Height of tower; 250 feet from existing residential building; one mile from another tower unless applicant shows there is no existing space on one of the existing towers which can be leased Hamilton J(5)(b): Distance equal to the tower; 500 feet from existing structure except those on the same lot. 2 Harvard 125-27: 2 miles from nearest tower unless cannot locate on the existing tower or the proposed placement is critical to the provision of services; Setback is height of tower•, 500 feet from a residence Hingham III=E(7): Height of the towers Holden Chapter 7.1, Section XVII(B)(4): In residential district, 2 times the heiglit; at least 300 feet from the nearest residential structure Hudson 5.9: Lots upon which tower is located must have minimum width and depth equal to twice the height of the tower unless ZBA reduces it with finding it is not necessary for public safety Hull This is an overlay district; Section 39: 2 miles from another tower unless allowed by SPGA; height of tower but 500 feet from residential lot line Lexington §135-89B: Height of tower plus 10'; In nonresidential district SPGA can reduce it. Lincoln 12.6.3: As specified in underlying zoning. Longmeadow 6.13: Equal to height of the tower; 300 feet from nearest residential building and 750 feet from a historic district Lynnfteld 9.4.7: If residential abutter, at least the height of the tower; otherwise in compliance with setback in that zoning district; 500 feet from the nearest residential structure Needham 6.7.5(i): Setback requirements of the district North Andover 8.9 3) c) v): Two times height from property line; 600 feet for all wireless devices, antenrna 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 type. Oak Bluffs 83.3: Subject to requirements of underlying zoning. Rowley 8.7.3.3: Setback provisions of the zoning district or 120% of height of tower; 300 feet from a residence dwelling; 200 feet of a residential lot:line 3 Scituate 540.7A(3)(B): Height of tower plus 5 feet; 100 feet from residential dwelling Sturbridge 12.03: One mile from another facility; 120% height of the tower Wakefield XIV A: In an Industrial District and Limited Industrial District,provided that no component of the facility'is within 600 feet of a residentially zoned district, historical district, historical site, archeologically significant site, schoolground or park, notwithstanding the town's boundary; If entirely concealed from view may be sited in an.Industrial District, Limited Industrial District or Business District,provided that no component of the facility is within 250 feet of a residentially zoned district; historical district, historical site, archeologically significant site, schoolground or park, notwithstanding the town's boundary Wayland 1503.2.7: Except for antennas or Boston Edison Company towers in one part of district, catuiot erect facility nearer to a property line than a disiance equal to vertical height. 1503.2.13: Cannot be within 900' of a lot line of a parcel having a dwelling, school, daycare center, nursing home or assisted living facility. Wellesley Part D.3: For installations requiring an SP, generally must be at least height of pole plus 5 feet. The Wayland bylaw has a provision which refers to litigation brought against the Town and which states: "1559.2.1. Other permits: Except to the extent superseded by or inconsistent with the judgment in the matter AT&T Wireless Services of Massachusetts v. Town of Wayland, et al., United States District court for the District of Massachusetts, Civil Action Docket No. 04-11 80?MLW (the "TCA Case"), the applicants must obtain and comply with all other required municipal, state and federal permits from regulatory authorities having jurisdiction in this matter." In another case involving Wayland,a Federal District Court decision stated: "...the undisputed evidence shows repeated delays and denials that when viewed in the aggregate, demonstrate the Town's hostility toward Nextel." "A panel of the First Circuit has held in 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." "Congress did not intend multiple rounds of decisions and litigation"and"a board will not ordinarily receive a second chance." See Nextel Communications vs.Town of Wayland,231 F.Supp.2d 396 (2002). 4 Westwood 9.4.2: None? The Wireless Communication Overlay District is in the following zoning districts: Administrative—Research—Office; Highway Business; Industrial;Industrial office and 23 parcels which include 8 schools and 8 church parcels West Tisbury Not closer than height of tower plus 20 feet to existing building; 400 feet from abutting residential, school or day care property lines 5 ATTACHMENT 5 _ V KI)CLLJ uc,t LLLV J ✓✓✓ ��•• 155 FEDERAL STREET l BOSTON,hIASSACHL`SETTS 02-110-1727 i i elephone 617-338-22-00 Andover 1AS J.UR$EI-15T=lephone 978-475.4552 i liu c uf•1a--com Teiecopier 617-338-017? November 19; 2007 Mr. Curt Bellavance Town of North Andover 1600 Osgood Street N. Andover, MA 01845 RF-: WIRELESS COMMUNICATION TASK FORCE Dear Curt: Section 8.9(8) of the North Andover Zoning Bylaw requires an annual reporton radiofrequency radiation measurements. The Federal- Communications Commission has promulgated regulations setting forth exposure limits for RF transmissions. The FCC also regulates when compliance reporting is and is not required.- See, for example, 47C.F.R.1.1307(b)(1). In preparing its report to Town Meeting, I recommend that the Task Force consult with gineering.and other technical expertise to determine whether the persons having appropriate en blanket requirement of Section 8.9(8) of the Zoning Bylaw (and the other provisions requiring periodic reporting). should be deleted or modified, as being inconsistent with the Telecommunications Act of 1996, due to the preemption of Federal Regulations on the subject matter of the annual RF compliance reporting. Very truly yours, Thomas J. Ur lis TJU:kmp cc: Board of Selectmen Mark Rees A17 TACHMENT 6 FINES IN WIRELESS BYLAW Acton: None Agawam: None Amesbury: None Andover: None Ashland: None Barnstable: None Boxborough: None Burlington: None Chicopee: None Franklin: None Lynnfield: None Hamilton: None Harvard: None Haverhill: $300/day for riot filing annual RFR Requirements or for not following abandonment/discontinuance procedures North Andover: $300/day for not filing annual RFR measurements or for not following abandonment/discontinuance procedures Hingham: None Holden: None Hudson: None Hull: None Longmeadow: None wtlwpS AwoddtjuVints in witoless bybw.doc Needham: None Rowley: None Scituate: None Sturbridge: None Wakefield: None Wayland: None Westwood: None West Tisbury: $300/per day if owner does not remediate unsafe tower or exceeds FCC standards for emissions 2 N - Page 1 of 1 NQAh Andover Planning Board Ippotito, Mary. From: Tymon, Judy Sent: Wednesday,January 28, 2009 3:16 PM To: Courtney LaVolpicelo(clavolpicelo@nobisengineenng.com);Jennifer Borax-Kusek Cenniferborak@hotmail.com); John L Simons oohnlsimons@gmaii.com); Michael Walsh (attymichaelpwalsh@comcast.net); Richard Rowen(richard_rowen@raytheon.com);Timothy Seibert(timothyseibert@hotmail.com) Cc: Ippolito, Mary; Mark@MarkHutchins.org;Thomas J. Urbelis Subject: Documents from last night Folks, Attached are all of the documents that were submitted by residents at last night's meeting. They include: --January 23 2009 letter from Walter Soule supporting the 600 ft. setback change made in 2000 January 26 2009 letter from the 2000 Wireless Committee supporting the 600 ft. setback change made in 2000 --The first page of the Citizen Petition opposing the 70 Elm St.Wireless Facility installation. The petition contains approximately 162 signatures. r A compilation of health reports(summaries)demonstrating health effects of RF emissions. ---A memo from attorney Collins, stating that the setback provision of the town's bylaw state that a preexistent structure, as used in section 8.9.3.v.2, refers only to preexistent wireless structures. Attomey Collins maintains that all references-with section 8:9 to preexistent structures are NOT references to `buildings', but are references to"water towers, guyed towers, lattice towers, fire towers, monopoles, telephones and electric utility structures that existed and were being used as such before the current Zoning Bylaw became effective". .�Affidavit of Robert Noone, a teal estate appraiser,stating his opinion that wireless facilities could have an affect on property values. Statement from Lauretta Wentworth, a real estate agent and abutter to the 70 Elm St property, stating that in her opinion, the value of her home could be decreased due to the presence of a wireless facility. Also included is a current appraisal of her home at 45 Elm St. The decision of the court of the Southem District-of New York,Verizon Wireless vs. the town of Clarkstown. The court granted the defendants motion for summary judgment. This court found that"a local govemmenf may reject an application for the construction of a wireless facility*in an under-served area without prohibiting wireless services if the service gap can be closed by less intrusive means". If you have any questions, let me know. .Rudy Tymarr, AICP Town Planner Town of North Andover 1600 Osgood St. North Andover, MA 01945 ph: 978-688-9535 fax: 978-688-9542 1/29/2009 THE COMMONWEALTH OF MASSACHUSETTS// DEPARTMENT OF THE TRIAL COURT ESSEX, ss. SUPERIOR COURT C.A. No. 02-1904B ---------------------------------------------------------- THEA FOURNIER, CINDY ALLEN, et Plaintiffs, AFFIDAVIT OF V, ROBERT NOONE ZONING BOARD OF APPEALS OF NORTH ANDOVER, et al., Defendants. .--.------------------------------------------------------' ROBERT NOONE, first being duly sworn, hereby deposes and says as follows: 1. f am areal estate'appraiser with more than 49-years of eXperienee in appraising real property in Massachusetts. A copy of my resume is attached hereto as an exhibit and accurately sets forth my professional credentials. -I have qualified to serve as an expert witness in real estate appraisal more than 200 times in the courts of the Commonwealth of Massachusetts. My office is located in Peabody,Massachusetts. As a result of that and other factors,I am particularly familiar with and experienced in the appraisal of real estate in the northeast region of Massachusetts, an area that includes the Town of North Andover. 2. I have personally viewed the homes of each of the plaintiffs in the above- captioned action,Thea Fournier, Cindy Allen, Chris Allen, Phillip Sampson,Janice Williams,Dagmar Schnellinger, Gerhard SchnelIinger and Valerie Windel (collectively, the"Neighbors'. I have also viewed the smokestack at 1 High Street, North Andover, Massachusetts (the"Premises'), where,I have been informed, the defendant Omnipoint Holdings, Inc. wishes to install a three-panel antenna at a height of approximatety.85 feet above ground. ' 3. In my experience, the presence of a nearby antenna of this type or similar structure tends to Iimit the pool'of potential buyers for residential real estate,just as the presence of high tension wires does. Many buyers view such devices and Mructures with suspicion, fearing that they may cause ill health effects, interfere with television or radio reception, or otherwise prove detdmental to the quality of life in the neighborhood. I do not purport to be qualified to judge the basis of these fears, and from my perspective it is irrelevant whether they have merit or not. What counts is that enotigh polontial buyers shy away fi-om purchasing houses located near such things to affect the value of-such houses negatively. This effect is particularly pronounedd if the tuftana car similar object is Visible from the house in question. 4, One significant factor contributing to the value of the Neighbors' homes is the attractiveness of the surrounding area. There are numerous well-maintained nineteenth century buildings throughout the neighborhood. The Premises-themselves are part of what appears to be a mill-type building from the Industrial Revolution. In my experience, the value of homes in a historic section of a community tends to diminish l when the visual cohesion of the community is broken by the intrusion of a device or structure that is clearly out of place. Once again, antennas and the like can cause such a diminution in value,as they are so obviously out of keeping with the nature of any historically significant area. 2 1 r: 5. In my opinion, the installation of the proposed antenna on the Premises would likely cause a significant diminution of the value of each of.the Neighbors' properties.. Such a diminution would result from (a)the concern, whelher well-founded- or not, of potential buyers with respect to the health and other effects of antennas such as that proposed here and(b) the visual and environniental impnct of it jarring, twenty-first century device such as the proposed antenna atop a smokestack which is a focal point of a historically significant neighborhood. -I expect that.the diminution in value would be . particularly significant with respect tp those properties from which one could see the antenna(which I understand include the homes of all of the Neighbors except Ms. Windel) and those properties that are very near the antenna, includitig the homes of Neighbors Phillip Sampson and Janice R. Williams, Dagmar Sefinellinger and Gerhard Schnellinger and Valerie Windel, which are all, I have been iitforttled, within 350 feet of the smokestack. Signed under the pairs and penalties of perjury this 9th day of April,2003. Robert Noon Certificate of Service The undersigned hereby ce es t he caused a true copy of the foregoing document to be served this day,• ,2003, by first class mail,postage paid, on all counsel of record and on all parties appearingrp o se. Thomas A.-Mullen, P.C. clFonrnier\NaoneAMdavil 3 :J f J Qualifications Of-Robert V_floone l Education: Graduate of Herrimack College, AsAov(:r , Massac)iuse-tts 1952. Bachelor of Science Degree in rusiness Adminis- tration with major field of study in finance. Attended Burdett College, Lynn, Massachusetts, 1946- 1947 with a major field, of study in accounting. Completed real estate and real estate appraisal courses sponsored by v.arious real estate associations. Attended, participated in, lectured at, and conducted seminars, conferences, courses, and meetings sponsored by real estate and appraisal organizations as well as by the New England Law Institute. Instructor in courses in real estate appraisal sponsored by the Massachusetts Department of Vuhlic Works. Experience- Peal Estate Sales: Actively engaged. iu 'real estate 8alvs from 195 ; to the present. Typical sales activity .lucluded residential, commercial and industrial_ properties ab well as land for the same.purposes. Maintained and operated a real' estate sales office for many years in the City of i,ymi. Prenviit office in the City of. Peabody, MassaCIIIIRettfl. j Licensed real estate bro.1cer it t1kQ State-of -Massachusetts. Real Estate Management: { Over twenty years of property aunini vtiii tnt experience includ- ing management of multi-Enna ly,ntrl commercial properties for self, family and numerous cli.cntr.. Construction: Actively engaged in the constr..uctloii c-f over fifty residen- tial dwellings, five.commercial. buildings, a motel, multi- residential apartment building and :i nursing home. Locations include both Massachusetts and Ne-7 stamps}lire communities. Rehabilitation: Remodeled and-supervised the remodeling of over three hundred properties, both residential and commercial. ROBERT V. NOONE, i - 2 ' l Qualifications Of Robert V. Noone: (continued) Land Plamung and Development-: , Acquired, developed and sold land for residential sub-. division as well as participating iii Elie acquisition, development and disposition of tiro ca1110 for builders and developers. Appraisal: Engaged in, appraisal work usual to Ow operation of a real estate office. On a fee basis, this appraiser hv!i dove formnt written ap- praisal work for attorneys, ImIld,:rit, develcipers, redevelop- ers, lending institutions, niunicilml, nt:nt•n Aril federal agencies, and numerous pr.ivnt o (-ti-iii-x. Appraisal Types:, Vacant land, residential.,. tit .nerd l.tulivitrial prop- erties; special purpose 111(l gl,(!Ct.a trnn lrrtttu rties; inti- tutional and railroad prrrpnrl:l�s; cxsrar lct:LeB; gravel pits; stone quarries,. golf catt7:sns; apricl:mmitt bul-AdLrigs; shopping centers; industrial parks- urotetA: Ircji-, Ls; trailer parks; boat yards; marinas; re-ttnn apprr.1finhi- ni.r-nights. appraisals; and airports. Locations: Among 'others, the appraiser has undrirtnlcen. appraisal assign- ments .in the following locations: Lynn, Peabody, Saugus, Damrers, Salern, Middleton, Lynnfield, Nahant, Swampscott, Haverhill, -Lawrence, lietliuen,.rierri.mac, Amesbury, Salisbury, Topefi.eld, Boston, Brookline, Somerville, Taunton, Sharon, Canton, Newton, Ar.liiigton, Belmont, Lexington, Andover,, Lowell, Littleton, Worcentar.,. Auburn, Orford, Stoneham, .Waltham, Burlington, Springfield, Revere, Holyoke, Southborough, Harvard, Plainville, Franklin, Wakefield, Reading, Bingham, Bourne, Plymouth, Shrewsbury, and many conanunities of the States of New Hampshire and Maine. Clients: Among others, the appraiser has dune appraisal work for the fol-- lowing: Town of Saugus, Cities of Peabody, Revere, Lynn, Salem, Boston, Newburyport, Amesbury, Haverhill. The Redevelopment Authorities of Lynn, Peabody, Salem, Haverhill, Lawrence, Natick, Framingham,.... . and Worcester. The Housing Authorities of Amesbury, Lynn, Peabody, Wenliam, and Natick. Agencies of the Commonwealth of Massachusetts including the Department of the Attorney General, the Department of Public Works, the Department of Natural Resources, and the Youth Service Board. Agencies of the Federal Government including the Federal Aviation Administration, the Corps of Engineers, the U.S. Postal Department, and the U,S. District Court-at Boston. Private clients include American (til Company, Sylvania Electric, New England Power Company, Boston Gas Company, and numerous attor= neys and their clients. _ROBERT V. NOONE, _Ri(MAai1eWA Y f- - 3 - {: Qualifications Of Robert V. Noone: '(contituted) Court: The appraiser has qualified and t%..sti.fted as a real estate- expert in the Superior Courts of Essex County both North and ,South, Middlesex County-both North and South,. Suffolk County, Worcester County, Plymnutt, .Ontint.y, and Hampden County, The appraiser has qualifier) and trstifted as an expert in the Massachusetts Appellate Tl x Onard, the United States District Court at Boston, the District: Couct. to Portland, Maine, and the Strafford and Rockingham Superior Courts in New Hampshire. Review The appraiser has served as a Staff: Review.Appraiser for the Appraisal: Commonwealth of Massachusetts, Department of Public. Works, Right of Way Bureau. ' Review Appraisal services have beett undertaken for the. Lynn Redevelopment Authority, Salent Redevelopment Authority,. the .11aveihill Housing Authority, 11averhi.11 Redevelopment Authority; Newburyport Redevelopment Authority, Framingham Redevelopment Authority, Concord, New Hampshire -Redevelopment Authority, the Board of Assessors of the City of Peabody, and the Board of Assessors of the-City of. Lynn. Consultant The appraiser serves in the capacity of Real Estate Consultant Service: to many agencies of government, pi-ivata -individuals, .corpora- tions, and attorneys in matters dialing with acquisition, dis- position, and development of real property. The appraiser is' s contract real estate consultant to the Lynn Redevelopment Authority on all matters dealing with the acqui- sition and disposition of real estate as well as review con- sultant relative to all redeveloper proposals, For Haverhill Rousing Authority, the appraiser is a contract consultant on all matters dealing with 'acquisition and dis.positioit of real estate and serves as their real estate agent in the purchase ; of real property. For the Newburyport Redevelopment Authority, the appraiser has ` served -as review consultant on acquisition of real estate as well as review consultant on redeveloper proposals for all dis- position parcels. Market The appraiser has performed market and feasibility studies for Studies: many governmental agencies, private individuals, and corp-ore- tions. Recent studies include those for the Natick Redevelopment Au- thority, the Haverhill Redevelopment Authority, The Develop ers of the Tannery In Peabody, Massachusetts, the Developers of Kings.Beach Towers in Lynn, Massachusetts, and the Develop- ers of Royal Apartments in Rochester, New. Hampshire. Other studies include those for the Peabody Redevelopment Au- thority, Danvers Industrial Park, Leisure Towers. in Lynn, and numerous Land Damage Studies For agencies of government, ----- ROBERT V. NooNE, c•, 1�z22tc1�r. My name is Lauretta Wentworth and my husband and Town the house at 15 Pleasant Street,which is 276 feet from the church. I come here wearing different hats, of which none are in favor of these proposed installations. First and foremost I am a Mother and Grandmother and am worried about what type of world the future generations will have. We all want our children to be successful,healthy and happy. With so much controversy regarding RF radiation,how can anyone in good conscience take the chance that health may be compromised? Second I am a neighbor of the church and I and many others will be exposed twenty- fourlseven Not a comforting thought. Third I am a Real Estate Broker and contrary to what some people believe,this will have a negative effect on property values. Consumers are very health conscious and if asked we have to divulge anything that would affect the buyer. I recently prepared-a market analysis for a home at 45 Ehn Street. The value came in at$665,000. The presence of cell towers so close could cost the homeowner $20,000 or more. I want to submit to the board a petition of 189 residents that are opposed to the cell tower in the church. This petition was started after we were informed of the church's plans for a cell tower. The names on here are mostly from the neighborhood,but there are some from the preschool in the church and some are parents from St Michael's School. These people feel that a cell tower is inappropriate at this location and both the church and the board-need to.recognize that this issue goes beyond a few houses on Elm Street. We understand that the church is experiencing financial issues,but who isn't? There must be other ways to solve the problem,without risking the health and general well being of the neighbors. I honestly believe that it would benefit all to consider the Steven's Estate as it would generate revenue.for the town and not violate the by-laws. We are asking that-this board make a decision for the good of all. Thank you, January 27,2009 hap://h3xmdspin.com/search/results.asp?prinpage-yes&sortby=I Property Type(s):SF Stat:NEW,ACT,POG,BOM,EXr,RAC,UAG,SLD Timeframe:TODAY-6 MONTHS Towns:North Andover,MA Advanced 01teria:w Number of Bedrooms=4+K Garage Spaces=2 s Number of Total Baths=2+a Style=A,B,C,H,1,1,K a Living Area=3000-3500 20 Listings Single Family Active Listings MLS# Status Address Town Rms Br Sth Style Garage List Dabe DOM List Price 70834398 ACT 75 BRIDLE PATH North Andover,MA 13 6 4/2 Tudor 2 Under 10/13/2008 102 $349,900 70846108 ACT 21 Deluga Way North Andover,MA 9 4 2/1 Colonial 2 Attached 11/1.2/2008 73 $522,900 70$522.16 ACT 2 Blueberry Hill Lane North Andover,MA 11 4 2/1 Colonial 2 Atiadhed JV 1/2008 54 $550,000 70846305 ACT 186 Ambervtlle Road North Andover,MA 9 4 2/1 Colonial 2 Attached 11/13/2008 375 $599,900 70841536 ACT 75 Amberville Road North Andover,MA 9 4 2/1 Colonial 2 Attached 10/31/2008 85 $599,900 70793929 ACT 54 Old Cart Way North Andover,MA 8 4 2/1 CAlanial 2 Under 7/18/2D08 190 $639,900 70832500 ACT 52 Ridge Way North Andover,MA 9 4 2/1 Colonial 2 Attached 10/9/2008 107 $655,000 70773702 ACT 104 Sherwood Drive North Andover,MA 9 4 2/1 Colonial 2 Attached 6/3/2008 235 $659,900 70848131 ACT 35 REDGATE LANE North.Andover,MA 8 4 2/1 Colonial 2 Under- 11/18/2008 67 $669,900 70862789 ACT Lot 2 Redgabe Lane North Andover,MA 10 42/1 blordal 2 Attached .1/12/2009 12 $699,900 70696562 ACT Lot 2 Berry Street North Andover,MA 9 4 .211 Colonial 2 Attached i/12/2008 378 $706,900 Single Family Active Listings:11 Average List:Price:$604,918 Average Market rime:M55 Single Family Sold Listings MLS# Status Address Town Pans Br Bth Style Garage Sale Date DOM Sale Price 70758272 SID 275 Haymeadow Road North Andover,MA 9 4 3/1 Colonial 2 Under 9/2/2008. 86 $620000 70777552 SLD 88 Heath Road Nath Andover,MA 11 4 .3/1 Cape 2 Under 11/26/2008 280 $570,00 70819847 SLD 25 Redgate Larie Nath Andover,MA 9 4 2/1 Colonial 2 Under 12/5/2008 558 $619,900 70695934 SLD 345 Boston St. Nath Andover,MA 9 4 • 2/1 Colonial 2•Urder 10/9/2008 239 $592.000 70790646 SLD 41 Garnet Cirde Nath Andover,MA 10 4 3/1 Colordal.2 Attached 12/15/2008 143 $616,000 70615176 SID 144 Thistle Road North Andover,MA 10 4 2/1 CAlonial 2 Attached 7/24/2008 293 $720,000 70753426 SID 643 S Bradfiorti St North Andover,MA -9 4 2/1 Colordal 2 Under 8/28/2008 .83 $710000 70753931 SLD 36 Beaver Brook Nath Andover,MA 10 4 4/1 Colonial 2 Under 8/1/2008 34 $725,000 70777589 SLD 337 Summer Sheet North Andover,MA 9 4 2/1 Colorbi 2 Attached.7/31/2008 11 $820,000 Single Family Sold Listings:9 Average List Price.$685,144 Average Sate Price:$665,878 'Average Market Tire: '191.89 'rhe hforrnmon h thN hating was gathered from thhi party sources hclidmg the sir and pubs reoords."-s Property kftmadion Network and is a bsvbers dWtn any-and-id representations or wanwdjas as to the amaaq of the hfomhaum Content 02009 K.S Property kdormation Network bc. )f 1 1/24/2009 3:25 PM tumu-s-Assessment anti Sales Report http://h3r,.mispincomltools/pubticrecord/view.asp?uid--26994465.7&i... d � , Assessment and Sales Report Location&Ownership Information Address: 45 Elm St,North Andover,MA 01845-2621 Map Ref.: M:00042 B:00022 L.-OM Zoning: R4 bwner 1: Christopher Allen Owner 2: Cyntiva L Allen Owner Address: 45 Elm St,North Andover,MA 01845-2621 Property Information Use: 1-Family Residence Style: Conventional Levels: 3 Lot Size: 0.73 Acres(31799 sgft.) Year Built: 1900 Total Area: 0 sgft. •Total Roams: 10 Uving Area: 3282 sgft. Bedrooms: 5 First Floor-Area: 1716 sgft. Ful[Baths: 2 Add[Floor Area: 0 SOL Half-BaMs: 0 Attic Area: 0 Sgft. Roof Type: Gable Finished Basement: 0 sgfL Heat Type: Forced hot Water Basement: 0 sgft. Fuel Type: Natuml.Gas Basement Type: Exterior: Wood Side/Shingles Attached Garage: 0 Foundation: Other Garage: 0 Air Conditioned: No Fin**aces: 1 Condition: Average/Good _Assessment Wormation Last Sale Daae: 8/1/1994 Last Sale Prue: $320,000 Last Sale Book: 4097 Last Sale Page: 122 -M p,-Ref-: .4000042 8:00022 L-00000 Tax Rate(Res): 11.4 Land Valuer: $191,600 ..Tax Rate(Oomtrt): 13.78 Building Value: $402,200 Tax Rate(Ind): - 13.78 Mise Improvements: $0 Fiscal Year. 1008 Total Value: $593,800 Estimated Ta= $6,76932 Sales History Recent Sale#1 Sale Price: $320,000. Sale Date: 8/1/1994 •Buyer Name: ChristophPr 3 Allen Seller Name: H P Gaffney 3rd Lender Name: First Federal Svgs Sk Mortgage Amount: $52,000 Sale Book; 4097 Sale page: 122 Recent Sale#2 Sale Price: $295,000 Sale Date: 8/16/1993 Buyer Name: H P Gaffney 3rd Seger Name: Robert Scanlon Leader Name: Chaserranhattan Ansvc Mortgage Amouft $236,000 -Sale Boolc Sale Page: 221 The trformaWn in the Pubtt Record Is set forth verbatim as receNed by FOS M from third partes,."thoat veScaton or change. oft 1/24/2009 2:58 PM 0 � � f NORTFr � ti y � e � o,P ««..1.. A�R.{T!O ��SStcous�� BUILDING DEPARTMENT Community Development Division December 3,2008 Planning Board Town of North Andover 1600 Osgood Street Building 20,Suite 2-36 North Andover,Massachusetts 01845 RE: Proposed Wireless Service Facility of Metro PCS Massachusetts LLC Trinitarian Congregational Church of-North Andover 70 Elm Street North Andover, MA Dear Members of the Planning Board: I have reviewed the Wireless Service Facilities Section 8.9.3(c)(v)(1) of the Zoning Bylaw of the Town of North Andover,which reads in part: :..'A trtinimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures,whether.attac hed 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. The aforementioned Section does not:apply to the proposed installation at the Trinitarian Congregational Church of North Andover,as the proposed antennas will be installed within the existing church spire. Furthermore,Section 8.9.3(c)(vx2)reads in part ...In the event that a preexistent structure is proposed as a mountfor-a wireless service facility,the setback provisions of the zoning district shall apply.In the case of the preexistent non-conforming shuchtres,wireless service facilities and their equipment shatters shall riot increase any Therefore,I am of the opinion that the Applicant does not need to petition the North Andover Zoning Board of Appeals for a variance under Section 8.9.3(cXv)(1). Sincerely, Gerald A.Brown hmpect or of Buildirip7 ring Enforcement Officer cc: Mark Rees,Town Manager Curt Bellevance,Community Development Director Judith M.Tymon,Town Planner Thomas J. Urbelis,Town Counsel 1600 Osgood Street,Building 20,Suite 246,North Andover,Massachusetts 01845 vh.n a7A AAR OW Gm 07A M QU9 Wa6 www 1..v .4na.iti.m.lav—mm P � � toarH 3?Q�Sr�au w slop 1 � ACNUS BUILDING DEPARTMENT Community Development Division February 24,2009 Planning Board Town of North Andover 1600-Osgood Street Building 20,Suite 2-36 North Andover,Massachusetts 01845 RE: Proposed Wireless Service Facility of Metro PCS Massachusetts LLC Trinitarian Congregational Church of North Andover 70 Elm Street North Andover,MA Dear Members of the Planning Board: I have reviewed the material presente4 by Liz Fennessey to Judy Tymon,Town Planner North Andover, related to the MetroPCS application at 70 Elm St. Although I have just received this information today and have not had time to read the documentation thoroughly,I believe that.the issues and standards mentioned in this metenal pertain to fire related safety standards. These issues are addressed by the town's Fire Depad mei t at the time of the issuance of a Building Permit..If you have any other questions, let me know. Sincerely, Gerald A.Brown,Inspector of Buildings cc: Judith Tycoon,Town Planner 1600 Osgood Street,Suite 2-U North Andover,ftsachusetts 01845 Phone 918.68$.9545 Fax 978.688.9542 Web www.townekorthandover.com Q �_ ZONING BYLAW TOWN OF NORTH ANDOVER 1972 Last amended 2008 2.68 Structure A combination of materials assembled at a location to give support or shelter that is safe and stable, which includes, but is not limited to the following: buildings, stadiums, tents, reviewing stands platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, bridges, sheds, shelters, fences and walls, display signs, and storage trailers or units, whether intended for permanent or temporary purposes, used for storage of goods and products associated with the operations of any business on the subject parcel(s), and remain in any relatively fixed location. The term structure shall be construed as if followed by the words "or part thereof', but shall not include underground utilities,driveways, parking lots, agricultural storage trailers and vehicles, and the like. Where the North Andover General and Zoning Bylaws are silent,then the current edition of the Massachusetts Building Code shall be assumed to apply. Section 8.9 Wireless Service Facilities 1) Purpose a) It is the express purpose of this Bylaw to minimize the visual and environmental impacts as well as any potential deleterious impact on property value, of wireless service facilities upon properties located within the Town or adjacent thereto.No wireless service facility shall be placed, constructed or modified within the Town without first obtaining site plan approval from the Special Permit Granting Authority(SPGA). The Planning Board shall be the Special Permit Granting Authority for the issuance of a special permit to allow the placement, construction and modification of wireless service facilities within the town. This bylaw is intended to be used in conjunction with other regulations adopted by the Town, and other zoning and general bylaws designed to encourage appropriate land use,environmental protection, preservation of the rural character and the provision of adequate infrastructure development in North Andover. b) The regulation of wireless service facilities is consistent with the purpose of the North Andover Zoning Bylaw and planning efforts at the local government level to further the conservation and preservation of developed, natural and undeveloped areas, wildlife, flora and habitats for endangered species; protection of the natural resources of North Andover, enhancement of open space areas and respect for North Andover's rural character. 2) Definitions: a) Above Ground Level(AGL). A measurement of height from the natural grade of a site to the highest point of the structure. b) Above Mean Sea Level (AMSL). A uniform point from which height above sea level (or zero elevation) can be measured. c) Antenna. The surface from which wireless radio signals are sent and received by a wireless service facility. d) Camouflaged. A wireless service facility that is disguised, hidden, part of an existing or proposed structure or placed within a preexistent or proposed structure is considered to be "camouflaged." e) Carrier. A company that provides wireless services. f) Co-location. The use of a single mount on the ground by more than one carrier(vertical colocation)and/or several mounts on a preexistent building by more than one carrier. g) Cross-polarized (or dual-polarized)antenna. A low mount that has three panels flush mounted or attached very close to the shaft. h) Elevation. The measurement of height above mean sea level. FN Z i) Environmental Assessment(EA). An EA is the document required by the Federal Communications Commission (FCC)and the National Environmental Policy Act(NEPA) when a wireless service facility is placed in certain designated areas. j) Equipment Shelter. An enclosed, structure,cabinet, shed or box at the base of the mount within which are housed batteries and electrical equipment. k) Functionally Equivalent Services. Cellular, Personal Communication Services(PCS), Enhanced Specialized Mobile Radio, Specialized Mobile Radio and Paging. 1) GPS. Ground Positing System by satellite location of antennas. in) Guyed Tower. A lattice tower that is tied to the ground or other surface by diagonal cables. n) Lattice Tower. A type of mount that is self-supporting with multiple legs and cross bracing of structural steel. o) Licensed Carrier. A Company authorized by the FCC to construct and operate a commercial mobile radio service system. p) Monopole. The type of mount that is self-supporting with a single shaft of wood steel or concrete and a platform (or racks) for panel antennas arrayed at the top. q) Mount. The structure or surface upon which antennas are mounted, including the following four types of mounts: (1) Roof Mounted: Mounted on the roof of a building. (2) Side-mounted: Mounted on the side of a building (3) Ground-mounted: Mounted on the ground. (4) Structure-mounted: Mounted on a structure other than a building. r) Omnidirectional (whip)antenna. A thin rod that beams and receives a signal in all directions. s) Panel Antenna. A flat surface antenna usually developed in multiples. t) PCS. Communications Services.These are broadband radiowave systems that operate at a radio frequency in the 1850 - 1900 megahertz range. u) Radiofrequency(RF) Engineer. An engineer specializing in electric or microwave engineering,especially the study of radio frequencies. v) Radiofrequency Radiation (RFR). The emissions from wireless service facilities as defined in the FCC Guidelines for Evaluating the 65 Environmental Effects of Radiofrequency Radiation(FCC Guidelines)or any other applicable FCC guidelines and regulations. w) Security Barrier. A locked impenetrable wail,fence or berm that completely seals an area from unauthorized entry or trespass. x) Separation. The distances between one array of antennas and another array. y) Utility. A system of wires or conductors and supporting structures that functions in the transmission of electrical energy or communication services (both audio and video) between generating stations, sub-stations, and transmission lines or other utility services. z) Wireless Service Facility. Facilities used for the principle purpose of commercial or public wireless communications uses, such as cellular telephone services, enhanced specialized mobile radio services, microwave communications, wireless communications services, paging services and the like, as defined in Section 704 of the Federal Telecommunications Act of 1996, as amended. Such facilities shall include towers, antennae,antennae support structures, panels,dishes and accessory structures. aa) Wireless Services. The three types of services regulated by this Bylaw: commercial mobile radio services, unlicensed wireless services,and common carrier wireless exchange access services. 3) District Regulations a) Use Regulations: A wireless service facility shall require a building permit in all cases and may be permitted as follows: FN 3 i) The carrier must demonstrate that the facility is necessary in order to provide adequate service to the public. ii) A wireless service facility may locate as of right on any existing guyed tower, lattice tower, monopole or electric utility transmission tower for which a special permit issued under this Section 8.9 is in effect,provided that the new facility shall first obtain site plan review approval from the Planning Board and, provided further that any new facility shall not exceed the terms and conditions of the special permit in effect for the existing facility on which it is to be located. iii) No wireless service facility shall be located in the Town except upon issuance of a special permit in accordance with Section 10.3 of this Bylaw. Such a facility may be located in any zoning district in the Town, provided that the proposed facility satisfies all of the requirements set forth in this Bylaw. b) Location: Applicants seeking approval for wireless service facilities shall comply with the following: i) If feasible, wireless service facilities shall be located on preexistent structures, including but not limited to buildings or structures, preexistent telecommunications facilities, utility poles and towers, and related facilities, provided that such installation preserves the character and integrity of those structures. In particular, applicants are urged to consider use of preexistent telephone and electric utility structures as sites for one or more wireless service facilities.The applicant shall have the burden of proving that there are no feasible preexistent structures upon which to locate. ii) If the applicant demonstrates to the satisfaction of the SPGA (Special Permit Granting Authority)that it is not feasible to locate on a preexistent structure, wireless service facilities shall be camouflaged to the greatest extent possible, including but not limited to: use of compatible building materials and colors, screening, landscaping, with natural and/or artificial plantings (as indicated through site plan review), and placement within trees. iii) The applicant shall submit documentation of the legal right to install and use the proposed facility mount at the time of application for a building permit and/or Special Permit. c) Dimensional Requirements: Wireless service facilities shall comply with the following requirements: i) Height, General Regardless of the type of mount, wireless service facilities shall be no higher than ten feet above the average height of buildings within 300 feet of the proposed facility. In addition, the height of a wireless service facility shall not exceed by more than 10 feet the height limitations of the zoning district in which the facility is proposed to be located, unless the facility is completely camouflaged such as within a flagpole, steeple, chimney, or similar structure. Wireless service facilities may locate on a building that is legally non- conforming with respect to height, provided that the facilities do not project above the existing building height. ii) Height, Ground-Mounted Facilities Ground-mounted wireless service facilities shall not project higher than ten feet above the average building height or, if there are no buildings within 300 feet,these facilities shall not project higher than ten feet above the average tree canopy height, measured from ground level(AGL). If there are no buildings within 300 feet of the proposed site of the facility, all ground-mounted wireless service facilities shall be surrounded by dense tree growth to screen views of the facility in all directions. These trees may exist or may be planted on site. iii) Height, Side-and Roof-Mounted Facilities Side-and roof-mounted wireless service facilities shall not project more than ten (10) feet above the height of an existing building or structure nor project more than ten (10) feet above the height limit of the zoning district within which the facility is located. Wireless service facilities may locate on a building that FN is legally nonconforming with the respect to height, provided that the facilities do not project above the existing building height. iv) Height, Preexistent Structures(Utility)New antennas located on any of the following structures existing on the effective date of this bylaw shall be exempt from the height restrictions of this bylaw provided that there is no increase in height of the existing structure as a result of the installation of a wireless service facility: Water towers, guyed towers, lattice towers, fire towers and monopoles. v) Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition, the following setbacks shall be observed. (1) In order to ensure public safety, the minimum distance from the base of any ground- mounted wireless service facility to any property line, shall be 2x the height of the facility/mount, including any antennas or other appurtenances. This set back is considered the "fall zone". A minimum setback of 600 feet shall be required for all wireless devices,antenna and their mounting structures, whether attached to a new or existing structure,as measured from the adjacent property line of properties which are either zoned for, or contain, residential and or educational uses of any types. (2) 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. 4) Design Standards a) Visibility/Camouflage Wireless service facilities shall be camouflaged as follows i) Camouflage by Existing Buildings or Structures (1) When a wireless service facility extends above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind preexistent architectural features to limit its visibility from public ways. Facilities mounted on a roof shall be stepped back from the front facade in order to limit their impact on the building's silhouette. (2) Wireless service facilities which are side-mounted shall blend with the preexistent building's architecture and, if over 5 square feet, shall be shielded with material which is consistent with the design features and materials of the building. ii) Camouflage by Vegetation. If wireless service facilities are not camouflaged from public viewing areas by existing buildings or structures,they shall be surrounded by buffers of dense tree growth and under story vegetation in all directions to create an effective year- round visual buffer. Ground-mounted wireless service facilities shall provide year-round vertical evergreen vegetated buffer of 50 feet,or 75%of the overall height of the structure, in all directions. Trees and vegetation may be existing on the subject property or installed as part of the proposed facility or a combination of both. Vegetation should be natural in appearance and consistent with surroundings. iii) Color (1) Wireless service facilities, which are side-mounted on buildings, shall be painted or constructed of materials to match the color of the building material directly behind them. (2) To the extent that any wireless service facilities extend above the height of the vegetation immediately surrounding it, they must be painted in a light gray or light blue hue which blends with sky and clouds iv) Equipment Shelters Equipment shelters for wireless service facilities shall be designed consistent with one of the following design standards: FN 5 (l) Equipment shelters must be located in underground vaults; or (2) designed consistent with traditional materials,color and design of the area, or (3) camouflaged behind an effective year-round landscape buffer, equal to the height of the proposed building, and/or wooden fence acceptable to the permitting authority b) Lighting and signage i) Wireless service facilities shall be lit only if required by the Federal Aviation Administration (FAA). Lighting of equipment structures and any other facilities on site shall be shielded from abutting properties. There shall be total cutoff of all light at the property lines of the parcel to be developed, and foot-candle measurements at the property line shall be 0.0 initial foot-candles when measured at grade. ii) Signs shall be limited to those needed to identify the property and the owner and warn of any danger. No tower or other facility shall contain any signs or other devices for the purpose of advertisement. All signs shall comply with the requirements of Section 6; Signs and Outdoor Lighting Regulations of this bylaw. iii) All ground mounted wireless,service facilities shall be surrounded by a security barrier and shall be protected against unauthorized climbing or other access by the public. c) Historic Buildings i) Any wireless service facilities located on or within a historic structure shall not alter the character-defining features, distinctive construction methods, or original historic materials of the building. ii) Any alteration made to a historic structure to accommodate a wireless service facility shall be fully reversible. iii) Wireless service facilities within an historic district shall be concealed within or behind existing architectural features,or shall be located so that they are not visible from public roads and viewing areas within the district. iv) The Historic District Commission must review all appropriate facilities. d) Scenic Landscapes and Vistas i) No facility shall be located within 300 feet of a Scenic Road. If the facility is located farther than 300 feet from the scenic road, the height regulations described elsewhere in this Bylaw shall apply. ii) Wireless service facilities shall not be located within open areas that are visible from public roads, recreational areas or residential development. As required in the Camouflage section above,all ground mounted wireless service facilities that are not camouflaged by existing buildings or structures shall be surrounded by a buffer of dense tree growth. e) Environmental Standards i) Wireless services facilities shall not be located in wetland resource areas. Locating of wireless facilities in wetland buffer areas shall he avoided whenever possible and disturbance to wetland buffer areas shall be minimized. All Conservation Commission regulations and procedures must be followed. ii) No hazardous waste shall be discharged on the site of any personal wireless service facility. If any hazardous materials are to be used on site,there shall be provisions for full containment of such materials. An enclosed containment area shall be provided with a sealed floor, designed to contain at least 110%of the volume of the hazardous materials stored or used on site. Applicant must comply with all federal, state and local regulations governing hazardous materials. iii) Storm water run-off as a result of the wireless facility shall be contained on-site and comply with the DEP Storm Water Management regulations as applicable. iv) Ground-mounted equipment for wireless service facilities shall not generate acoustic noise in excess of 50 dB at the security barrier. FN b v) Roof-mounted or side-mounted equipment for wireless service facilities shall not generate noise in excess of 50 dB at ground level at the base of the building closest to the antenna. f) Safety Standards i) Radiofrequency Radiation (RFR) Standards. All equipment proposed for a wireless service facility shall be authorized per the FCC Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation (FCC Guidelines)or any other applicable FCC guidelines and regulations. ii) Structural Integrity. The applicant shall provide certification by a structural engineer that the wireless service facility is structurally sound for the proposed facility. 5) Application Procedures a) Special Permit Granting Authority(SPGA). The Special Permit Granting Authority (SPGA) for wireless service facilities shall be the Planning Board. b) Pre-Application Conference.Prior to the submission of an application for a Special Permit under this regulation, the applicant is strongly encouraged to meet with the SPGA at a public meeting to discuss the proposed wireless service facility in general terms and to clarify the filing requirements. c) Pre-Application Conference Filing Requirements. The purpose of the conference is to inform the SPGA as to the preliminary nature of the proposed wireless service facility. As such, no formal filings are required for the pre-application conference. However,the applicant is encouraged to prepare sufficient preliminary architectural and/or engineering drawings to inform the SPGA of the location of the proposed facility, as well as its scale and overall design. d) Application Filing Requirements. The following shall be included with an application for a Special Permit for all wireless service facilities: i) General Filing Requirements (1) Name, address and telephone number of applicant and any co-applicants as well as any agents for the applicant or co-applicants. A 24-hour emergency telephone contact number shall be included for use during construction as well as operation of the wireless communication facility. (2) Co-applicants may include the landowner of the subject property, licensed carriers and tenants for the wireless service facility (3) Every application for a wireless service facility Special Permit shall include at least one licensed carrier and the owner of the land as an applicant or a co-applicant. (4) Original signatures are required for the applicant and all co-applicants applying for the Special Permit. If an agent represents the applicant or co-applicant, an original signature authorizing the agent to represent the applicant and/or co-applicant is required. Photo reproductions of signatures will not be accepted. All other filing requirements in the Zoning Bylaw and the Rules and Regulations as applicable must be complied with. ii) Location Filing Requirements (1) Identify the subject property by including the name of the nearest road or roads, street address, and Assessors Map and Parcel number of subject property (2) Identify the Zoning District designation for the subject parcel. Submit a copy of Town zoning map with parcel identified. (3) A locus map at a scale of 1" = 1500' showing the subject property and all properties within 300 feet and the location of all buildings, including accessory structures, on all properties shown. (4) A map showing the other preexistent and approved wireless service facilities in North Andover and outside North Andover within one mile of its boundary. FN 7 (5) GPS all equivalent system locating by latitude and longitude wireless service facilities iii) Siting Filing Requirements. A one-inch-equals-40 feet plan prepared by a Registered Professional Engineer in the Commonwealth of Massachusetts showing the following: (1) Property lines for the subject property. (2) Property lines of all properties within 300 feet of the proposed location. (3) Tree cover on the subject property and all properties directly abutting the subject property, by dominant species and average height. (4) Outline of all existing buildings, including purpose (e.g. residential buildings, garages, Accessory structures, etc.) on subject property and all properties adjacent to the subject property. (5) Proposed location of antenna, mount and equipment shelter(s). (6) Proposed security barrier, indicating type and extent as well as point of controlled entry. (7) Location of all roads, public and private,on the subject property and on all adjacent properties within 300 feet including driveways proposed to serve the wireless service facility. (8) Distances,at grade, from the proposed wireless service facility to each building on the vicinity plan. (9) Contours at each 2 feet AMSL for the subject property and adjacent properties within 300 feet. (10) All proposed changes to the preexistent property, including grading, vegetation removal and temporary or permanent roads and driveways. (11) Representations, dimensioned and to scale,of the proposed mount, antennas, equipment shelters, cable runs, parking areas and any other construction or development attendant to the wireless service facility. (12) Lines representing the sight line showing viewpoint(point from which view is taken) and visible point(point being viewed) from 'Sight Lines" subsection below. (13) Location of all wetlands on the subject property and within 100' of the proposed facility as approved by the Conservation Commission. iv) Sight lines and photographs as described below: (1) Sight line representation. A sight line representation shall be drawn from any public road within 300 feet and the closest facade of each residential building(viewpoint) within 300 feet to the highest point(visible point) of the wireless service facility. Each sight line shall be depicted in profile,drawn at one-inch equals 40 feet scale.The profiles shall show all intervening trees and buildings. In the event there is only one (or more) residential building within 300 feet there shall be at least two sight lines from the closest habitable structures or public roads, if any. (2) Preexistent(before condition) photographs. Each sight line shall be illustrated by one four-inch by six-inch color photograph of what can currently be seen from any public road and any residential building within 300 feet. (3) Proposed(after condition) photographs. Each of the preexistent condition photographs shall have the proposed wireless service facility superimposed on it to show what will be seen from public roads and residential buildings if the proposed wireless service facility is built. (4) Siting elevations or views at-grade from the north, south, east and west for a 50-foot radius around the proposed wireless service facility plus from all preexistent public and private roads that serve the subject property. Elevations shall be at either one-quarter inch equals one foot or one-eight inch equals one foot scale and show the following: (a) Antennas, mounts and equipment shelter(s), with total elevation dimensions and average ground level (AGL)of the highest point. All future proposed antennas, FN 8 mounts and equipment shelters if any must be shown in order to be included in the Special Permit. (b) Security barrier. If the security barrier will block views of the wireless service facility,the barrier drawing shall be cut away to show the view behind the barrier. (c) Any and all structures on the subject property. (d) Preexistent trees and shrubs at current height and proposed trees and shrubs at proposed height at time of installation, with approximate elevations dimensioned. (e) Grade changes, or cuts and fills,to be shown as original grade and new grade line, with two-foot contours AMSL. v) Design Filing Requirements (1) Equipment brochures for the proposed wireless service facility such as manufacturer's specifications or trade journal reprints shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any. (2) Materials of the proposed wireless service facility specified by generic type and specific treatment(e.g. anodized aluminum stained wood, painted fiberglass, alloys, etc.). These shall be provided for the antennas, mounts, equipment shelters, cables as well as cable runs, and security barrier, if any. (3) Colors of the proposed wireless service facility represented by a color board showing actual colors proposed. Colors shall be provided for the antenna mounts, equipment shelters, cables as well as cable runs, and security barrier, if any. (4) Dimensions of the wireless service facility specified for all three directions: height, width and breadth. These shall be provided for the antennas, mounts, equipment shelters and security barrier, if any. (5) Appearance shown by at least two photographic superimposition's of the wireless service facility within the subject property. The photographic superimposition's shall be provided for the antennas, mounts,equipment shelters, cables as well as cable runs, and security barrier, if any, for the total height, width and breadth. (6) Landscape plan including preexistent trees and shrubs and those proposed to be added, identified by size of specimen at installation and species. (7) During the public hearing process the applicant shall schedule with the Planning Board a balloon or crane test at the proposed site, at the expense of the applicant,to illustrate the height of the proposed facility. (8) If lighting on the site is required by the FAA, the applicant shall submit a manufacturer's computer generated point-to-point printout, indicating the horizontal foot-candle levels at grade, within the property to be developed and twenty-five (25) feet beyond property lines. The printout shall indicate the locations and types of luminaries proposed. vi) Noise Filing Requirements (1) The applicant shall provide a statement listing the preexistent and maximum future projected measurements of noise from the proposed wireless service facilities, measured in decibels Ldn (common logarithmic scale,accounting for greater sensitivity at night), for the following: (a) Preexistent or ambient: the measures of preexistent noise (b) Preexistent plus proposed wireless service facilities: maximum estimate of noise from the proposed wireless service facility plus the preexistent noise environment. (c) Such statement shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet DEP requirements and Section 8.9(4)(e). vii)Radiofrequency Radiation (RFR) Filing Requirements (1) All telecommunications facilities shall be operated only at Federal Communications Commission (FCC)designated frequencies, power levels and standards, including FCC FN Radio Frequency Emissions standards. The applicant shall provide certification demonstrating that the maximum allowable frequencies; power levels will not be exceeded. Certifications shall include technical specifications, a written explanation of those specifications, and, if necessary, field verification. The Permit Granting Authority may condition any Special Permit granted under this section upon a periodic submittal of certification of compliance with said standards. (2) In order to determine compliance with applicable FCC regulations, the applicant shall provide a statement listing the preexistent and maximum future projected measurements of RFR from the proposed wireless service facility, including all co- locators, for the following situations: (a) Preexistent or ambient: the measurement of preexistent RFR. (b) Preexistent plus proposed wireless service facilities: maximum estimate of RFR from the proposed wireless service facility plus the preexistent RFR environment. (c) Certification, signed by a engineer, stating that RFR measurements are accurate and meet FCC Guidelines as specified in the Radiofrequency Radiation Standards subsection of this Bylaw. (3) Applicant must submit a copy of the letter from the Massachusetts Department of Public Health approving the site for this facility as required by 105 CMR 122.000 requires that the Department of Public Health approve all sites for wireless facilities with respect to emissions. viii) Federal Environmental Filing Requirements (1) At the time of application filing, an Environmental Assessment (EA)that meets FCC requirements shall be submitted to the Town for each wireless service facility site that requires such an EA to be submitted to the FCC (2) The applicant shall list location,type and amount(including radiation trace elements) of any materials proposed for use within the wireless service facility that are considered hazardous by the federal,state or local government. ix) Waiver. The SPGA may waive one or more of the application filing requirements of this section if it finds that such information is not needed for a thorough review of a proposed personal wireless service facility. 6) Co-location a) Licensed carriers shall share wireless service facilities and sites where feasible and appropriate,thereby reducing the number of wireless service facilities that are stand-alone facilities. All applicants for a Special Permit for a wireless service facility shall demonstrate a good faith effort to co-locate with other carriers. Such good faith effort includes: i) A survey of all preexistent structures that may be feasible sites for co-locating wireless service facilities; ii) Contact,with all other licensed carriers for commercial mobile radio services operating in the Commonwealth of Massachusetts;and iii) Sharing information necessary to determine if co-location is feasible under the design configuration most accommodating to co-location. b) An Applicant shall demonstrate to the Planning Board that it has made a good faith effort to co-locate its facility upon an existing facility. The Town may retain a technical expert in the field of RF engineering and/or a structural engineer to verify if co-location at the site is not feasible or is feasible given the design configuration most accommodating to co-location. The cost for such a technical expert will be at the expense of the applicant. The Town may deny a Special Permit to an applicant who has not demonstrated a good faith effort to provide for co- location, FN )0 c) If the applicant does intend to co-locate or to permit co-location, the Town shall request drawings and studies that show the final appearance and operation of the wireless service facility at full build-out. d) If the SPGA approves co-location for a wireless service facility site,the Special Permit shall indicate how many facilities of what type shall be permitted on that site. Pursuant to Section 8.9(3) Regulations facilities specified in the Special Permit approval shall require no further zoning approval. However,the addition of any facilities not specified in the approved Special Permit shall require a new Special Permit. This allows a carrier to"pre-permit" a site for additional facilities so that they will not have to apply for another Special Permit later. e) In order to detemnine compliance with all applicable FCC Regulations, estimates of RFR emissions will be required for all facilities, including proposed and future facilities both for the applicant and all co-locators. 7) Modifications a) A modification of a wireless service facility may be considered equivalent to an application for a new wireless service facility and will require a Special Permit when the following events apply: i) The applicant and/or co-applicant want to add any equipment or additional height not specified in the original design filing. ii) The applicant and/or co-applicant want to alter the terms of the Special Permit by changing the wireless service facility in one or more of the following ways: (1) Change in the number of facilities permitted on the site; (2) Change in technology used for the wireless service facility. 8) Monitoring and Maintenance a) After the facility is in operation, the applicant shall submit to the SPGA, within 90 days of beginning operations and at annual intervals from the date of issuance of the Special Permit, preexistent and current RFR measurements. Such measurements shall be signed and certified by an RF engineer, stating that RER measurements are accurate and are in compliance or why the measurements fail to comply with all applicable FCC Guidelines as specified in Section 8.9(4)(c)(1) RFR Filing Requirements of this Bylaw. The measurements shall be submitted for both the applicant and all co-locators. b) After the wireless service facility is in operation the applicant shall submit to the SPGA; within 90 days of the issuance of the Special Permit, and at annual intervals from the date of issuance of the Special Permit, preexistent and current measurements of acoustic noise from the wireless service facility. Such measurements shall be certified and signed by an acoustical engineer, stating that noise measurements are accurate and meet the Noise Standards sub- section 6.13.14.5 of this Bylaw c) The applicant and co-applicant or their successor in interest shall maintain the wireless service facility in good condition. Such maintenance shall include, but shall not be limited to, painting, structural integrity of the mount and security barrier and maintenance of the buffer and landscaping. d) Failure to obtain the information required in this subsection 8.9(8)of the Bylaw shall result in a fine of not more than $300 dollars for each offense. Each day that such violation continues shall constitute a separate,offense. 9) Abandonment or Discontinuation of Use a) At such time that a licensed carrier plans to abandon or discontinue operation of a wireless service facility, such carrier will notify the Town by certified US mail of the proposed date of abandonment or discontinuation of operations. Such notice shall be given no less than 30 days FN l) prior to abandonment or discontinuation of operations. In the event that a licensed carrier fails to give such notice,the wireless service facility shall be considered abandoned upon discontinuation of operations. b) Upon abandonment or discontinuation of use, the carrier shall physically remove the wireless service facility within 90 days from the date of abandonment or discontinuation of use. "Physically remove" shall include, but not be limited to: i) Removal of antennas, mount, equipment shelters and security barriers from the subject property. ii) Proper disposal of the waste materials from the site in accordance with local and state solid waste disposal regulations. iii) Restoring the location of the wireless service facility to its natural condition, except that any landscaping and grading shall remain the after-condition. c) As a condition of any special permit for the placement, construction or modification of a wireless service facility, a carrier shall place into escrow a sum of money to cover the costs of removing the facility from the subject property. Said amount shall be certified by an engineer, architect or other qualified professional registered to practice in the Commonwealth of Massachusetts. Said funds shall be held by an independent escrow agent to be appointed by the carrier and the SPGA. The carrier shall authorize and, as necessary, shall obtain the authorization of the owner of the property to allow the escrow agent to enter upon the subject property to remove the facility when the facility has been abandoned or discontinued. In the event the posted amount does not cover the cost of demolition and/or removal the Town may place a lien upon the property covering the difference in cost. d) A facility shall be deemed to be abandoned or discontinued if it has not been used./br the purpose for which it was originally constructed for a period of six (6) months or more. Once abandonment or discontinuance has occurred,the carrier shall remove the facility from the subject property within ninety days. In the event that the carrier fails to remove the facility,the town shall give notice to the carrier arid the independent escrow agent that the facility shall be removed by the escrow agent forthwith and the escrow agent, after affording written notice seven days in advance to the carrier, shall remove the facility. e) Failure to follow the provisions of this subsection 8.9(9) shall result in a fine of not more than $300 dollars for each offense. Each day that such violation continues shall constitute a separate offense. 10)Reconstruction or Replacement of Existing Towers and Monopoles a) Guyed towers, lattice towers, utility towers and monopoles in existence at the time of adoption of Section 8.9 this Bylaw may be reconstructed, altered, extended or replaced on the same site by Special Permit, provided that the SPGA finds that such reconstruction, alteration, extension or replacement will not be substantially more detrimental to the neighborhood and/or the Town than the preexistent non-conforming structure. In making such a determination,the SPGA shall consider whether the proposed reconstruction, alteration, extension or replacement will create public benefits such as opportunities for co-location, improvements in public safety, and/or reduction in visual and environmental impacts. 11)Performance Guarantees a) Insurance in a reasonable amount determined and approved by the SPGA after consultation at the expense of the applicant with one (1) or more insurance companies shall be in force to cover damage from the structure, damage from transmissions and other site liabilities. Annual proof of said insurance must be filed with the SPGA. FN b) Funds, sufficient in the opinion of the SPGA to cover annual maintenance of the facility, shall be placed into escrow and shall be held by the independent escrow agent who shall be authorized to expend the funds for the maintenance of the facility on terms to be agreed upon by the carrier and the SPGA as a condition of approval of the special permit. c) Annual certification demonstrating continuing compliance with the standards of the Federal Communications Commission, Federal Aviation Administration and the American National Standards Institute shall be filed with the SPGA by the Special Pen-nit holder. 12)Term of Special Permit. a) A Special Permit issued for any wireless service facility shall be valid for three(3)years. The special permit may be renewed under the same criteria as the original special permit, provided that the application for renewal of the special permit is made prior to the expiration date of the original or any renewed special permit. Additional measures governing the administration of the special permit are found in Section 10.3 of this Zoning Bylaw(1998/36). 13)Exempt Facilities: Municipal Emergency Wireless Service Facility a) Wireless service facilities necessary to provide and ensure adequate town-wide coverage for public safety communications to include Police, Fire, Ambulance, Emergency Medical Services, and Emergency Management shall be exempt from the provisions of this bylaw. Commercial or private wireless service facilities, unless they are under contract with the Town of North Andover to provide public safety communication, shall not co-locate on or utilize a municipal emergency wireless service facility and shall not be exempt under this section. Further, if said municipal emergency wireless service facility is to be located on private property, the Town must obtain the permission of the landowner. (12-5-2005 Article 6) 13 R � _ Page 1 IVLexisNexts, LEXSEE 386 N J SUPER 62 SPRINT SPECTRUM L.P.,PLAINTIFF,v. BOROUGH OF RINGWOOD ZON- ING BOARD OF ADJUSTMENT AND BOROUGH OF RINGWOOD,DEFEN- DANTS. DOCKET NO: L-4772-04 SUPERIOR COURT OF NEW JERSEY,LAW DIVISION,PASSAIC COUNTY 386 N.J.Super. 62;898 A.2d 1054; 2005 N.J.Super.LEXIS 404 November 22,2005,Decided SUBSEQUENT HISTORY: [***i] Approved for OUTCOME: The court invalidated the three challenged Publication April 11,2006. provisions and severed them from the zoning ordinance. CASE SUMMARY: LexisNexis(R)Headnotes PROCEDURAL POSTURE: Plaintiff, a telecommuni- .cation services company,appealed the decision of defen- Evidence > Procedural Considerations > ,Burdens of dant, a municipal board of adjustment, which denied the Proof>Allocation company's application for a site plan and conditional use Real Property Law > Zoning & Land Use > Judicial approval to erect a telecommunications tower. Review Real Property Law>Zoning&Land Use>Ordinances OVERVIEW: The company leased commercial prop- [HNI] A zoning ordinance is insulated from attack by a erty in the municipality to erect a tower in an area that presumption of validity. The party challenging the ordi- permitted such a facility as a conditional use. The board nance bears the burden of overcoming that presumption. relied on three conditions set forth in the municipality's Reviewing courts should not be concerned over the wis- zoning ordinance to deny the application, namely 1) the dom of an ordinance. If debatable, the ordinance should facility had to be located on land owned or leased by the be upheld. Despite that circumscribed role, a court may municipality; 2) the municipality had to consent to the declare an ordinance invalid if it violates the federal or facility;and 3)the facility could not be within 500 feet of state constitution or if it is preempted by superior legal a residence or 1,000 feet of a hospital, school, or public authority. The validity of a land use ordinance or regula- recreational facility. The court found that the ordinance tion is governed by the Municipal Land Use Law requirement that the facility must be on land owned or (MLUL); in sum, it is valid if it serves the purposes of leased by the municipality was plainly invalid since it zoning, if it is not arbitrary,and if it meets all of the pro- conflicted with the zoning purposes set forth in the Mu- cedural prerequisites set forth in the statute. The party nicipal Land Use Law, N.J. Stat. Ann. § 40:55D-2, and challenging the ordinance may overcome the presump- the Telecommunications Act of 1996, 47 US.C.S. § tion of validity by showing that the ordinance is clearly 332(c). The court noted that the practical effect of the arbitrary,capricious,or unreasonable,or plainly contrary limitation was to prohibit wireless service since the mu- to fundamental principles of zoning or the MLUL. A nicipality had only one suitable site, which it refused to zoning ordinance must advance one of the purposes of sell or lease to the company. The court also found that the MLUL, as set forth in N.J. Stat. Ann. § 40:55D-2. whether a tower was 700 feet or 1,000 feet from a speci- The ordinance may not contravene federal law. fied location was of little significance regarding aesthet- ics. Antitrust & Trade Law >Industry Regulation > Com- munications>Telecommunications Act Page 2 386 N.J. Super.62, *;898 A.2d 1054, **; 2005 N.J. Super. LEXIS 404, Communications Law > Federal Acts > Telecommuni- cations Act>General Overview OPINION BY: HUMPHREYS [HN2] The local or state regulation of the placement, construction, and modification of personal wireless ser- OPINION , vice facilities shall not prohibit or have the effect of pro- hibiting the provision of personal wireless services. 47 [**1056] [*65] HUMPHREYS, J.A.D. (retired U.S.C.S. § 332(c)(7)(B)(i)(II). The local or state gov- and temporarily assigned on recall). emment may not regulate the placement, construction, Plaintiff, a telecommunication services company, and modification of personal wireless service facilities leased property in Ringwood in order to erect a tele- on the basis of the environmental effects of radio fre- communication tower. The property is in a commercial quency emissions to the extent that such facilities com- area in which such facilities are permitted as a condi- ply with the Federal Communications Commission's tional use. regulations concerning such emissions. 332(c)(7)(B)(iv). The Ringwood Board of Adjustment denied plain- tiffs application for site plan and conditional use ap- proval. The Board relied on certain conditions set forth Antitrust & Trade Law >Industry Regulation > Com- in Ringwood's zoning ordinance. munications>State Regulation [*66] Plaintiff contends that three of the conditions Communications Law > Federal Acts > Telecommuni- in the zoning ordinance are invalid, namely: 1)the facil- cations Act>General Overview ity must be located on land owned or leased by the mu- Real Property Law>Zoning&Land Use>Ordinances nicipality; 2) the municipality must consent to the facil- [HN3] Although municipalities may regulate the location ity; and 3) the facility may not be within 500 feet of a of mobile communications facilities, they may not alto- residence or 1,000 feet of a hospital, school or public gether prohibit them from being constructed within the recreational facility. municipality. The Court has considered the evidence and evalu- ated the credibility of the witnesses. The Court has also Real Property Law > Zoning & Land Use > General read the transcripts of the hearings before the Board of Overview Adjustment. Real Property Law>Zoning&Land Use>Ordinances The Court holds that the three [***2] challenged [HN4] Contracts have no place in a zoning plan, and a provisions are invalid. The provisions are severable and zoning contract between a municipality and a property the remainder of the ordinance will stand. owner should not enter into the enactment or enforce- ment of zoning regulations. I The basic principles regarding the validity of an or- dinance were set forth in Rumson Est. v. Mayor of Fair Real Property Law >Zoning & Land Use > Constitu- Haven, 177 N.J. 338, 350-51, 828 A.2d 317, (2003) as tional Limits follows: Real Property Law>Zoning&Land Use>Ordinances [HN5] Proximity requirements in a zoning ordinance Most fundamental is that [HN1] a zon- must comply with the constitutional guarantees of equal ing ordinance is 'insulated from attack'by protection under the law. a presumption of validity. . . . The party challenging the ordinance bears the bur- COUNSEL: Stephen J. Marshall, attorney for plaintiff den of overcoming that presumption . . . (Alan Zublatt,attorney). Reviewing courts should not be concerned over the wisdom of an ordinance. If de- H. Shepard Peck Jr., attorney for defendant Borough of batable,the ordinance should be upheld. . Ringwood Zoning Board of Adjustment (Muscarella Bochet Peck&Edwards, PC,attorneys). Despite that circumscribed role, a David J. Ruitenberg, attorney for defendant Borough of court may declare an ordinance invalid if Ringwood(Maraziti Falcon&Heal,attorneys). it violates the federal or state constitution, . . [**1057] . or if it is preempted by su- JUDGES: HUMPHREYS, J.A.D. (retired and temporar- perior legal authority . . . Further, 'the va- ily assigned on recall). lidity of a land use ordinance or regulation is governed by the MLUL [Municipal Page 3 386 N.J. Super. 62, *;898 A.2d 1054, **; 2005 N.J. Super. LEXIS 404,*** Land Use Law]; in sum, it is valid if it buildings, towers, or, as here, monopoles. serves the purposes of zoning, if it is not . . . arbitrary, and if it meets all of the proce- In the present case, Smart's interest in dural prerequisites set forth in the statute.' constructing a mobile communications fa- cility with a monopole in Fair Lawn con- flicts with the Board's interest in control- The party challenging the ordinance may overcome ling the size and location of the mono- the presumption of validity by showing that the ordi- pole. [***5] Resolution of the conflict nance is "clearly [***3] arbitrary, capricious or unrea- summons an appreciation of the rights of sonable, or plainly contrary to fundamental principles of municipalities to regulate the use of land zoning or the [MLUL] . . . ." (Matter in [] added). Riggs within their boundaries, the rights of car- v. Twp. of Long Beach, 109 N.J. 601, 609, 538 A.2d 808 riers to construct and use essential tele- (1988). A zoning ordinance "must advance one of the communications facilities, and the public purposes of the Municipal Land Use Law as set forth in interest in both reasonable land use regu- NJS.A. 40:55D-2." Id. at 611, 538 A.2d 808. lations and a reliable telecommunications [*67] Furthermore, the ordinance may not contra- network. vene federal law, here the Telecommunications Act of 1996, specifically 47 U.SCA. § 332(c). That section places certain restrictions on local zoning authority. Thus, [HN3] although municipalities "may regulate Among those restrictions are the following. [HN2] the location of mobile communications facilities, they The local or state regulation of the placement, construc- may not altogether prohibit them from being constructed tion and modification of personal wireless service facili- Within the municipality. Smart, [*68] supra, at 327, ties "shall not prohibit or have the effect of prohibiting 704 A.2d 1271. See also, Cell South of N.J. v. Zoning the provision of personal wireless services. Id. at Bd. of Adj. of West Windsor Twp., 172 N.J. 75, 91, 796 (c)(7)(B)(i)(li). A.2d 247, (2002). Further, the local or state [**1058] II government may not "regulate the placement,construction and modification of The ordinance requirement that the facility must be personal wireless service facilities on the basis of the on land owned or leased by the municipality is plainly environmental effects of radio frequency emissions to the invalid. Plaintiff seeks to place its facility in an area in extent that such facilities comply with the Commission's which such use is permitted.The additional requirement [***4] [The Federal Communications Commission] that the facility be on land leased or owned by the mu- regulations concerning such emissions." (Matter in [] nicipality is not in accord with any of the zoning pur- added).Id. at(c)(7)(B)(iv). poses set forth in the MLUL.See N.J.S.A. 40:55D-2. The federal restrictions on local zoning boards re- Further, the requirement suggests a revenue raising flect the great importance of telecommunications. As purpose. Raising revenue for a municipality [***6] is eloquently stated by Justice Pollock in Smart SMR, Inc. not within any of the zoning purposes in the MLUL. v. Fairlawn Bd. of Adj., 152 N.J. 309, 315, 704 A.2d Furthermore, the minutes of the meetings when the 1271 (1997), ordinance was adopted clearly reflect an attempt to use Beneath the surface of this appeal the requirement to further regulate and control the con- stretches the tension between the need for struction and use of such a facility through terms in the telecommunications in an increasingly lease.As stated by the Supreme Court in Houston Petro- technological society and local land use leum Co. v. Automotive Products Credit Assn., 9 N.J. control of sites for mobile communica- 122, 129, 87 A.2d 319(1952),[HN4] "Contracts. . .have tions facilities. In today's world, prompt no place in a zoning plan and a zoning contract between and reliable information is essential to the a municipality and a property owner should not enter into public welfare. Evidencing the need for the enactment or enforcement of zoning regulations."See such information is the proliferation of also Warner Co. vs. Sutton, 274 N.J. Super. 464, 644 wireless communications instruments A.2d 656(App.Div.1994). such as mobile phones, which rely on an- The record strongly suggests that Ringwood is at- tennas for the transmission of signals. For tempting by contract to place controls and restrictions on successful transmission, the antennas of- this facility which should not be permitted under a fair ten are placed on tall structures such as balance of the "rights of municipalities to regulate the Page 4 386 N.J.Super.62, *; 898 A.2d 1054, **; 2005 N.J. Super.LEXIS 404,*** use of land within their boundaries, the rights of carriers cance regarding aesthetics. The same is true with respect to construct and use essential telecommunications facili- to Ringwood's attractive nuisance argument. Moreover, ties and the public interest in both reasonable land use safety measures can be taken which would prevent any regulations and a reliable telecommunications network." danger to children. Smart, supra, at 315-16, 704 A.2d 1271. [***7] [***9] Further, the minutes of council meetings at [*69] Further,the requirement in the present case is the time of the enactment of the ordinance do not suggest in practical effect a prohibition of such wireless service. that preserving aesthetics or preventing attractive nui- Municipal property in Ringwood has only one suitable sances were factors in providing for a 1,000 foot prox- site. Ringwood, without any persuasive explanation, will imity requirement. not sell or lease that site to plaintiff. Hence, Ringwood On the contrary, what the minutes do reflect is that has used this provision of its ordinance to do what it can- not do under federal law, i.e.,prohibit plaintiff from con- the municipality determined to have a proximity re- not atelecommunication facility in Ringwood. See quirement of 1,000 feet because of public concerns about 47 U.S.C.A. 332(c)(7)(B)(i)(li). health hazards from radio frequency emissions.Ata pub- lic hearing on the ordinance, a resident expressed con- The condition that the telecommunications facility cern about these emissions. The planner who had drafted has to be on municipal land is clearly arbitrary, capri- the ordinance for Ringwood responded: "The setbacks cious and unreasonable.The condition is stricken. that we show from residences and school are enormously Ringwood agrees that if this condition is invalid, conservative. We took the curves for the electromagnetic then the condition requiring consent of the municipality fields that are generated by power lines which generate is also invalid. far more current that these kind of transmissions and we doubled that distance." III The planner's statement taken together with testi- The ordinance provides that a communications facil- mony by the Borough Engineer at the Board of Adjust- ity may not be located within 500 feet of a residence or ment reveal an intention to provide a 1,000 foot prox- "within 1,000 feet of a hospital, school or public recrea- imity requirement in order to protect against a public tional facility." perception that the tower presents a health hazard from The tower is some 700 feet from Cradles to Crayon, emissions. An ordinance based on that motivation con- which the Board of Adjustment found to be a "pre- travenes 47 U.S.C.A. 332 (c)(7)(B)(iv) [***10] , which school, nursery school facility." Resolution of the Board expressly forbids local regulation of the placement of of Adjustment denying the variance,page 17. personal wireless service facilities on the basis of the environmental effect of radio frequency emissions. Ringwood [***8] argues that the proximity re- quirement is valid because it will preserve a "desirable plainly invalid requirements of location on municipal visual environment" (paragraph 4 of the pre-trial order) land and consent of the [*71] municipality lead this and protect children from the dangers that a tower pre- Court to believe that the municipality intended by these sents. requirements to retain the right to prohibit such commu- [HN5] Proximity requirements must comply with nication facilities in Ringwood. Federal law does not the constitutional guarantees of equal protection under permit this.See 47 U.S.C.A. 332(c)(7)(B)(i)(H)and(iv). the law. New Jersey has upheld proximity requirements The three conditions are arbitrary and unreasonable for gas stations on the ground they pose special problems and violate federal law.They are stricken. not encountered by other business. See Harvard Ent. Inc. v. Bd. of Adj. of Twp. of Madison, 56 N.J. 362, 266 The Court agrees with Ringwood's position that the A.2d 588 (1970); but seethe concurring [**1059] opin- provisions are severable.The ordinance contains a sever= ion in that case recommending judicial reconsideration of ability clause. The remaining portions of the ordinance proximity requirements for gas stations.See also Exxon are clearly an "independent, self-contained" legislative Co., U.S.A. v. Twp. of [*70] Livingston, 199 N.J. Super. scheme. The invalid conditions are, therefore, severable. 470, 489 A.2d 1218 (App.Div.1985), which invalidated Helmsley v. Borough of Fort Lee, 78 N.J 200, 237, 394 as arbitrary a proximity requirement for a gas station. 56 A.2d 65 (1978), appeal dismissed, 440 U.S. 978, 99 S. N.J. at 369-71, 266 A.2d 588. Ct. 1782, 60 L. Ed. 2d 237, clarified 82 N.J. 128, 411 In the present case, whether a tower is 700 feet or A.2d203[***11] . 1,000 feet from a nursery school is of little if any signifi- Page 1 ¢ LexisNexis- LEXSEE 700 A 2D 581 TERESA KAPTON,Appellant v.BELL ATLANTIC NYNEX MOBILE and CECIL TOWNSHIP NO. 2674 C.D. 1996 COMMONWEALTH COURT OF PENNSYLVANIA 700 A.2d 581; 1997 Pa. Commw. LEXIS 393 March 13, 1997,Argued September 11, 1997,Decided September 11, 1997,Filed SUBSEQUENT HISTORY: [**1] Petition for Al- emanating from the structure after its completion that lowance of Appeal Denied February 24, 1998, Reported would harm appellant or her property. Appellant con- at: 1998 Pa. LEXIS 142. ceded that her cause of action concerning health risks was preempted by 47 U.S.C.S. §332(c)(7)(B)(N). PRIOR HISTORY: Appealed From No. 96-1453. Common Pleas Court of the County of Washington. OUTCOME: The court affirmed the decision of the trial Judge SENECA. court that granted appellees, a telephone company and a township's, preliminary objections and dismissed appel- DISPOSITION: Affirmed. lant property owner's cause of action. Appellant did not have an action in equity because she did not bring forth CASE SUMMARY: her allegations to the zoning board during the permitting process, and she had not stated a cause of action for nui- sance. PROCEDURAL POSTURE: Appellant property owner sought review of the order of the Court of Common LexisNexis(R)Headnotes Pleas of Washington County (Pennsylvania)that granted the preliminary objections filed by appellees, a telephone company and a township, and dismissed appellant's complaint in equity. Real Property Law > Zoning & Land Use > General Overview OVERVIEW: In November 1995 appellee telephone [HNI] Cecil Township, Pa., Ordinance § 502.1:B pro- company filed for a building permit from appellee town- vides that accessory commercial, service, and other non- ship to erect a cellular phone tower. Appellee township residential uses may be permitted or required where such held a public hearing before granting the permit. Appel- uses are scaled primarily to serve the residents of the lant property owner did not participate in the public hear- Planned Residential Development and the surrounding ing or any other phase of the permit process. Appellant community. filed a complaint in equity alleging that the tower was a nuisance, the use of the property did not comply with appellee township's zoning ordinance,and that the tower Civil Procedure >Jurisdiction >Subject Matter Juris- created a health risk. The trial court granted appellees' diction>General Overview preliminary objections and dismissed appellant's cause of Real Property Law > Zoning & Land Use > General action. The court affirmed the trial court's order. The Overview court held that generally an action in equity did not lie [HN2] See the Pennsylvania Municipalities Planning when the matter should have been raised with the zoning Code,Pa. Stat.Ann. tit. 53§10909.1. board. Appellant had not stated a cause of action for nui- sance when there was no allegation of a specific activity Page 2 700 A.2d 581, *; 1997 Pa. Commw. LEXIS 393,** Communications Law > Telephone Services > Wireless Services Joseph A. Cortese, Pittsburgh, for appellee, Bell Atlantic [HN3] See 42 U.S.C.S. §332(c)(7)(B)(iv). Nynex. Mark F. Geary, Washington, for appellee, Cecil Town- Civil Procedure > Pleading & Practice > Defenses, ship. Demurrers, & Objections>Defects of Form Civil Procedure > Pleading & Practice > Defenses, JUDGES: BEFORE: HONORABLE DAN PELLE- Demurrers, & Objections>Demurrers GRINI, Judge, HONORABLE JAMES R. KELLEY, Civil Procedure > Appeals > Standards of Review > Judge, HONORABLE SAMUEL L. RODGERS, Senior General Overview Judge.DISSENTING OPINION BY JUDGE KELLEY. [HN4] The appellate court's scope of review of a chal- lenge to the sustaining of preliminary objection in the OPINION BY: SAMUEL L.RODGERS nature of a demurrer is to determine whether on the facts alleged the law states with certainty that no recovery is OPINION possible. The appellate court must accept as true all well [*581] OPINION BY SENIOR JUDGE ROD- pleaded allegations and material facts averred in the GERS ' complaint, as well as inferences reasonably deducible therefrom and any doubt should be resolved in favor of 1 This case was reassigned to the author on July overruling the demurrer. Preliminary objections, the re- 1, 1997. sult of which will be the dismissal of a cause of action, shall be sustained only in cases that are clear and free FILED: September 11, 1997 from doubt. Teresa Kapton (Appellant) appeals from an order of the Court of Common Pleas of [*582] Washington Real Property Law > Zoning & Land Use > State & County (trial court) that granted the preliminary objec- Regional Planning tions filed by Bell Atlantic NYNEX Mobile (NYNEX) [HN5] An action in equity does not lie when the primary and Cecil Township (Township) (collectively NYNEX) focus is on zoning provisions. Zoning procedures are an and dismissed Appellant's complaint in equity. We af- exclusive remedy when the issues involve location and firm. size of the facility. On March 19, 1996, Appellant filed a complaint in equity against NYNEX alleging that NYNEX committed an actionable [**2] harm by erecting a 270 foot cellular Administrative Law > Judicial Review > Reviewability telephone tower for commercial purposes on property >Exhaustion of Remedies adjacent to Appellant's. Both Appellant's and NYNEX's Civil Procedure>Jurisdiction>General Overview properties are located in an R-1 zoning district, which Real Property Law> Torts>Nuisance>General Over- provides for residential and agricultural uses. In Novem- view ber of 1995, NYNEX filed an application for a building [HN6] An equity action may be pursued to seek injunc- permit to erect the tower. The zoning officer granted the tive relief against existing or threatened nuisances even if permit based on his conclusion that the tower was an the land, structures,or activities causing the nuisance has "essential service."_ been authorized under the zoning procedure, i.e., a land use can have proper zoning approval under an ordinance, 2 [HN1] Section 502 of the Township's Ordi- but because of the manner of its operation the use can nance, entitled Planned Residential Development still constitute a nuisance, subject to an equitable rem- Regulations for the R-1 District,provides in Sec- edy. tion 502.1.13 that"accessory commercial, service, and other non-residential uses may be permitted or required where such uses are scaled primarily Real Property Law > Zoning & Land Use > State & to serve the residents of the Planned Residential Regional Planning Development and the surrounding community." [I N7] See Pennsylvania Municipalities Planning Code, (Township's Ordinance,R.R.at p. 110a.) Pa. Stat.Ann. tit. 53§10617. Prior to granting the permit, the zoning officer re- COUNSEL: Raymond Radakovich, Pittsburgh, for ap- ferred NYNEX to the Township Planning Commission, pellant. which reviewed NYNEX's request at a public hearing and granted [**3] it subject to completion of the appro- Page 3 700 A.2d 581, *; 1997 Pa. Commw. LEXIS 393, ** priate application form. After the application form was tion of personal wireless service submitted, NYNEX's request was approved and a build- facilities on the basis of the envi- ing permit was issued.The tower was constructed during ronmental effects of radio fre- the months of January and February, 1996. Meanwhile, quency emissions to the extent that no action was taken by Appellant. Then in March, 1996, such facilities comply with the Appellant filed her complaint in equity, alleging that(1) [Federal Communications] Com- the communication facility constituted a nuisance,(2)the mission's regulations concerning use of the property did not comply with the zoning ordi- such emissions. nance and the Township had failed to enforce the provi- sions of the ordinance, and(3)the electromagnetic fields generated by the tower created a health and welfare risk On appeal to this Court, ' Appellant raises the fol- to Appellant. lowing issues: (1) whether the zoning hearing board had NYNEX filed preliminary objections, seeking the exclusive jurisdiction to hear and render a final adjudica- dismissal of the complaint. The preliminary objections tion concerning the erection of the communications were granted by the trial court, based on its conclusions tower; and (2) whether the Federal Act provides cause that the alleged zoning violations should have been ad- for dismissal of Appellant's complaint. dressed to the zoning hearing board,which has exclusive jurisdiction over such matters ' and that the allegations 5 Initially, Appellant filed an appeal of the trial concerning the harmful effects from radio frequency court's order with the Superior Court. By order emissions were preempted by the Telecommunications dated August 27, 1996,the appeal was transferred Act of 1996 (Federal Act),42 U.S.C. § 332(c)(7)(B)(iv). to this Court. A 6 [HN4] Our scope of review of a challenge to the sustaining of preliminary objection in the na- 3 Section 909.1 of the Pennsylvania Municipali- ture of a demurrer is to determine whether on the ties Planning Code (MPC), Act of July 31, 1968, facts alleged the law states with certainty that no P.L. 805, as amended, added by the Section 87 of recovery is possible. Anelli v. Arrowhead Lakes the Act of December 21, 1988,P.L. 1328, 53 P.S. Community Association, Inc., 689 A.2d 357 (Pa. §10909.1,provides,in pertinent part,that: Cmwlth. 1997). We must accept as true all well pleaded allegations and material facts averred in [HN2] (a) The zoning hearing the complaint, as well as inferences reasonably board shall have exclusive juris- deducible therefrom and any doubt should be re- diction to hear and render final ad- solved in favor of overruling the demurrer. Id. judications in the following mat- Preliminary objections,the result of which would ters: be the dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.Id. (3) Appeals from the determina- [**5] [*583] Although Appellant frames the first tion of the zoning officer, includ- issue as jurisdictional, she first argues that the zoning ing, but limited to, the granting or ordinance does not permit the type of structure built by denial of any permit, or failure to NYNEX in a residential zone and that the existence of act on the application therefor, the the tower is a nuisance because it is an obstruction and issuance of any cease and desist an unsightly structure which invades the private use and order or the registration or refusal enjoyment of her land. Appellant recognizes that, pursu- to register any nonconforming use, ant to Section 909.1 of the MPC, the zoning hearing structure or lot. board has exclusive jurisdiction to hear and render a final adjudication from a zoning officer's grant or denial of any permit;however, she maintains that the two months [**4] in which the tower was being built did not provide her 4 Section 332(c)(7)(B)(iv)provides: the opportunity to challenge the building permit. There- fore,Appellant contends that her only recourse was a suit [HN3] (iv) No State or local in equity. This argument acknowledges that if Appellant government or instrumentality had been properly vigilant, she could have appealed to thereof may regulate the place- the zoning hearing board as an aggrieved or affected ment, construction, and modifica- party. Page 4 700 A.2d 581, *; 1997 Pa.Commw.LEXIS 393, ** In her complaint, Appellant avers that construction With respect to Appellant's jurisdictional argument, we activities, such as congestion, noise and traffic affected believe that Klein v. Shadyside Health, Education and her, but she does not aver that any specific activity ema- Research Corp., 164 Pa. Commw. 546, 643 A.2d 1120 nating from the structure after its completion reduces her (Pa. Cmwlth. 1994), is instructive. In Klein,the objectors enjoyment of [**8] her property. The standard to be brought an action in equity, challenging the erection, applied is whether or not the tower would cause signifi- [**6] installation and enlargement of a helicopter facil- cant harm. Id. No significant harm is alleged in this ity. The court explained that [HN5] an action in equity complaint. does not lie when the primary focus is on zoning provi- With regard to the issue concerning the alleged risk sions. The Klein court held that zoning procedures are an posed by radio frequency transmissions, Appellant con- exclusive remedy when the issues involve location and cedes that the Federal Act preempts the field. See West- size of the facility. inghouse Electric Corp. v. Council of the Township of The Klein court recognized that [HN6] an equity ac- Hampton, 686 A.2d 905 (Pa. Cmwlth. 1996) (court noted tion may be pursued to seek injunctive relief against ex- the application of 47 U.S.C. § 332(c)(7)(B)(iv) when isting or threatened nuisances even if the land, structures addressing any health risks associated with cellular tow- or activities causing the nuisance had been authorized ers). Appellant requests that this cause of action be under the zoning procedure, i.e., a land use can have stricken, allowing the case to proceed [*584] on her proper zoning approval under an ordinance, but because nuisance claim. Thus, we need not determine the pre- of the manner of its operation the use can still constitute emption issue, because we will not grant relief based on a nuisance, subject to an equitable remedy.Id. However, an argument that Appellant has abandoned. the Klein court noted that the objectors in that case did For the reasons stated above, we affirm the trial not exhaust the administrative remedies, pursued only court's order granting the Township's and NYNEX's pre- the question of jurisdiction in the equity action and pre- liminary objections and dismissing Appellant's complaint sented no nuisance claim. in equity. Section 617 of the MPC,53 P.S. §10617,allows: SAMUEL L. RODGERS,Senior Judge ORDER [HN7] Any aggrieved owner or tenant of NOW, September 11, 1997,the order of the Court of real property who shows that his property Common Pleas of Washington County, at No. 96-1453, or person will be substantially affected by dated July 25, 1996 is affirmed. the alleged violation, in addition to other SAMUEL[**9] L.RODGERS, Senior Judge remedies, may institute any appropriate [**7] action or proceeding to prevent,re- DISSENT BY: JAMES R.KELLEY strain, correct or abate such building [or] structure ... to prevent, in or about such DISSENT premises, any act, conduct, business or use constituting such a violation. DISSENTING OPINION BY JUDGE KELLEY FILED: September 11, 1997 See also Frye Construction, Inc. v. City of Monongahela, I respectfully dissent. 526 Pa. 170, 584 A.2d 946 (1991). A cause of action sounding in nuisance would come within the dictates of As noted by the majority, our scope of review of a this section of the MPC. However, here as in Klein, Ap- challenge to the sustaining of preliminary objections in pellant has failed to state a cause of action in nuisance. In the nature of demurrer is to determine whether on the her brief, Appellant does not dispute that the tower in facts alleged the law states with certainty that no recov- question is a noiseless, odorless and unmanned facility ery is possible. Anelli v. Arrowhead Lakes Community requiring only periodic maintenance visits. She merely Association, Inc., 689 A.2d 357 (Pa. Cmwlth. 1997). We states that such periodic maintenance may be distracting must accept as true all well pleaded allegations and mate- to her and the presence of the tower may reduce the rial facts averred in the complaint, as well as inferences value of her property. Such boilerplate allegations fail to reasonably deducible therefrom and any doubt should be allege specifically the significant harm required by law. resolved in favor of overruling the demurrer.Id. Prelimi- Kembel v. Schlegel, 329 Pa. Super. 159, 478 A.2d 11 nary objections, the result of which would be the dis- (1984). missal of a cause of action, should be sustained only in cases that are clear and free from doubt.Id. Page 5 700 A.2d 581, *; 1997 Pa.Commw.LEXIS 393,** In this appeal, Appellant first claims that the trial sounding in nuisance. A nuisance is the invasion court erred in dismissing her complaint as she failed to of another's interest in the use and enjoyment of avail herself of the administrative remedy contained in her land. Harford Penn-Cann Service, Inc. V. section 909.1(a)(3) of the Municipalities Planning Code Zymblosky, 378 Pa. Super. 578, 549 A.2d 208 (MPC). ' In the first two counts of her complaint filed in (1988). This invasion of another's interest must the trial court Appellant alleged, inter alia, [**10] that cause "significant harm", which is a harm of the construction and use of the tower is in violation of some importance involving more than a slight in- the Cecil Township Zoning Ordinance. In ruling on the convenience. Id. Thus, in order to constitute a trial court's dismissal of the complaint,we are required to nuisance there must be a real and appreciable in- accept these allegations as true.Anelli. terference with one's use of one's land. Id. Clearly, an increase in the congestion, noise and 1 Act of July 31, 1968, P.L. 805, as amended, traffic in the area from the construction and use 53 P.S. §10909.](a)(3). of the tower, and the annoyance, distress and Section 617 of the MPC provides,in pertinent part: deleterious health effects caused by the increased electromagnetic fields flowing from its use con- stitute an actionable nuisance. See, e.g., Bedmin- In case any building [or] structure ... is, ster Township v. Vargo Dragway, Inc., 434 Pa. or is proposed to be, erected, constructed 100, 253 A.2d 659(1969) (Noise emanating from or used in violation of any ordinance the use of land as a drag strip in an area of a resi- enacted under this act or prior enabling dential and farming character constituted a nui- laws ... any aggrieved owner or tenant of sance); Anderson v. Guerrein Sky-Way Amuse- real property who shows that his property ment Co., 346 Pa. 80, 29 A.2d 682 (1943) (Noise or person will be substantially affected by emanating from the use of land as a drive-in thea- the alleged violation, in addition to other ter in a purely residential district constituted a remedies, may institute any appropriate nuisance); Harford Penn-Cann Service, Inc. action or proceeding to prevent, restrain, (Health problems and lost business suffered by a correct or abate such building [or] struc- gas station/restaurant due to dust problems ture ... or to prevent, in or about such caused by the operation of a truck stop constitute premises, any act, conduct, business or use constituting a violation. a nuisance);Evans v. Moffat, 192 Pa. Super. 204, 160 A.2d 465 (1960) (Noxious and foul-smelling gases emanating from mine refuse dumps which 53 P.S. § 10617. Thus, contrary to the majority's asser- caused damage to nearby homes in residential tion, because Appellant [**I I] alleged that the offend- district constituted a nuisance). ing structure violated the zoning ordinance, she was not [**12] [*585] It is clear that Appellant's failure to required to exhaust the administrative remedy contained pursue the statutory remedy under section 909.1(a)(3) in section 909.1(a)(3) before seeking equitable relief does not preclude her from seeking equitable relief in an under section 671. Frye Construction, Inc. v. City of action sounding in nuisance. It is well settled that where Monongahela, 526 Pa. 170, 584 A.2d 946 (1991); In re a nuisance exists, equity may intervene to enjoin it even Leopardi, 516 Pa. 115, 532 A.2d 311 (1987). though there has been a compliance with the relevant In addition, Appellant alleged in her complaint that zoning ordinance. Mazeika v. American Oil Company, 383 Pa. 191, 118 A.2d 142 (1955); Perrin's Appeal, 305 such a use of the property constitutes a private nuisance pa 42, 156 A. 305(1931);Fairview Township v. Schae- in that: it will increase congestion,noise and traffic in the fer, 128 Pa. Commw. 79, 562 A.2d 989 (Pa. Cmwlth. area; interfere with her use and enjoyment of her prop- 1989).As we have previously noted: erty; reduce the value of her property; and create a dra- matic increase in the electromagnetic fields on her prop- There is no doubt that an equity action erty creating a risk to her and her family's health and may be pursued to seek an injunction welfare,causing her annoyance and distress,,and disturb- against an existing or threatened nuisance, ing her peaceful enjoyment of her property. Again, in even if the land, structures or activities ruling on the trial court's dismissal of the complaint, we causing the nuisance have been authorized are required to accept these allegations as true.Anelli.2 under zoning procedures. That is, a land 2 Also contrary to the majority's assertion, if use can obtain a proper zoning approval these allegations are presumed to be true, they under a zoning ordinance which is valid, most certainly allege a valid cause of action and yet, by reason of the manner of its operation or its particular nature, still con- Page 6 700 A.2d 581, *; 1997 Pa. Commw.LEXIS 393, ** stitute a nuisance subject to an equitable (I) shall not unreasonably dis- remedy. criminate among providers of functionally equivalent services; and Klein v. Shadyside Health, Education and Research Corporation, 164 Pa. Commw. 546, 643 A.2d 1120, 1125 (Pa. Cmwlth. 1994). Thus, contrary to the majority's as- (Il)shall not prohibit or have the sertion, Appellant [**13] was not precluded from seek- effect of prohibiting the provision ing equitable relief for the alleged nuisance even though of personal wireless services. she had failed to challenge Bell Atlantic NYNEX Mo- bile's proposed use of the land before the local zoning hearing board. As a result, I would conclude the trial (ii) A State or local government court erred in dismissing Appellant's complaint because or instrumentality thereof shall act she failed to exhaust the administrative remedy under on any request for authorization to section 909.1(a)(3)of the MPC. place, construct, or modify per- In this appeal Appellant next claims that the trial sonal wireless service facilities court erred in dismissing her complaint because section within a reasonable period of time 332(c)(7) of the Federal Telecommunications Act of after the request is duly filed with 1996(Act)' [*586] preempted any inquiry into whether such government or instrumental- the radio frequency emissions from the tower constituted ity, taking into account the nature a private nuisance as alleged in her complaint.° and scope of such request. 3 47 U.S.C. § 332(c)(7). The Act amended a (iii) Any decision by a State or number of the provisions of the Communications local government or instrumental- Act of 1934, 47 U.S.C. §§ 151 613. Section ity thereof to deny a request to 332(c)(7)of the Act provides, in pertinent part: place, construct, or modify per- (7)Preservation of local zoning sonal wireless service facilities authority shall be in writing and supported by substantial evidence contained in a written record. (A)General authority (iv) No State or local govern- Except as provided in this para- ment or instrumentality thereof graph,nothing in this chapter shall may regulate the placement, con- limit or affect the authority of a struction, and modification of per- State or local government or in- sonal wireless service facilities on strumentality thereof over deci- the basis of the environmental ef- sions regarding the placement, fects of radio frequency emissions construction, and modification of to the extent that such facilities personal wireless service facilities. comply with the [Federal Com- munications] Commission's regu- lations concerning such emissions. (B)Limitations (v) Any person adversely af- (i) The regulation of the place- fected by any final action or fail- ment, construction, and modifica- ure to act by a State or local gov- ernment or any instrumentality tion of personal wireless service thereof that is inconsistent with facilities by any State or local this subparagraph may, within 30 government or instrumentality thereof- days after such action or failure to act, commence an action in any court of competent jurisdiction. Page 7 700 A.2d 581, *; 1997 Pa.Commw. LEXIS 393, ** The court shall hear and decide this claim has been abandoned by Appellant and such action on an expedited basis. it should be addressed on the merits. Any person adversely affected by an act or failure to act by a State or As the stated purpose of the Act, section ISI of the local government or any instru- Act provides: mentality thereof that is inconsis- For the purpose of regulating interstate tent with clause (iv) may petition and foreign commerce in communication the Commission for relief. by wire and radio so as to make available, so far as possible, to all the people of the (C)Definitions United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation- For purposes of this paragraph- wide, and world-wide [**15] wire and radio communication service with ade- quate facilities at reasonable charges, for (i) the term "personal wireless the purpose of the national defense, for services" means commercial mo- the purpose of promoting safety of life bile services, unlicensed wireless and property through the use of wire and services, and common carrier radio communication, and for the purpose wireless exchange access services; of securing a more effective execution of this policy by centralizing authority here- tofore granted by law to several agencies (ii) the term "personal wireless and by granting additional authority with service facilities" means facilities respect to interstate and foreign commerce for the provision of personal wire- in wire and radio communication, there is less services;and created a commission to be known as the "Federal Communications Commission", which shall be constituted as hereinafter the term "unlicensed wire- provided,and which shall execute and en- less service means the offering of (iii) force the provisions of this chapter. telecommunications services using duly authorized devices which do 47 U.S.C. §151. not require individual licenses, but does not mean the provision of di- In addition, as noted above,section 332(c)(7) of the rect-to-home satellite services (as Act initially states that "except as provided in this para- defined in section 303(v)of this ti- graph, nothing in this chapter shall limit or affect the tle). authority of a State or local government or instrumental- ity.thereof over the decisions regarding the placement, construction, and modification of personal wireless ser- vice facilities." 47 U.S.C. §332(c)(7)(A). However, sec- 4 The majority opinion states that Appellant tion 332(c)(7) of the Act further provides, "no State or concedes that the Act preempts any inquiry into local government or instrumentality [**16] thereof may the alleged risk imposed by radio frequency regulate the placement,construction,and modification of transmissions. To the contrary, Appellant argues personal wireless service facilities on the basis of the that the provisions of the Act "seemed to convey environmental effects of radio frequency emissions to the jurisdiction upon any court of competent jurisdic- extent that such facilities comply with the [Federal tion involving facility sitings under certain cir- Communications] Commission's regulations concerning cumstances." Brief for Appellant, p. 9. Appellant such emissions."47 U.S.C. §332(c)(7)(B)(iv). then argues in the alternative that if it is deter- mined that the Act preempts any inquiry into this Thus, in order to further the stated purposes of the claim, it does not require the dismissal of the Act, the foregoing provisions of the Act prohibit a state other nuisance claims in the complaint. Id. Asa or local municipality from regulating the construction of result, unlike the majority, I do not believe that personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that they comply with the relevant Federal Com- Page 8 700 A.2d 581, *; 1997 Pa. Commw.LEXIS 393,** munications Commission's regulations. However, by Ashley v. Southwestern Bell Telephone Company, 410 F. their terms, it is clear that the foregoing provisions do not Supp. 1389, 1393 (W.D. Tex. 1976). See also Coopera- even arguably relate to a case such as this, where a pri- tive Communications, Inc. v. AT&T Corp., 867 F Supp. vate individual has instituted an action sounding in nui- 1511, 1516 (D. Utah 1994) ("In enacting the Communi- sance based on the deleterious effects of radio frequency cations Act, it is manifest[**18] that Congress intended emissions of a personal wireless service facility. to occupy the field of telecommunications, in order to Moreover, section 414 of the Communications Act make available to all people of the United States a rapid, of 1934 provides: efficient, reasonably-priced communications service, governed by one uniform regulatory scheme. However, Nothing in this chapter contained shall inclusion of the savings clause[, in section 414,] clearly in any way abridge or alter the remedies indicates Congress' intent that independent state law [*587] now existing at common law or causes of action, such as interference with contract or by statute, [**17] but the provisions of unfair competition, not be subsumed by the Act, but re- this chapter are in addition to such reme- main as separate causes of action. Hence, while some state law claims may relate to providers of telecommuni- dies. cations service, but nevertheless stand as independent claims not arising under the Communications Act..."). 47 U.S.C. §414. s As a United States District Court has Thus, to achieve the stated purposes of the Act, the noted: Federal Congress has specifically limited the ability of a state or local government to regulate the placement or 5 Section 414 of the Communications Act of construction of personal wireless service facilities, and 1934 was not amended by the Act. has afforded providers of such services with a form of redress should a state or local government violate the provisions of the Act.See, e.g.,Bell Atlantic Mobile Sys- Under the [provisions of section tems, Inc. v. Zoning Hearing Board of the Township of 414 of the Communications] Act, federal O'Hara, 676 A.2d 1255 (Pa. Cmwlth. 1996),petition for remedies, therefore, are cumulative to [**19] allowance of appeal granted, 547 Pa. 458, 691 those already existing at common law or A.2d 458 (1997). However, the Federal Congress has by statute. While the national government also specifically stated that the provisions of the Act do may have preempted the field in regula- not "in any way abridge or alter the remedies now exist- tion of telephone and wire communication ing at common law or by statute ... ." 47 U.S.C. § 414. systems under the Communications Act, Clearly, the provisions of section 332 of the Act do not the Act was not designed as a new code eliminate or affect the ability of Appellant to maintain an for the adjustment of private rights. Spe- action sounding in nuisance under the law of Pennsyl- cifically, state tort law of invasion of pri- vania. Ashley; Cooperative Communications, Inc. As a vacy was not preempted by the federal result, I would conclude that the trial court erred in dis- scheme, and no attempt was made to im- missing Appellant's complaint on the basis that section pose uniformity in this area of state law. 332(c)(7) of the Act preempted any inquiry into whether the radio frequency emissions from the tower constituted a private nuisance as alleged in her complaint. JAMES R.KELLEY,Judge Page l *LexisNexis, LEXSEE 2000 CONN SUPER LEXIS 2301 Carl R. Hewitt v.Planning&Zoning Commission of the Town of Montville 555010 SUPERIOR COURT OF CONNECTICUT,JUDICIAL DISTRICT OF NEW LONDON,AT NEW LONDON 2000 Conn.Super. LEXIS 2301 August 29,2000,Decided August 31,2000,Filed NOTICE: [*1] THIS DECISION IS UNRE- Civil Procedure >Jurisdiction >Subject Matter Juris- PORTED AND MAY BE SUBJECT TO FURTHER diction>Jurisdiction Over Actions>General Overview APPELLATE REVIEW. COUNSEL IS CAUTIONED Civil Procedure > Pleading & Practice > Defenses, TO MAKE AN INDEPENDENT DETERMINATION Demurrers, & Objections>Motions to Dismiss OF THE STATUS OF THIS CASE. [HN I] The motion to dismiss may be filed to assert lack of subject matter jurisdiction. Subject matter jurisdiction DISPOSITION: Motion to dismiss granted. has been defined as the power of the court to hear and determine cases of the general class to which the pro- CASE SUMMARY: ceeding in question belong. PROCEDURAL POSTURE: Defendant town planning Civil Procedure > Justiciability >Standing > General and zoning commission moved to dismiss plaintiffs Overview complaint challenging defendant's granting a special Real Property Law > Zoning & Land Use > Judicial permit to construct a wireless telecommunications facil- Review ity. [HN2] It is the plaintiffs burden to plead and prove ag- grievement. Conn. Gen. Stat. §8-8(b) authorizes admin- OVERVIEW: Plaintiff filed a lawsuit challenging a istrative appeal.decisions of a zoning commission of ap- decision of defendant, the town planning and zoning peals. commission, granting a special permit to construct a wireless telecommunications facility. Defendant moved to dismiss the appeal alleging that plaintiff lacked stand- Civil Procedure > Justiciability > Standing > General ing to challenge the decision. The court granted the mo- Overview tion finding that plaintiff failed to allege that he was ag- Civil Procedure > Appeals > Dismissals of Appeals > grieved by the decision under either the statutory or clas- Involuntary Dismissals sical method of determining if a party is aggrieved. Civil Procedure>Appeals>Motions on Appeal [HN3] See Conn. Gen. Stat. §.8-86). OUTCOME: The court granted defendant's motion to dismiss the complaint finding that plaintiff failed to al- lege that he was aggrieved, and therefore, he did not Administrative Law > Judicial Review > Reviewability have standing to bring his appeal. >Standing Civil Procedure > Justiciability > Standing > General LexisNexis(R)Headnotes Overview Civil Procedure >Jurisdiction: >Subject Matter Juris- diction>Jurisdiction Over Actions>General Overview Page 2 2000 Conn. Super.LEXIS 2301, [HN4] Aggrievement is a prerequisite to maintaining a OPINION zoning appeal, and the plaintiff has the burden of plead- MEMORANDUM OF DECISION RE: DEFEN- ing and proving that he is aggrieved by a commission's DANT'S MOTION TO DISMISS decision. Unless the plaintiff alleges and proves ag- grievement, his case must be dismissed for lack of sub- By complaint dated May 12,2000,with a return date ject matter jurisdiction. The jurisdictional requirement of of June 6, 2000, the plaintiff, Carl R. Hewitt, filed an aggrievement serves both as a practical and functional appeal of a decision of the Planning& Zoning Commis- purpose in assuring that only those parties with genuine sion of the Town of Montville("Commission") in which and legitimate interests which are affected an opportunity the Commission approved an application for a special to appeal. permit to Sprint PCS for the construction of a wireless telecommunications facility at 41 Beckwith Road, Oak- dale,Connecticut. Civil Procedure > Justiciability > Standing > General Overview The complaint is brought in one count and summa- Civil Procedure>Jurisdiction>General Overview rily claims, without factual basis, that the "plaintiff is Real Property Law > Zoning & Land Use > Judicial aggrieved by such a granting of the special permit for Review Sprint PCS application for a telecommunications tower." [HN5] There are two categories of aggrievement: statu- Complaint,4. tory and classical. In order to be statutorily aggrieved by The defendant, Sprint PCS, moves to dismiss the a zoning commission's decision, the plaintiff must plead plaintiffs appeal on the basis that the plaintiff is not ag- and prove that he owns land that abuts or is within 100 grieved as a matter of law either statutorily or classically, feet of the property in dispute. Conn. Gen. Stat. § 8(a)(1). by the Commission's decision. Thus, he does not have In order to show classical aggrievement, the plaintiff standing to bring [*2] the complaint and this court does must satisfy a two-part test: first, he must demonstrate a not have subject matter jurisdiction to hear the appeal. specific personal and legal interest in the subject matter of the jurisdiction as distinguished from a general inter- Facts est; and second, he must establish that this specific per- Sprint PCS applied to the Commission for a special sonal and legal interest has been specially and injuriously permit for the construction of a wireless telecommunica- affected by the decision. tions facility at 41 Beckwith Road in Oakdale, Connecti- cut. The special permit was granted by the Commission on May 9, 2000. Complaint, 1. The complaint alleges, Administrative Law>Agency Adjudication >Decisions inter alia, that the Commission acted illegally, arbitrarily >General Overview and in abuse of discretion in granting the permit. Com- Civil Procedure > Justiciability > Standing > General plaint, 5. Overview Real Property Law > Zoning & Land Use > Judicial With respect to the plaintiffs standing to bring this appeal, i.e., the issue of whether he is aggrieved, he al- Review Under Conn. Gen. Stat. § 8(a)(1), aggrieved per- leges only that"the plaintiff is aggrieved by such a grant- son includes any person owning land that abuts or is ing of the special permit for Sprint Spectrum L.P.'s ap- within aradius of 100 feet of any portion of the land in- plication for a telecommunications tower." Complaint,4. Such conclusory allegation, without factual basis, is in- volved in the decision of the Board. "Land involved in" means the land claimed to be owned by the applicant, sufficient to plead aggrievement and thus invoke the excepted by the Commission, as owned by the applicant, court's subject matter jurisdiction. and on which the Commission based its decision. Legal Standard [HN I] The motion to dismiss may be filed to assert lack Civil Procedure > Justiciability >Standing > General of subject matter jurisdiction. FDIC v. Peabody, Inc., Overview 239 Conn. 93, 99, 680 A.2d 1321 (1996). Subject matter [HN7] Generalized and speculative fears are insufficient jurisdiction has been defined as "the power of the court to prove aggrievement. to hear and determine [*3] cases of the general class to which the proceeding in question belong." Grant v. JUDGES: D. Michael Hurley,Judge Trial Referee. Bassman, 221 Conn.'465, 470, 604 A.2d 814(1992). OPINION BY: Michael Hurley [HN2] It is the plaintiffs burden to plead and prove ag- grievement. C.G.S. 8-8(b) authorizes administrative ap- Page 3 2000 Conn. Super. LEXIS 2301, peal decisions of a Zoning Commission of Appeals. This is insufficient to invoke the court's subject matter [HN3] C.G.S. 8-8()provides: jurisdiction. The plaintiff is not aggrieved as a matter of law because under the statute the requirements of statu- Any defendant may, at any time after tory aggrievement for appeals from a zoning commission the return date of the appeal, make a mo- to the Superior Court reads: tion to dismiss the appeal. If the basis of the motion is a claim that the appellant lacks standing to appeal, the appellant shall have the burden of proving standing [HN6] Aggrieved person includes any . . . person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the Thus the plaintiff has the burden that he is aggrieved and Board. has standing to bring this appeal. Here, because the plaintiff has failed to plead facts sufficient to the alleged aggrievement, the court lacks subject matter over the "Land involved in" means the land claimed to be owned appeal. by the applicant,excepted by the Commission,as owned Discussion by the applicant,and on which the Commission based its decision. McNally v. Zoning Commission of the City of The plaintiff has failed to allege aggrievement;therefore, Norwalk, 225 Conn. 1, 8, 621 A.2d 279 (1993). In thiscase,the"land involved in"the Commission's decision is he does not have standing to bring his appeal before this the property for which the application was filed, 41 court. [HN4] Aggrievement is a prerequisite to maintain- Beckwith Road,Oakdale, Connecticut.The plaintiff does ing a zoning appeal, and the plaintiff has the burden of not allege that he owns property within a radius of 100 pleading and proving that he is aggrieved by the Com- [*6] feet of any portion of 41 Beckwith Road, Oakdale, missions decision. Primerica v. Planning & Zoning Connecticut. Therefore, he is not aggrieved pursuant to Commission of Greenwich, 211 Conn. 85, 92, 93, 558 the statute. A.2d 646 (1989). [*4] Unless the plaintiff alleges and proves aggrievement,his case must be dismissed for lack The plaintiff is not classically aggrieved as a matter of of subject matter jurisdiction. Fuller v. Planning& Zon- law. The plaintiff cannot meet the fust requirement for ing Commission, 21 Conn. App. 340, 343, 573 A.2d 1222 classical aggrievement: a demonstrated specific personal (1990). The jurisdictional requirement of aggrievement and legal interest in the subject matter of the Commis- serves both as a practical and functional purpose in as- , Suring that only those parties with genuine and legitimate Sion s decision, as distinguished from the general interest interests which are affected an opportunity to appeal. shared by the members of the community at large. Merrimac Associates, Inc. v. Disesare, 180 Conn. SI1, United Cable Television Services Corp. v. Department of 516, 429 A.2d 967(1980). Public Utility Control, 235 Conn. 334, 342-43, 663 A.2d 1011 (1995). He cannot meet the second requirement of [HN5] There are two categories of aggrievement: statu- showing that the decision caused actual injury to a spe- tory and classical. In order to be statutorily aggrieved by cific personal and legal interest. Id. [HN7] Generalized the Commission's decision, the plaintiff must plead and and speculative fears are insufficient to prove aggrieve- prove that he owns land that abuts or is within 100 feet ment. Walls v. Planning & Zoning Commission of the of the property in dispute. C.G.S. 8(a)(1). In order to Town of Avon, 176 Conn. 475, 477, 408 A.2d 252(1979). show classical aggrievement, the plaintiff must satisfy a The plaintiff makes no allegations for articulating a spe- cific personal and legal interest of the subject matter of two-part test: first, he must demonstrate a specific per- the Commission's decision. Similarly,the plaintiff makes sonal and legal interest in the subject matter of the juris- no allegations of injury at all; thus he makes no allega- diction as distinguished from a general interest; second, tion that the Commissioner's decision caused [*7] injury he must establish that this specific personal and legal interest has been specially and injuriously affected by the to a specific personal and legal interest. Again, the only decision. that the plaintiff makes regarding aggrieve- decision. United Cable Television Services Corp. v. De- ment is devoid of facts: he claims only that "the plaintiff partment of Public Utility Control, 235 Conn. 334, 342- is aggrieved by such a granting of a special permit for 43, 663 A.2d 1011 (1995). [ SJ The plaintiffs complaint Sprint's application for a telecommunications tower." does not allege facts sufficient to demonstrate either classical or statutory aggrievement. With respect to ag- Regarding the plaintiffs objection to the motion to grievement, it alleges no facts at all; rather it summarily dismiss, the court finds that his motion is based upon a claims only that the plaintiff is aggrieved. Complaint, 4. claim of facts not found in the pleadings. The plaintiffs Page 4 2000 Conn. Super.LEXIS 2301, objection improperly attempts to argue that facts not in- ing health concerns, these allegations do not support his cluded in the complaint state a claim for aggrievement. claim for aggrievement as they do not demonstrate a The question of this court's subject matter jurisdiction specific personal [*8] and legal interest as distinguished must be determined based on the allegations of the com- from a general interest. Therefore, the allegations of the plaint. Secondly, the substantive claims upon which the complaint are insufficient, on their face to plead ag- plaintiff bases his claims of aggrievement, i.e., health grievement, and the motion to dismiss must be granted. risks from radio frequency emissions from multiple color Accordingly, since the court finds that there is no statu- communication facilities,cannot be considered by a zon- tory aggrievement nor is there any classical aggrieve- ing commission pursuant to the federal telecommunica- ment,the court grants the motion to dismiss. tions act and thus cannot form a basis for aggrievement. D.Michael Hurley,Judge Trial Referee Finally, even if the plaintiff was not precluded from rais- 138MNX ********** Print Completed ********** Time of Request: Friday, May 15, 2009 16:28:53 EST Print Number: 1823 :157221234 Number of Lines: 169 Number of Pages: Send To: MORIN, PETER FORD LAW PC 1216 BENNINGTON ST EAST BOSTON, MA 02128-1267 Page 1 LNei€ LEXSEE 991 S.W.21)579,583 3 Caution As of: Mar 31,2009 Carol GOFORTH,Mary Felber,Carl Sandrock,Don Lowrimore,Nina Lowrimore, Doyle Wright,Janet Feichtel-Wright,Bill Zemp,and Lawayne Zemp v. Michael SMITH,Judith Carol Smith,and Southwestern Bell Mobile Systems, Inc. 98-1499 SUPREME COURT OF ARKANSAS 338 Ark. 65; 991 S.W.2d 579; 1999 Ark. LEXIS 311 June 10, 1999,Opinion delivered PRIOR HISTORY: [***]] Appeal from Washington properly applied to prevent recovery, as there were tow- Chancery Court;John Lineberger,Judge. ers on the land for 30 years, plaintiffs all purchased their land after the first tower was.built, and defendants en- DISPOSITION: Affirmed. tered into a contract for construction of an expensive tower in reliance on this acquiescence. Further,the tower CASE SUMMARY: was not a nuisance or breach of the restrictive covenant, as 30 years demonstrated that there was no noxious, odorous, or offensive activity involved, and the claimed PROCEDURAL POSTURE: Plaintiffs appealed from injuries were speculative. the Washington Chancery Court (Arkansas) judgment following a bench trial that dismissed their complaint OUTCOME: The order that excluded testimony regard- with prejudice and suppressed testimony related to the ing the environmental effect of radio emissions was af- environmental effect of radio emissions regarding plain- firmed because the issue was preempted by federal law. tiffs' action for injunctive and monetary relief from de- The judgment dismissing the action was affirmed be- fendants'proposed building of a tower. cause there was no error in applying the defenses of waiver and laches, there was no clear error in determin- OVERVIEW: Plaintiffs sought to enjoin the construc- ing that no misrepresentation was proven, and the pro- tion of a telecommunications tower. The court affirmed posed tower did not amount to a nuisance or breach of exclusion of testimony regarding the environmental ef- the restrictive covenant. fects of radio frequency emissions. The state law actions could not be pursued based upon such claimed emissions LexisNexis(R)Headnotes because 47 US.C.S fJ 332(c)(7)(B)(iv) prohibited state laws from impeding tower location and construction de- terminations. The preemption applied to both statutory and common law limitations, such as plaintiffs' state law Civil Procedure > Pleading & Practice > Defenses, action for an injunction. The dismissal of plaintiffs' mis- Demurrers,&Objections>Failures to State Claims representation claim was not clearly erroneous, because Civil Procedure>Appeals>Standards of Review plaintiffs were aware of the possibility that more towers [HN I] In reviewing a trial court's decision on a motion to would be built. The doctrines of laches and waiver were dismiss under Ark. R. Civ. P. 12(b)(6), the appellate Page 2 338 Ark.65, *;991 S.W.2d 579, **; 1999 Ark. LEXIS 311, *** court treats the facts alleged in the complaint as true and ing determinations as to the placement, construction, or views them in the light most favorable to the party who modification of telecommunication towers. filed the complaint. Communications Law > Telephone Services > Wireless Constitutional Law > Supremacy Clause > Federal Services Preemption [HN8] See 47 U.S.C.S.J3 332 (c)(7)(A). [HN2] Congress has the authority to preempt state law. Communications Law > Telephone Services> Wireless Constitutional Law > Supremacy Clause > Supreme Services Law of the Land [HN9] States are denied the ability to consider the envi- [HN3] See U.S. Const. art. 6, cl. 2. ronmental effects of radio frequency emissions when making local construction, placement, and modification decisions of telecommunications towers. 47 U.S.C.S. J3 Constitutional Law > Supremacy Clause > General 332(c)(7)(B)(iv). Overview Torts > Intentional Torts > Intentional Infliction of Emotional Distress>Defenses Constitutional Law >-Supremacy Clause > General [HN4] A state law is preempted: (1) when congressional Overview enactments explicitly preempt state law; (2) when state Governments>Federal Government> U.S. Congress law regulates conduct in a field that congress intended [HN10] When congress has considered the issue of pre- the federal government to occupy exclusively; (3) when emption and has included in the enacted legislation a state law stands as an obstacle to the accomplishment provision explicitly addressing that issue, and when that and execution of the full purposes and objectives of con- provision provides a reliable indicium of congressional gress; and (4) when compliance with both state and fed- intent with respect to state authority, there is no need to eral law is impossible. infer congressional intent to preempt state laws from the substantive provisions of the legislation. Constitutional Law > Supremacy Clause > General Overview Civil Procedure> Federal& State Interrelationships > [HN5] Implied preemption can occur in the following Erie Doctrine circumstances: (1) when the scope of federal regulation Constitutional Law > Supremacy Clause > General is so pervasive as to make reasonable the inference that Overview congress left no room for the state to act; (2) when the Environmental Law > Federal & State Interrelation- state and federal law actually conflict; (3) when compli- ships>Federal Preemption ance with state and federal law is physically impossible; .[HN11] State law includes common law as well as stat- (4) when the state law stands as an obstacle to the ac- utes and regulations. complishment of the full objectives of congress. Civil Procedure > Appeals > Standards of Review > Communications Law > Telephone Services > Wireless Clearly Erroneous Review Services [HN 12] On appeal,the court considers chancery cases de [HN6] See 47 U.S.C.S.J3 332(c)(7)(B)(iv). novo on the record,but does not reverse a finding of fact by the chancellor unless it is clearly erroneous. Communications Law > Federal Acts > Telecommuni- cations Act>Federal Preemption Civil Procedure > Appeals > Standards of Review > Communications Law > Telephone Services > Wireless Clearly Erroneous Review Services [HN13] A finding is clearly erroneous when, although Environmental Law > Federal & State Interrelation- there is evidence to support it,the reviewing court on the ships>Federal Preemption entire evidence is left with a definite and firm conviction [HN7] The Federal Telecommunications Act of 1996 that a mistake has been committed. explicitly preempts the state from considering environ- mental effects of radio frequency emissions when mak- 338 Ark. 65, *;991 S.W.2d 579, **; Page 3 1999 Ark.LEXIS 311, *** Torts>Business Torts> Fraud& Misrepresentation > to believe those rights are worthless or have been aban- General Overview doned,and that because of a change of conditions during [HN 14] The essential elements of an action for deceit are this delay it would be unjust to the latter to permit him to as follows: (1) a false representation of a material fact; assert them. (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in Civil Procedure > Pleading & Practice > Defenses, reliance upon the representation; (4)justifiable reliance Demurrers, & Objections>Affirmative Defenses on the representation;and(5)damage suffered as a result Torts > Procedure > Commencement & Prosecution > of the reliance. General Overview [HN19] Laches requires a demonstration of prejudice to the party alleging it as a defense resulting from a plain- Torts>Business Torts> Fraud&Misrepresentation > tiffs delay in pursuing a claim. General Overview [FIN 15] An action for fraud or deceit may not be predi- cated on representations relating solely to future events. Contracts Law> Types of Contracts>Covenants However, this rule is inapplicable if the person making Real Property Law > Restrictive Covenants > General the representation or prediction knows it to be false at the Overview time it is made. [HN20] Restrictive covenants are to be strictly construed against limitations upon the free use of property, and all doubts resolved in favor of the unfettered use of the land. Civil Procedure > Pleading & Practice > Defenses, Demurrers, & Objections>Affirmative Defenses Civil Procedure > Pretrial Judgments > Nonsuits > Contracts Law> Types of Contracts>Covenants Voluntary Nonsuits Real Property Law > Restrictive Covenants > General [HN- 161 Waiver is the voluntary abandonment or surren- Overview der by a capable person of a right known to him to exist, [HN21] When the language of the restrictive covenant is with the intent that he shall forever be deprived of its clear and unambiguous, the parties will be confined to benefits,and it may occur when one,with full knowledge the meaning of the language employed and that it is im- of the material facts, does something which is inconsis- proper to inquire into the surrounding circumstances or tent with the right or his intention to rely upon it. the objects and purposes of the restriction for aid in its construction. Civil Procedure > Pleading & Practice > Defenses, Demurrers, & Objections>Affirmative Defenses Criminal Law&Procedure>.Criminal Offenses>Mis- Real Property Law > Restrictive Covenants > General cellaneous Offenses>Disruptive Conduct>Disorderly Overview Conduct.&Disturbing the Peace>Elements Torts >Procedure > Commencement & Prosecution > Real Property Law>Torts>Nuisance>General Over- General Overview view [HN 17] The right to enforce a restrictive agreement may [HN22] Nuisance is defined as conduct by one land- be lost by laches or acquiescence, especially when one owner that unreasonably interferes with the use and en- incurs expenditures. joyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undis- turbed use and enjoyment of nearby property. Contracts Law > Consideration > Enforcement of Promises>General Overview Torts > Procedure > Commencement & Prosecution > Real Property Law > Torts > Nuisance > Remedies > General Overview Injunctions>Prerequisites>Injury [HN18] The doctrine of laches is based on a number of Real Property Law > Torts >Nuisance > Types >Pri- equitable principles that are premised on some detrimen- vate Nuisance tal change in position made in reliance upon the action or Real Property Law > Torts>Nuisance> Types>Pub- inaction of the other party. It is based on the assumption lic Nuisance that the party to whom laches is imputed has knowledge [HN23] Equity clearly will enjoin conduct that culmi- of his rights and the opportunity to assert them, that by nates in a private or public nuisance where the resulting reason of his delay some adverse party has good reason Page 4 338 Ark. 65, *;991 S.W.2d 579, **; 1999 Ark. LEXIS 311, *** injury to the nearby property and residents is certain, an obstacle to the accomplishment of the full objectives substantial,and beyond speculation and conjecture. of Congress. 5. CONSTITUTIONAL LAW -- FEDERAL Real Property Law> Torts>Nuisance>General Over- PREEMPTION -- STATES NEED NOT CONSIDER view ISSUE WHEN EXPRESSLY ADDRESSED IN[HN24] In order to constitute a nuisance, the intrusion FEDERAL STATUTE. -- The United States Supreme Court has held that if Congress has considered the ques- ion of preemption and expressly addressed it within a must result in physical harm, as distinguished from un- t founded fear of harm, which must be proven to be cer- tain,substantial,and beyond speculation and conjecture. statute, the states do not need to consider the issue ofpreemption further. 6. CONSTITUTIONAL LAW -- FEDERAL Real Property Law> Torts>Nuisance>General Over- PREEMPTION -- TRIAL COURT CORRECTLY view FOUND CONGRESS HAD EXERCISED [HN25] A landowner may make such use of his property AUTHORITY TO PREEMPT CONSIDERATION OF as he chooses so long as he does not unlawfully or unrea- ENVIRONMENTAL EFFECTS OF RADIO sonably interfere with or harm his neighbor. It is only the EMISSIONS -- TRIAL COURT DID NOT ERR IN unreasonable use or conduct by one landowner which EXCLUDING TESTIMONY CONCERNING results in unwarranted interference with his neighbor ENVIRONMENTAL EFFECTS. -- Although Congress which constitutes a nuisance. has carved out a narrow and well defined area of tele- communications policy in which it has exercised its con- HEADNOTES stitutional authority to preempt state and local laws and 1. MOTIONS -- MOTION TO DISMISS __ has left substantial elements of zoning and land-use mat- REVIEW OF TRIAL COURT'S DECISION. -- In re- ters to state and local control, the Arkansas Supreme viewing a trial court's decision on a motion to dismiss Court concluded that the trial court had correctly found under Ark. R. Civ. P. 12(b)(6), the supreme court treats that Congress had exercised its authority under the Su- the facts alleged in the complaint as true and view them premacy Clause of the Constitution to preempt consid- in the light most favorable to the party who filed the eration of the environmental effects of radio emissions complaint. by the State;the supreme court further concluded that the trial court did not commit error by excluding testimony 2. CONSTITUTIONAL LAW -- FEDERAL concerning the environmental effects of the emissions. PREEMPTION -- CONGRESSIONAL AUTHORITY. - Congress has the authority to preempt state law. 7. APPEAL & ERROR -- CHANCERY CASES -- STANDARD OF REVIEW. -- On appeal, the supreme 3. CONSTITUTIONAL LAW -- FEDERAL court considers chancery cases de novo on the record but PREEMPTION -- WHEN STATE LAW IS does not reverse a finding of fact by the chancellor PREEMPTED. -- A state law is preempted when (1) unless it is clearly erroneous; a fmding is clearly errone- congressional enactments explicitly preempt state law; ous when, although there is evidence to support it, the (2) state law regulates conduct in a field that Congress reviewing court on the entire evidence is left with a defi- intended the federal government to occupy exclusively; nite and firm conviction that a mistake has been commit- (3)state law stands as an obstacle to the accomplishment ted. and execution of the full purposes and objectives of g FRAUD -- ELEMENTS OF FRAUD OR Congress; (4) compliance with both state and federal DECEIT. --The essential elements of an action for fraud laws is impossible. or deceit are as follows: (1) a false representation of a 4. CONSTITUTIONAL LAW -- FEDERAL material fact; (2) knowledge that the representation is PREEMPTION -- IMPLIED PREEMPTION. -- If Con- false or that there is insufficient evidence upon which to gress has not explicitly preempted a state law action, it make the representation; (3) intent to induce action or may still be necessary to determine whether the action is inaction in reliance upon the representation; (4)justifi- preempted by implied preemption, which can occur able reliance on the representation; (5) damage suffered when (1) the scope of federal regulation is so pervasive as a result of the reliance. as to make reasonable the inference that Congress left no 9. FRAUD -- RULE REGARDING room for the state to act; (2) the state and federal laws REPRESENTATIONS RELATING TO FUTURE actually conflict; (3) compliance with state and federal EVENTS -- WHEN RULE IS INAPPLICABLE. -- An law is physically impossible; (4) the state law stands as action for fraud or deceit may not be predicated on repre- sentations relating solely to future events;this rule, how- Page 5 338 Ark.65, *;991 S.W.2d 579, **; 1999 Ark. LEXIS 311, *** ever, is inapplicable if the person making the representa- 15. EQUITY -- LACHES -- DOCTRINES OF tion or prediction knows it to be false at the time it is WAIVER & LACHES PROPERLY APPLIED TO made. APPELLANTS' CLAIMS. -- Where appellants sat on 10. FRAUD -- APPELLANTS FAILED TO their rights and where appellees relied on this acquies- ESTABLISH ELEMENTS NECESSARY FOR cence, the chancellor properly applied the doctrines of MISREPRESENTATION CLAIM -- DISMISSAL OF waiver and laches to appellants'claims. APPELLANTS' ACTION NOT CLEARLY 16. . COVENANTS -- RESTRICTIVE ERRONEOUS. -- Appellants failed to establish the ele- COVENANTS -- STRICT CONSTRUCTION. -- Re- ments necessary for a misrepresentation claim where strictive covenants are to be strictly construed against appellant having admitted in her testimony that appellee limitations upon the free use of property, and all doubts never definitively told her that he would not put addi- resolved in favor of the unfettered use of the land; if tional telecommunications towers on his land; where there are any doubt, they are to be construed strictly appellant's testimony regarding the use of her easement against those seeking to enforce them and liberally in by appellee for the erection of an additional smaller favor of freedom in use of the land;this rule of construc- tower demonstrated that appellee was not trying to mis- tion is based upon the repugnance of restrictions on the lead appellants about his possible future plans; and use of land to trade, commerce, recognized business pol- where the question whether appellee planned to erect icy, and common-law rights to use lands for all lawful more towers on his property was an assertion regarding purposes; where there is uncertainty in the language by future events; thus, the supreme court held that the chan- which a grantor in a deed attempts to restrict the use of cellor's dismissal of appellants' cause of action was not realty, freedom from restraint should be decreed; when clearly erroneous. the language of the restrictive covenant is clear and un- 11. WORDS & PHRASES -- WAIVER -- ambiguous, the parties will be confined to the meaning DEFINITION. -- Waiver is the voluntary abandonment of the language employed; it is improper to inquire into or surrender by a capable person of a right known to him the surrounding circumstances or the objects and pur- to exist, with the intent that he shall forever be deprived Poses of the restriction for aid in its construction. of its benefits, and it may occur when one, with full 17.NUISANCE--DEFINITION. --Nuisance is de- knowledge of the material facts, does something that is fined as conduct by one landowner that unreasonably inconsistent with the right or his intention to rely upon it. interferes with the use and enjoyment of the lands of 12. COVENANTS -- RESTRICTIVE another and includes conduct on property that disturbs COVENANTS -- RIGHT TO ENFORCE MAY BE the peaceful, quiet, and undisturbed use and enjoyment LOST BY LACHES OR ACQUIESCENCE. --The right of nearby property. to enforce a restrictive agreement may be lost by laches 18. NUISANCE -- PRIVATE OR PUBLIC -- or acquiescence, especially when one incurs expendi- EQUITY WILL ENJOIN. -- Equity will enjoin conduct tures. that culminates in a private or public nuisance where the 13. EQUITY -- LACHES -- BASIS OF resulting injury to the nearby property and residents is DOCTRINE. -- The doctrine of laches is based on a certain, substantial, and beyond speculation and conjec- number of equitable principles that are premised on some ture. detrimental change in position made in reliance upon the 19. NUISANCE -- WHAT CONSTITUTES. -- The action or inaction of the other party; it is based on the general rule is that to constitute a nuisance,the intrusion assumption that the party to whom laches is imputed has must result in physical harm, as distinguished from un- knowledge of his rights and the opportunity to assert founded fear of harm, which must be proven to be cer- them, that by reason of his delay some adverse party has tain, substantial, and beyond speculation and conjecture; good reason to believe those rights are worthless or have a landowner may make such use of his property as he been abandoned, and that because of a change of condi- chooses so long as he does not unlawfully or unreasona- tions during this delay it would be unjust to the latter to bly interfere with or harm his neighbor; it is only the permit him to assert them. unreasonable use or conduct by one landowner that re- 14. EQUITY -- LACHES -- DEMONSTRATION sults in unwarranted interference with his neighbor that OF PREJUDICE REQUIRED. --Laches requires a dem- constitutes a nuisance. onstration of prejudice to the party alleging it as a de- 20. COVENANTS -- RESTRICTIVE fense resulting from a plaintiffs delay in pursuing a COVENANTS -- CHANCELLOR DID NOT ERR IN claim. FINDING NO VIOLATION. -- Where the proposed telecommunications tower did not constitute a noxious, odorous, or offensive activity under the terms of the re- Page 6 338 Ark. 65, *;991 S.W.2d 579, **; 1999 Ark. LEXIS 311, *** strictive covenant in question, the chancellor did not err ruling on the motion to dismiss, finding that issues relat- in finding that the proposed tower did not violate any ing to the environmental effect of radio emissions were restrictive covenants. preempted by federal law, and ruling that no testimony 21. NUISANCE -- APPELLANTS FAILED TO would be allowed as to that allegation. Following that PROVIDE PROOF OF ACTUAL SUBSTANTIAL ruling the trial proceeded on the remaining issues, at the HARM -- CHANCELLOR DID NOT ERR IN conclusion of which the trial court entered a decree dis- missing appellants' complaint with prejudice. Appellants appellants failed to provide proof of actual substantial raise four points on appeal, and finding no error on the Part of the trial court,we affirm. harm that they would suffer as a result of the proposed tower the chancellor did not err when it found that the Appellants' fust point of appeal is that the trial court telecommunications tower was not a nuisance. erred in finding that the environmental [***3] effect of radio emissions had been preempted by Congress by COUNSEL: W. Marshall Prettyman, for appellants. adoption of the Federal Telecommunications Act of 1996, 47 U.S.C.A.J3 332 (FTA). We note that notwith- Law Office of Curtis E. Hogue, by: Curtis E. Hogue, for standing this ruling, appellants were allowed to present appellees Michael Smith and Judith Carol Smith. evidence relating to each of the remaining issues, includ- ing whether the construction of the tower constituted a Catlett, Yancey & Stodola, PLC, by: Mark Stodola and nuisance,whether its construction violated the terms of a James D. Rankin III, for appellee Southwestern Bell restrictive covenant, whether its construction constituted Mobile Systems,Inc. deceit because of a misrepresentation of future plans,and whether appellants' claims were barred by the doctrines JUDGES: RAY THORNTON,Justice. of waiver and laches. OPINION BY: RAY THORNTON [HN I] In reviewing a trial court's decision on a mo- tion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them OPINION in the light most favorable to [*71] the party who filed [*69] [**582] RAY THORNTON,Justice. the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d Appellees, Michael and Judith Smith, as well as all 552(1994). of the appellants,are property owners on West Mountain Federal Preemption in Washington County. Appellee, Southwestern Bell Mobile Systems, Inc. (Bell), is a local cellular telecom- From the time of McCulloch v. Maryland, 17 U.S. munications service provider. Since 1965 the Smiths 316, 4 Wheat. 316, 407, 4 L. Ed. 579 (1819), it has been have leased their land for towers for communication ser- accepted that [HN2] Congress has the authority to pre- vices. The property is subject to a restrictive covenant for empt state law. It is useful to restate the language of the the benefit of some of the appellants. The covenant pro- [**583] United States Constitution, which reads as fol- hibits any"noxious,odorous, [*70] or offensive trade or lows: activity." In 1997, Bell and the Smiths entered into.a lease allowing Bell to construct a telecommunications [HN3] This Constitution, and [***4] tower on the property belonging to the Smiths. the laws of the United States which shall Appellants commenced this action by filing a com- be made in pursuance thereof, and all plaint in the Washington County Chancery Court con- treaties made, or which shall be made, tending that the [***2] construction of the tower in their under the authority of the United States, shall be the supreme law of the land; and neighborhood would(1)violate restrictive covenants;(2) the judges in every state shall be bound constitute a nuisance; (3) lead to detrimental environ- or mental effects from radio frequency emissions; and (4) laws of any state to the contrary thereby, anything in the Constitution nnotwih- amount to a misrepresentation made by Michael Smith as standing. to his intended use of his land.Appellants sought injunc- tive relief and damages, and appellees filed a motion to dismiss,arguing that the allegations concerning the envi- U.S. Const. art. 6, cl. 2. ronmental.effects of the radio frequency emissions were preempted by federal law. In English v. General Electric Co., 496 U.S. 72, 110 The matter was set for trial on June 17, 1998, and L. Ed. 2d65, 110 S. Ct. 2270(1990),the Supreme Court, before witnesses were called, the chancellor issued a in holding that a state law claim for intentional infliction Page 7 338 Ark.65, *;991 S.W.2d579, **; 1999 Ark. LEXIS 311, *** of emotional distress was not preempted by the federal [HN7] The FTA explicitly preempts the state from law applicable to the circumstances of that case, pointed considering environmental effects of radio frequency out four circumstances for preemption. [HN4] A state emissions when making determinations as to the place- law is preempted: (1) when Congressional enactments ment, construction, or modification of telecommunica- explicitly preempt state law; (2)when state law regulates tion towers. Congress has considered the issue [***7] of conduct in a field that Congress intended the Federal preemption in this area and promulgated the following Government to occupy exclusively; (3) when state law language: [HN8] "Except as provided in this paragraph, stands as an obstacle to the accomplishment and execu- nothing in this chapter shall limit or affect the authority tion of the full purposes and objectives of Congress; and of a state or local government or instrumentality thereof (4) when compliance with both state and federal law is over [**584] decisions regarding the placement, con- impossible. English v. General Electric Co., supra. struction, and modification of personal wireless service If Congress has not explicitly preempted a state facilities." 47 U.SCA.J3 332 (c)(7)(A). Immediately fol- [***5] law action, it may still be necessary to determine lowing this general authority provision is a list of several if the action is preempted by implied preemption. [14N5] limitations to the broad grant of authority given to the Implied preemption can occur in the following circum- states. Among these limitations, [HN9] states are denied stances: (1) when the scope of federal regulation is so the ability to consider the environmental [*73] effects of pervasive as to make reasonable the inference that Con- radio frequency emissions when making local construc- gress left no room for the state to act; (2)when the state tion, placement, and modification decisions of telecom- and federal law actually conflict; (3) when compliance munications towers.47 U.S.C.A.J3 332(c)(7)(B)(iv). with state and federal law is physically impossible; (4) The United States Supreme Court has held that if when the state law stands as an obstacle to the accom- Congress has considered the question of preemption and plishment of the full objectives of Congress. Ciba-Geigy expressly addressed it within a statute, the states do not Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 [*72] need to consider the issue of preemption further. Specifi- (1992)(citing, Florida Lime & Avocado Growers, Inc. v. cally,the Court held that: Paul, 373 U.S. 132, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, [HN10] When Congress has considered 91 L. Ed. 1447, 67 S. Ct. 1146(1947). the issue of preemption and has included The statutory language of the Federal Telecommuni- in the enacted legislation a provision ex- plicitly..addressing that issue, and when cations Act of 1996 provides that the act "establishes that provision provides a "reliable [***8] national public policy in favor of reducing regulation and ium with re- cations congressional intent encouraging the rapid deployment of new telecommuni- indicIndic tstate authority, "there is need cations technologies."See Reno v. American Civil Liber- specteempt to infer congressional intent to pr ties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d state laws from the substantive preempt 874 (1997). Specifically, the language we are asked to stone"of the legislation. provi- interpret states: [HN6] "No state or local government [***6] or instrumentality thereof may regulate the placement, construction, and modification of personal Cipollone v. Liggett Group, Inc., 505 U.S. 504, 120 L. wireless service facilities on the basis of the environ- Ed. 2d 407, 112 S. Ct. 2608(1992)(citations omitted). mental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regula- It is clear that Congress has preempted consideration tions concerning such emissions." 47 U.S.C.A. J3 of the environmental effects of radio frequency emis- 332(c)(7)(B)(iv). sions in determining the location of towers; however, The House Conference Reports on this section of the appellants argue that this does not preempt private causes FTA offers the following insight into the legislative in- of action based upon the environmental effects of those same emissions. In Cipollone v. Liggett Group, Inc. su- tent of the drafters of J3 332. "The conferees intend sec- pra, the Supreme Court wrote "At least since Erie R. Co. tion 332(c)(7)(B)(iv) to prevent a state or local govem- v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 ment or its instrumentalities from basing the regulation (1938) we have recognized the phrase [HN I I] "state of the placement, construction, or modification of CMS law"to include common law as well as statutes and regu- facilities directly or indirectly on the environmental ef- lations." fects of radio frequency emissions if those facilities comply with the Commission's regulations adopted pur- We note that other jurisdictions have determined in suant to section 704(b)concerning such emissions." H.R. similar circumstances that federal preemption limits pri- Conf. Rep. No. 104-458, reprinted in 1996 U.S.C.C.A.N. vate common-law actions as well as state action. In 124,222. Broyde v. Gotham Tower, Inc., 13 F.3d 994 (6th Cir. Page 8 338 Ark.65, *;991 S.W.2d 579, **; 1999 Ark. LEXIS 311, *** 1994), the Sixth Circuit Court of Appeals determined port, we conclude that the language prohibiting state or that an action for nuisance, based upon allegations that local consideration of the environmental effects of radio [***9] radio signals exceeded federal standards, was frequency emissions is grounded on the same principles properly dismissed by the district court on the basis of of public policy to establish a uniform national frame- preemption by the Federal Communications Act. The work of cellular telephone communications. Sixth Circuit noted that the FCC clearly has exclusive Congress has carved out a narrow and well defined jurisdiction over technical matters associated with trans- [***11] area of telecommunications policy in which it mission of radio signals and agreed with the district court has exercised its constitutional authority to preempt state when it found that: and local laws, and has left substantial elements of zon- The consistent finding of preemption by ing and land-use matters to state and local control. How- all courts that have considered the interac- ever,we conclude that the trial court correctly found that tion of common law nuisance claims and Congress has exercised its authority under the Suprem- [*74] the Federal Communications Act. acy Clause of the Constitution to preempt consideration See Still v. Michaels, 791 F. Supp. 248 [*75] of the environmental effects of radio emissions by (D.Ariz. 1992)(nuisance action preempted the state. We further conclude that the trial court did not by Federal Communications Act); Still v. commit error by excluding testimony concerning the Michaels, 166 Ariz. 403, 803 P.2d 124 environmental effects of such emissions. (1990)(FCC has exclusive jurisdiction Claims based upon misrepresentation, nuisance, restric- over resolution of radio signal interfer- tive covenants, and the defense of laches or waiver. ence nuisance claims); Smith v. Calvary Educational Broadcasting Network, 783 The Smiths are engaged in radio communication S.W.2d 533 (Mo.Ct.App. 1990)(Federal services and lease their land for towers for communica- Communications Act preempts state nui- tion services. The first tower was erected on their prop- sance action based on radio signal inter- erty in 1965. That tower, a triangular metal lattice struc- ference with electrical appliances);Black- ture, was originally 140 feet tall but is presently seventy burn v. Doubleday Broadcasting Co., feet tall. It has a width of eighteen inches on each side. A Inc., 353 N.W.2d 550 (Minn. 1984) (radio second tower was erected in 1988, and was 190 feet in transmission nuisance claims under exclu- height. All of the appellants either built or purchased sive jurisdiction of FCC). their homes after the first tower was erected. [***12] A lease was entered into between the Broyde v. Gotham Tower, Inc., supra. The Court of Ap- Smiths and Bell in 1997 that allowed Bell to construct a peals [***10] then stated that with regard to the jurisdic- telecommunications tower on the property.The proposed tion of the FCC over radio frequency interference: tower would be 170 feet tall and supported by a three- Such matters shall not be regulated by legged base measuring seventeen feet between the legs. local or state law,nor shall radio transmit- The construction costs for the tower was an estimated $ ting apparatus be subject to local or state 630,000. Appellants were notified of the proposed tower regulation as part of any effort to resolve in February of 1997. an RFI complaint. The Conferees believe Appellants objected to the construction of the tower, that radio transmitter operators should not and, following the trial court's ruling excluding evidence be subject to fines, forfeitures, or other li- of the environmental effects of radio frequency emis- ability imposed by any local or state au- sions,a trial was held to consider whether the tower con- thority as a result of interference appear- stituted 4 nuisance or a violation of a restrictive covenant ing in home electronic equipment or sys- and whether Michael Smith had misrepresented certain tems. facts to the Wrights regarding his intended land use. Af- ter the close of the testimony and submission of briefs and suggested findings of fact and conclusions of law, [**585] Broyde v. Gotham Tower, Inc., supra. The the trial court entered a decree that dismissed appellants' Sixth Circuit finally stated that "given such explicit con- complaint with prejudice. gressional pronouncements,enforcement of the plaintiffs' state law nuisance action would frustrate the objectives [HN12] On appeal, we consider chancery cases de of the Act."Id. novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. While the extent of the federal preemption in the [HN13] A finding is clearly erroneous when, although case before us is based upon a different conference re- there is evidence [***13] to support it, the reviewing Page 9 338 Ark.65, *;991 S.W.2d 579, **; 1999 Ark. LEXIS 311, *** court on the entire evidence is left with a definite and 298 Ark. 195, 766 S.W.2d 424(1989) However, this rule firm conviction that [*76] a mistake has been commit- is inapplicable if the person making the representation or ted. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d prediction knows it to be false at the time it is made.Id. 724(1999). The trial court's dismissal was not clearly erroneous. For appellants' second point on appeal they contend Appellants failed to establish the elements necessary for . that the trial court erred when it dismissed appellants a misrepresentation claim. Mrs. Wright admitted in her Janet and Doyle Wright's misrepresentation claim against testimony that Mr. Smith never definitively told her that appellee Michael Smith. Appellant Janet Wright alleged he would not put additional towers on his land. More- that Michael Smith represented to her that he did not over, Mrs. Wright's testimony regarding the use of her intend to build additional towers on his property. Mrs. easement by Mr. Smith for the erection of an additional Wright testified at trial that "he [Michael Smith] said if smaller tower demonstrates that Mr. Smith was not try- he did anything he might put one other small tower there, ing to mislead the Wrights about his possible future but that this property was his grandfather's and that he plans. Additionally,whether[***16] Mr. Smith planned and his wife would build their home there." Mrs. Wright to erect more towers on his property is an assertion as to further testified that "I did not know there would be an- future events. Thus, we hold that the trial court did not other tower built on that property. I did not definitely err when it dismissed the Wrights'cause of action. know that. I was told in [**586] terms of maybes. That In their third point on appeal, appellants claim that he might put another tower up. I was given notice at the the trial court erred when it applied the doctrines of time I bought my property and started building my house waiver and laches to their case. [HN16] Waiver is the that there would likely be another tower built on the voluntary abandonment or surrender by a capable person Smith property." Finally, Mrs. Wright, discussing an easement granted to her by the Smiths, testified that "in of a right known to him to exist, with the intent that he [***14] the easement it states that Michael Smith,Darcy shall forever be deprived of its benefits,and it may occur Smith, and Judith Smith may place a guy wire in said When one,with full knowledge of the material facts,does easement if they deem it necessary for a radio transmis- something which is inconsistent with the right or his in- tention to rel sion tower. That was something that when he and I had y upon it. Smith v. Walt Bennett Ford, Inc., the initial discussion about it he said, 'I might put another 314 Ark. 591, 864 S.W.2d 817(1993). small tower someday.' And he said, 'I don't know where [HN17] The right to enforce a restrictive agreement it would be.'He said, 'If it needs to be on your easement, may be lost by laches or acquiescence, especially when is that okay?' I said, 'As long as it doesn't block us going one incurs expenditures. Baldischwiler v. Atkins, 315 in and out,that's fine."' Ark. 32, 864 S.W.2d 853 (1993). [HN 18] The doctrine of Michael Smith testified that he was asked the fol- laches is based on a number of equitable principles that lowing question during a deposition prior to trial 'Did are premised on some detrimental change in position you ever discuss with either of the Wrights any future made in reliance upon the action or inaction of the other plans you might have for the properly?' My answer was: party. Anadarko Petroleum v. Venable, 312 *rk. 330, 'I told her that someday I might build another tower up 850 S.W.2d [*78] 302 (1993). It is based [ 17] on there."' the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert At the close of the trial, the chancellor, relying on them,that by reason of his [**587] delay some adverse P.A.M. Transp. v. Ark. Blue Cross & Blue Shield, 315 party has good reason to believe those rights are worth- Ark. 234, 868 S.W.2d 33 (1993), dismissed appellants' less or have been abandoned, and that because of a claim finding that the representation pertained to future change of conditions during this delay it would be unjust events and as such could not constitute a misrepresenta- to the latter to permit him to assert them. Selfv. Self, 319 tion. [HN 14] The essential elements of an action for de- Ark. 632, 893 S.W 2d 775 (1995). [HN 19] Laches re- ceit are as follows: (1)a false representation of a material quires a demonstration of prejudice to the party alleging fact; (2) knowledge that the representation is false or it as a defense resulting from a plaintiffs delay in pursu- [***15] that there is insufficient [*77] evidence upon ing a claim. Swink v. Gin, 333 Ark. 400, 970 S.W..2d which to make the representation; (3) intent to induce 207(1998). action or inaction in reliance upon the representation;(4) The chancellor did not err b applying the defenses justifiable reliance on the representation;and(5)damage s' suffered as a result of the reliance. Golden Tee, Inc. v. of waiver and laches to appellants case. All of the appel- Venture Golf Schools, Inc., 333 Ark. 253, 969 S.W 2d lants purchased their homes after the erection of the first 625 (1998). [HN15] An action for fraud or deceit may tower on the Smiths's property. The two towers on the not be predicated on representations relating solely to Property were built in 1965 and 1988. The placement of future events. Delta School of Commerce, Inc. v. Wood, these two towers have never been challenged. Moreover, Page 10 338 Ark.65, *;991 S.W.2d 579,**; 1999 Ark. LEXIS 311, *** appellants have not challenged the placement of these and conjecture. It is well settled that[HN25] a landowner towers in the current case. The Smiths have used their may make such use of his property as he chooses so long property in the same manner, as the location of commu- as he does not unlawfully or unreasonably interfere with nication towers, for thirty years without protest. Relying or harm his neighbor. Miller v. Jasinski, 17 Ark. App. on the acquiescence [***18] of the landowners during 131, 705 S.W.2d 442 (1986). It is only the unreasonable the thirty previous years, appellees entered into a con- use or conduct by one landowner which results in unwar- tract for the construction of an additional tower valued at ranted [**588] interference with his neighbor which $ 630,000. Appellees would have been prejudiced if the constitutes a nuisance.Id. chancellor had granted appellants' injunction. Thus, be- The chancellor correctly found that the proposed cause appellants sat on their rights and because appellees tower did not violate the restrictive covenant nor was it a relied on this acquiescence, the trial court properly ap- plied the doctrines of waiver and laches to appellants' nuisance. The pertinent language from the restrictive claims. covenant is set forth in the deeds of the property owners in the neighborhood. The language in the covenant In their final point on appeal, appellants contend that states: "No noxious,odorous, or offensive trade or activ- the trial court's findings that the proposed tower were ity shall be permitted." Appellants contend that the neither a violation of the neighborhood restrictive cove- placement of the communications tower in their nants nor a nuisance was clearly erroneous. [HN20] Re- neighborhood would violate this restrictive covenant. strictive covenants are to be strictly construed against The chancellor found that "since a telecommunication limitations upon the free use of property, and all doubts [***21] tower has operated in the area in [*80] question resolved in favor of the unfettered use of the land. Case- without objection for more than 30 years and another for beer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 10 years, the drafters of the restrictive covenant did not (1970). In other words, if there are any doubts, they are consider communications towers to be noxious,odorous, to be construed strictly against those seeking to enforce or offensive; that those living in the neighborhood have them and liberally in favor of freedom in use of the land. not considered such towers to be noxious, odorous, or Id. This rule of construction is based upon the repug- offensive; and that those moving to the neighborhood fiance of restrictions on the use of land to trade, com- knowing that such towers were in operation did not con- merce, recognized business policy, [***19] and com- sider towers to be noxious,odorous,or offensive."These mon-law [*79] rights to use lands for all lawful pur- findings were not clearly erroneous. Because the pro- poses. Where there is uncertainty in the language by posed tower did not constitute a noxious, odorous, or which a grantor in a deed attempts to restrict the use of offensive activity, the chancellor did not err in his find- realty, freedom from restraint should be decreed. Id. We ing that the proposed tower did not violate any restrictive have also held that [HN21] when the language of the covenants. restrictive covenant is clear and unambiguous,the parties The chancellor was correct when he found that the will be confined to the meaning of the language em- proposed tower did not amount to a nuisance.Appellants ployed and that it is improper to inquire into the sur- failed to show any certain, substantial harm that is be- rounding circumstances or the objects and purposes of yond speculation or conjecture. They alleged that if the the restriction for aid in its construction. Casebeer v. proposed tower were erected the following harms would Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970). be suffered by the residents of the neighborhood: (1)the [HN22]Nuisance is defined as conduct by one land- tower would be aesthetically unpleasing;(2)an attractive owner that unreasonably interferes with the use and en- nuisance would result; (3) the tower would bring addi- joyment of the lands of another and includes conduct on tional workmen to the community [***22] and cause the property that disturbs the peaceful, quiet, and undis- safety of the residents to be compromised; and (4) the turbed use and enjoyment of nearby property. Southeast erection of the tower would cause a proliferation of tow- Ark. Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 ers in the community. The chancellor found, and the re= (1993). [HN23] Equity clearly will enjoin conduct that cord supports the finding,that all of the harms alleged by culminates in a private or public nuisance where the re- appellants are speculative and are not supported by sub- sulting injury to the nearby property and residents is cer- stantial evidence. Accordingly, we hold that because tain, substantial, and beyond speculation and conjecture. appellants failed to provide proof of actual substantial See Arkansas Release Guidance Foundation v. Needler, harm that they would suffer as a result of the proposed [***20] 252 Ark. 194, 477 S.W.2d 821 (1972). The gen- tower, the trial court did not err when it found that the eral rule is that [HN24] in order to constitute a nuisance, tower was not a nuisance. the intrusion must result in physical harm, as distin- Affirmed. guished from unfounded fear of harm, which must be proven to be certain, substantial, and beyond speculation Page 1 LexisiNexis LEXSEE NORMAN G. HILL,KATHERINE K.CONDON,and FIONA MANBY- JOHNSTON v.JOHN LEBRUN,JOSEPH LURIE,STEDMAN F.BRIGGS,JR., and JAMES BATES,JR,as they are Members of the TOWN OF UPTON ZONING BOARD OF APPEALS,and SPRINT SPECTRUM,L.P.,CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS,INDUSTRIAL COMMUNICATIONS& ELECTRONICS,INC.,and RICHARD KELLY and KATHLEEN KELLY Misc.Case No.279012 MASSACHUSETTS LAND COURT 12 LCR 46;2004 Mass. LCR LEXIS 7 February 16,2004,Decided HEADNOTES JUDGES: Karyn F. Scheier,Chief Justice Standing to Sue-Colocation on a Wireless Tower- OPINION BY: SCHEIER Health Impacts of Increased Radio Frequency Emis- sions-Property Value Diminishment OPINION SYLLABUS [*46] DECISION ALLOWING DEFENDANTS' [**I] A party in interest lacked standing to chal- MOTION TO DISMISS UNDER MASS. R. CIV. P. lenge an amendment to a 1974 variance that would allow 12(b)(1) colocation of antennas on a communications tower since the tower was already in existence when the plaintiffs purchased their abutting property and no economic im- 1 Defendants' motion was brought under both pacts were foreseeable since the new antennas would Mass. R. Civ. P. 12(6)(6)and 12(b)(1). replace early-generation versions that were much larger and more intrusive. [**2] In this action brought pursuant to G. L. c. 40A,Jf 17,and G.L.c.231A,Plaintiffs appeal a decision COUNSEL: John Powers, Esq., Greenwald Greenwald (2002 Decision) of the Town of Upton Zoning Board of & Powers.LLP for Plaintiff. Appeals (Board), which amended a variance decision previously issued by the Board in 1974(1974 Variance). Jeffrey Angley, Esq., Jeffrey J. Phillips& Associates for The 1974 Variance allowed MCI Telecommunications Defendant. Corporation (MCI)to erect and maintain a cell tower on land owned by Defendants Richard and Kathleen Kelly Danielle M. Andrews Long, Esq., Michael S. Giaimo, (Kellys). The 1974 Variance contained a condition that Esq., Robinson&Cole,LLP for Defendant. required the cell tower to remain under the operation and control of MCI. The 2002 Decision amended the 1974 Joel Bard, Esq., Patricia Cantor, Esq., Kathleen Con- Variance by deleting the MCI control requirement.Plain- nolly, Esq., Kopelman&Paige,P.C. for Defendant. tiffs allege the Board exceeded its authority, and seek to annul the 2002 Decision. The corporate Defendants, In- Wayne Dennison, Esq., Brown, Rudnick, Berlack, Is- dustrial Communications & Electronics, Inc., Sprint raels, LLP for Defendant. Spectrum, L. P., and Cellco Partnership d/b/a Verizon Wireless (sometimes hereinafter collectively referred to Page 2 12 LCR 46, *;2004 Mass.LCR LEXIS 7, ** as "Defendants") moved to dismiss Plaintiffs' appeal for ant [**5] to the relief here granted at any lack of subject matter jurisdiction. A hearing on the mo- time cease to be used for the purpose set tion to dismiss was held on September 19, 2002. In sup- forth in the petition and as above set forth, port of their motion. Defendants submitted an affidavit of or should the locus, and the microwave Thomas Lennon, Industrial's leasing [**3] manager. In station thereon, cease to be under the op- opposition, Plaintiffs submitted affidavits from Plaintiff eration and control of MCI Telecommuni- Hill and Stewart J. Maurer, Ph.D., an electrical engineer cations Corporation, then this variance specializing in "antennae, radio and power frequency shall terminate and said equipment build- electric and magnetic field measurements and mitiga- ing and tower shall be removed from said tion." locus." [*47] Defendants argue Plaintiffs have not alleged sufficient aggrievement to establish their standing, and the court,therefore, lacks subject matter jurisdiction over an appeal of the 2002 Decision. Subsequent to the hear- 3 For the purposes of their motion to dismiss, ing on the motion to dismiss,the complaint was amended Defendants accepted as true "all well plead and to permit the withdrawal of Plaintiff Katherine K. Con- material allegations of fact contained in the com- don. The other two Plaintiffs remain. Since both Plain- plaint." See Beeby v. Pucciarelli, 387 Mass. 589 tiffs made identical allegations regarding their aggrieve- (1982). ment, and only Mr. Hill's property directly abuts the Kel- 4 In 1973 the Kellys and MCI entered into a lys' property,this decision focuses on Mr. Hill's standing y lease agreement for asixty-foot by sixty-foot area to determine whether either of the Plaintiffs has suffi- con the Kelly property,on which the Facility is lo- ient standing to withstand a motion to dismiss. cated. 2 Mr. Hill is an abutter. Ms. Manby-Johnston, 5 As stated in the 1974 Variance, microwave while not an abutter to the Kellys' property, may signals were 'the prime medium or the medium nonetheless be aa m-interest under G. L. c. used for initial transmission to local teletype and p radiotelephone transmitters and circuits, between 40A J3 11,but that is not clear from the record. Boston and New York." [**4] Based on the pleadings and the affidavits, and the In 1986, MCI filed a petition to [**6] amend the numerous documents attached thereto, this court finds 1974 Variance by increasing the height of the Tower that Plaintiffs do not have standing, based on the follow- from three hundred feet to three hundred twenty feet. In a ing pertinent facts. decision dated July 7, 1986, the Board unanimously voted to grant the amendment to the 1974 Variance. The Norman Hill resides at 12 Glenview Street in Upton(Hill Tower's height is currently three hundred twenty feet, as Property), which is located in an Agricultural-Residential approved in 1986. Zoning District. The Hill Property abuts a parcel of land On July 31, 1999, Industrial Communications & owned by the Kellys, upon which a three hundred Electronics, Inc. (Industrial) purchased the Facility twenty-foot telecommunications tower (Tower) and a through an Assumption of Lease Agreement. MCI Ion- one-story equipment building are located. (Hereinafter, tinued to use the Facility to transmit microwave signals the Tower and the equipment building together are re- through a two-way repeater located thereon. ferred to as the"Facility.")` On or about March 12, 2001, Industrial (on its own The Board granted the 1974 Variance to the Kellys behalf and on behalf of Verizon and Sprint PCS)submit- and MCI to construct the Facility providing for the con- ted to the Upton Planning Board an application for site struction of the receiving and transmitting antennae on plan review for the installation and co-location of addi- the Tower. The Tower's purpose, as articulated in the tional antennae on the Tower to serve its customers. The 1974 Variance, was to facilitate the "transmission of Planning Board issued a written decision denying Indus- commercial and technical data and other communica- trial's application for site plan review on November 13, tions by teletype and radio-telephone, to users or sub- 2001,citing primarily the terms of Condition 3. scribers in the area between Boston and New York." 5 In the 1974 Variance, the Board set forth the following 6 Defendants appealed the Planning Board's de- condition(Condition 3): cision to the Land Court (Misc. Case No. 276789)on December 5,2001. "Should the equipment building and tower which are to be constructed pursu- Page 3 12 LCR 46, *;2004 Mass. LCR LEXIS 7, ** [**7] In addition to its appeal of the Planning (b)(6), but a defendant may challenge a plaintiffs stand- Board decision, Industrial filed petitions with the Board ing to raise a claim by bringing a motion to dismiss un- on December 14, 2001, appealing the Planning Board's der Mass. R Civ. P. 12 (b)(1), as was done here. Ginther denial of its application for site plan review. In its peti- v. Commissioner of Ins., 427 Mass. 319, 320 (1998). tion, Industrial argued that the requirement that MCI When considering a 12(b)(1)motion,the court may con- continue to control the Tower as set forth in Condition 3 sider materials beyond the pleadings. In this case, such was illegal and unenforceable. It also argued that the matters include the affidavits submitted by both parties. Facility continued to be used for the purposes set forth in Based upon the parties' submissions, oral argument, and the 1974 Variance. Industrial asked the Board to remove the pleadings,Plaintiffs'complaint must be dismissed. Condition 3 from the 1974 Variance because its terms are void under current State law, and affirm that the Fa- "A court has jurisdiction to consider a zoning appeal cility was being used for purposes consistent with the only if it has been brought by a person with 'standing,' 1974 Variance. that is,by a person who has been'aggrieved'by a board's By letter dated January 2,2002, Plaintiffs received a decision." Watros v. Greater Lynn Mental Health & Re- Notice of a Hearing from the Board, stating that "Indus- tardation Assn, Inc., 421 Mass. 106, 107 (1995). Thus,. trial Communications & Electronics, Inc. will appeal the standing is an issue of subject matter jurisdiction. See denial of a Site Plan by the Planning Board," and that Planning Bd. of Marshfield v. Zoning Bd. of Appeals of "Sprint Spectrum, L.P./Cellco Partnership d/b/a Verizon Pembroke, 427 Mass. 699, 703 (1998). Wireless will appeal the Planning Board's decision deny- Under G. L. c. 40A,f3 11 [**10] (Section 11), certain ing a site plan review. They will also appeal the failure persons are entitled to notice of board hearings and are of the Building Inspector to issue a decision regarding presumed to have standing as aggrieved parties. See the site plan application."' Watros, 421 Mass. at 111.According to Section 11, "par- ties in interest" entitled to notice of a hearing include 7 Plaintiff Hill also claims that the notice of the "the petitioner,abutters,owners of land directly opposite hearing was improper. This court does not reach on any public or private street or way,and abutters to the this issue because none of the Plaintiffs have abutters within three hundred feet of the property line of standing to bring the instant appeal. the petitioner ..." As the owner of a lot that abuts the [**8] A public hearing, at which Plaintiffs were property upon which the Facility is located, Plaintiff Hill present, was held on January 30, 2002, at which the is a party in interest and is entitled to a presumption of Board determined that it did not have jurisdiction to hear standing. Such a presumption, however, is rebuttable. an appeal from the Planning Board's decision to deny site See Marashlian v. Zoning Bd. of Appeals of Newbury- plan review. The Board however did find that it had ju- port, 421 Mass. 719, 721 (1996). "The presumption re- risdiction to consider Industrial's request that the Board cedes when a defendant challenges the plaintiffs status amend the 1974 Variance. Plaintiffs objected to the as an aggrieved person and offers evidence supporting Board considering Industrial's request that the Board his or her challenge." Watros, 421 Mass. at 111 (empha- amend the 1974 Variance by deleting Condition 3. sis in original). The Board, in the 2002 Decision filed with the Town This court finds and rules that the facts established by Clerk on February 7, 2002, amended the 1974 Variance Defendants, as set forth below,adequately rebut Plaintiff by deleting Condition 3, as requested, stating that, con- Hill's presumption of standing as an aggrieved person. ditions put on the variance were, in fact, inappropriate See Bell v. Zoning Bd. of Appeals of Gloucester, 429 and not legal. This amended variance would allow for Mass. 551, SS4 (1999). [**11] Consequently, the court continued operation of the tower,regardless of its owner- must determine the issue. of standing based on all the ship..."Further,the Board determined"that the proposed evidence presented. See Marashlian, 421 Mass. at 721; use is consistent with the original approved use." Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. *** 372, 376 (1988). When the presumption of standing re- cedes, a plaintiff bears the burden of setting forth "credi- [*48] Defendants filed their Motion to Dismiss under ble evidence to substantiate his allegations" that he has both Mass. R. Civ. P. 12 (b)(6), and 12 (b) (1), alleging suffered some infringement of his legal rights. See this court lacks subject matter jurisdiction to hear Plain- Marashlian, 421 Mass. at 721. The injury must be more tiffs'appeal because none of the Plaintiffs is an aggrieved than speculative. See Id. "Individual ... property owners party within the meaning of[**9] G. L. c. 40A,J3 17, acquire standing by asserting a plausible claim of a defi- and therefore they lack standing.Plaintiffs'lack of stand- nite violation of a private right, a private property inter- ing is often raised by motion under Mass. R. Civ. P. 12 est, or a private legal interest." Harvard Square Defense Page 4 12 LCR 46, *;2004 Mass.LCR LEXIS 7, ** Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. way, where the Upton Bylaw seeks to minimize the vis- Ct. 491, 492-93 (1989). ual impacts of wireless service facilities. The Upton By- law is not as restrictive as the Plymouth Bylaw in that it In the instant action, Plaintiff Hill identifies two harms allows for some visual detraction from the neighborhood Plaintiffs would suffer if the 2002 Decision is upheld. surrounding a proposed cell tower,so long as that detrac- Plaintiff Hill claims that the 2002 Decision will lead to a tion is minimized. diminution of the value of the Hill Property and also will Defendants have convincingly established that the pose health risks to the surrounding neighborhood. new antennae on the Tower are visually less intrusive 8 Plaintiff Hill also claims that he knew about than were the original large dishes they replace. Defen- Condition 3 when he purchased his home and re- dants' affidavits show that three twelve foot microwave lied on the eventuality that the Tower's technol- dishes and three ten foot microwave dishes that were ogy would become obsolete or MCI would relin- stacked within the top forty-five feet of the Tower were quish control over the Tower, leading to the re- removed and replaced with smaller antennae such as moval of the Facility. Plaintiff Hill's attempt to whip, smaller dish, [**14] and panel antennae to be establish standing through this argument is highly spread out over a larger area of the Tower rather than speculative. In addition,as Defendants note,vari- concentrated toward the top third of the Tower. The re- ances cannot be conditioned upon ownership of cord also includes pictures of the Tower taken at inter- land because the criteria for variances as set forth vals during the last several years which confirm Defen- in G. L. c. 40A,f3 10, relate to property and not to dants'allegations. applicants for relief. Huntington v. Zoning Bd. of [*49] Furthermore, Plaintiff Hill's argument that Appeals of Hadley, 12 Mass. App. Ct. 710, 715- the Hill Property will be devalued as a result of the 2002 16(1981). Decision fails because he purchased the property ap- proximately twelve years after the Tower was in exis- [**12] In support of their claims that the Tower will tence and operational. Any diminution in property value detract from the visual character and quality of the that is related to the proximity of the Hill Property to the neighborhood leading to a diminution of property values, Facility would already have been factored into the pur- Plaintiffs cite Monks v. Zoning Bd. of Appeals of Ply- chase price of the Hill Property before Plaintiff Hill pur- mouth, 37 Mass. App. Ct. 685 (1994). Monks involves chased it in 1986. the proposed construction of a telecommunications tower Because the Tower already existed when Plaintiff in the plaintiffs neighborhood.The Monks court vacated Hill purchased the Hill Property, in order for his legal the grant of a special permit to build the telecommunica- interests to be infringed by the effects of the 2002 Deci- tions tower. The Appeals Court ruled that the proposed sion, he must credibly allege some effect from the 2002 tower would violate specific rights and interests of the Decision itself which causes his aggrievement in order Monks plaintiff that were within the scope of protection for him to have standing.The Board's decision to amend contemplated by the Town of Plymouth Bylaw govern- the 1974 Variance by removing Condition 3 does noth- ing the issuance of special permits for cell tower use. ing to increase the height, size,or footprint of the Tower, Monks is not authority for Plaintiffs' standing in this ac- and in fact, likely [**15] reduces the visual impact by tion because the Bylaw at issue in Monks was broader allowing Industrial to replace the older, larger dishes, than the Upton Bylaw, in that the former required that a with smaller less intrusive antennae.Any claims Plaintiff "proposed structure will not in any way detract from the Hill has raised that his property values will be adversely visual character or quality of the adjacent buildings, the affected by the 2002 Decision are speculative at best,are neighborhood or the town as a whole." Monks, 37 Mass. wholly unsupported by direct facts, and are contradicted App. Ct. at 687(emphasis added). by the facts regarding the practical effect of the amend- The Monks court relied on the protective language ment,which are apparent from the record.' [**13] of the Plymouth Bylaw in finding that the Monks plaintiff had standing by virtue of the negative visual 9 Neither Plaintiff offered any evidence in the effect the proposed tower would have on his property. form of a real estate appraisal or affidavit of a real estate expert to establish that the 2002 Deci- By contrast, Section XVI of the Upton Bylaw states: "it is the express purpose of this Bylaw to minimize the vis- ual and environmental impacts of personal wireless ser- Plaintiffs' second argument regarding their ag- vice facilities." The difference in these two Bylaws is grievement is that the radio frequency emissions gener- that the Bylaw in Monks prohibited uses that detracted ated by the Facility pose a health hazard. Under the facts from the visual character of the neighborhood in any presented by this case, however, Plaintiffs' health con- Page 5 12 LCR 46, *;2004 Mass.LCR LEXIS 7, ** cerns cannot confer standing.The Federal Telecommuni- report establishes that the radio frequency levels will be cations Act (TCA) provides, "no State or local govern- well below the Federal standards set by the Federal ment or instrumentality thereof may regulate the place- Communications Commission, effectively barring the ment, construction, and modification [**16] of personal Board from considering the health concerns raised wireless service facilities on the basis of the environ- [**17] (but unsubstantiated) by Plaintiffs. Without any mental effects of radio frequency emissions to the extent evidence rebutting Defendants' study, Plaintiffs' claim that such facilities comply with the[Federal Communica- that the.Facility poses a health hazard is not only com- tions] Commission's regulations concerning such emis- pletely speculative and unsupported by direct facts, but sions." 47 U.S.C. J3 332(c)(7)(B)(iv) (emphasis added.) beyond the scope of the Board's consideration due to the See also Roberts v. Southwestern Bell Mobile Systems, provisions of the TCA. Accordingly, Plaintiffs are pre- Inc., 429 Mass. 478, 482(1999). cluded from relying on health concerns to establish their standing. A study compiled by a radio frequency specialist, sub- Based on the foregoing,the court finds and rules that mitted to the Board and part of the record before the court, establishes that there would be "a maximum po- Plaintiffs have failed to demonstrate that they .have tential increase of about 0.5% of the current State and standing to prosecute their appeal. Because Plaintiffs Federal [Maximum Permissible Exposures] above ambi- lack standing, this court lacks subject matter jurisdiction ent [radio frequency] levels from the existing and future reach the merits of this case. The complaint shall be di proposed personal wireless services antennae for ground dsmissed. levels. This means that there could be 200 similar instal- Judgment to enter accordingly. lations at this location, and still be within State and Fed- eral limits for [radio frequency] exposure." Defendants' Page 1 x LeNIt, LEXSEE Cheryl D.Allison v. Barberry Homes,Inc. 98-2935 SUPERIOR COURT OF MASSACHUSETTS,AT MIDDLESEX 2000 Mass.Super. LEXIS 323 July 26,2000,Decided August 1,2000,Filed DISPOSITION: [*I] Defendant's motion for sum- mental Protection and did not constitute a nuisance. mary judgment ALLOWED and judgment entered in Plaintiff failed to object to the wetlands before the ap- favor of defendant Barberry Homes, Inc. peals on the issue were final. CASE SUMMARY: LexisNexis(R)Headnotes PROCEDURAL POSTURE: Defendant developer filed a motion for summary judgment with the Superior Real Property Law> Torts>Nuisance>General Over- Court of Massachusetts,at Middlesex in a nuisance cause view of action brought against defendant by plaintiff land- [HN I] The term nuisance as a ground of liability usually owner. results in confusion and frequently is a method of avoid- ing precision in analysis. OVERVIEW: Plaintiff landowner brought a nuisance cause of action against defendant developer after defen- dant constructed a wetland within a 100 feet of plaintiffs Real Property Law> Torts>Nuisance>General Over- property, thereby, subjecting a 16,000 square foot por- view tion of plaintiffs property to wetland regulations. The Torts>Damages>Compensatory Damages>Property defendant moved for summary judgment. The court Damage>General Overview granted defendant's motion for summary judgment. De- [HN2] The tort of nuisance has been predicated on such fendant's construction of the wetland was done in com- things as the emission of noise, odors, fumes, and/or vi- pliance with an order from the Department of Environ- brations. mental Protection (DEP). Activity expressly authorized by the government was not actionable even if it would have constituted a nuisance absent the authorization. Real Property Law> Torts>Nuisance>General Over- Under the terms of DEP's order, construction of the wet- view land could not have commenced until all appeals were Real Property Law> Torts> Trespass to Real Property final. The DEP order went through its own agency pro- [HN3] Nuisance has sometimes taken on aspects of tres- ceedings and appeals, as well as two and a half years of pass,where defendant's conduct has caused some objects litigation in the court. At no time during the proceedings to come on to plaintiffs'property. did plaintiff seek to intervene to voice her objections to the order. Real Property Law> Torts>General Overview OUTCOME: Motion granted. Defendant developer's Real Property Law > Zoning & Land Use > Contpre- construction of a wetland near plaintiff landowner's hensive Plans property was authorized by the Department of Environ- Page 2 2000 Mass. Super. LEXIS 323, Transportation Law >Air Transportation >Airspace> tion statutes and regulations. The Commission rejected Nuisance the Trust's proposal, whereupon the Trust appealed the [HN4] Where the government has expressly authorized matter to the Department of Environmental Protection the challenged activity or conduct, it is not actionable (DEP). even if it would, absent such authorization, constitute a While the matter was pending before DEP, the Trust nuisance. modified the proposal to include the replication of wet- lands elsewhere within the subdivision in exchange for Real Property Law > Zoning & Land Use > State & the wetlands that would be lost due to filling. On March Regional Planning 3, 1992,DEP approved that modified proposal by issuing [HN5] The manner in which a business or activity which a Superseding Order of Conditions. The Order permitted has been legislatively sanctioned may be conducted is the filling of certain wetlands on the property on the not without limitations. Rather, it is subject always to the condition that the owner construct two areas of replicated qualification that the business must be carried on without Wetlands, one on the boundary abutting Allison's prop- negligence or unnecessary disturbance of the rights of erty and the other approximately 90 feet from Allison's others. property. The requirement of replicated wetlands was [*3] one of the "special conditions" included in the Or- JUDGES: Martha B. Sosman Justice of the Superior der, which required that the work "shall conform" to the Court. plans that specified the nature and location of the replica- tion. OPINION BY: Martha B. Sosman The"General Conditions" of the Order provided that the Order "does not grant any property rights or any ex- OPINION clusive privileges; it does not authorize any injury to MEMORANDUM OF DECISION AND ORDER Private property or invasion of private rights." The Gen- ON DEFENDANT'S MOTION FOR SUMMARY eral Conditions also provided that the work authorized JUDGMENT was to be completed within three years, but that "no work shall be undertaken until all administrative appeal Plaintiff Cheryl Allison has brought the present ac- periods from this Order have elapsed or, if such an ap- tion alleging that defendant's replication of wetlands on peal has been filed, until all proceedings before the De- adjacent property constitutes a nuisance because it will partment have been completed." However, in its "Special have the effect of subjecting a portion of plaintiffs prop- Conditions," the Order provided that "no work shall erty to environmental regulation. Defendant has moved commence on site until all appeal periods have elapsed for summary judgment on the ground that its replication and this Superseding Order of Conditions has been re- of the wetlands pursuant to a Department of Environ- corded with the registry of deeds and the Department mental Protection Superseding Order of Conditions can- formally notified via the form provided at the end of this not, as a matter of law, be deemed a nuisance. For the Order." following reasons, defendant's motion for summary judgment is ALLOWED. Upon completion of the work, the owner was to submit a request for issuance of a Certificate of Compli- Facts ance. However, in the Special Conditions, the Order Plaintiff Cheryl Allison is the owner of a single- stated that the wetland replication [*4] work was to be family home on approximately 44,935 square feet of land completed prior to any request for compliance,that DEP located at 146 Old Lancaster Road in Sudbury. Adjacent would not issue a certificate of compliance without the to Allison's home is a subdivision known as Green Hill replication work being done, and that compliance would Estates, consisting of six house lots. Green Hill Estates not be considered complete "until after the passage of at least two full growing seasons." was previously owned by the Trustees of The Clark Fam- ily Trust (later referred [*2] to as the Sudbury Realty The Sudbury Conservation Commission filed an Trust) and is presently owned by defendant Barberry administrative appeal of the Order within DEP. That Homes,Inc. appeal was dismissed on September 9, 1993. On Sep- Back in 1986, the Trust applied to the Sudbury Con- tember 24, 1993, the Commission filed a motion for re- consideration. That motion was denied on October 29, servation Commission for approval of its proposed de- 1993. On November 26 1993 the Commission filed an velopment of the six lots. The Trust's plans had included action in Superior Court challenging DEP's issuance of filling of some bordering vegetated wetland located on the Superseding Order. That appeal was dismissed as the subdivision property, and the project was therefore untimely filed, whereupon the Commission appealed the subject to state and local review under wetlands protec- Page 3 2000 Mass. Super. LEXIS 323, matter to the Appeals Court. On March 13, 1996, the first obtaining permission from the Town's Conservation Appeals Court affirmed the Superior Court's dismissal of Commission, and she contends that the applicability of the appeal, at which point all appeals of the Superseding those requirements interferes with her use of the property Order were exhausted. and decreases [*7] its value. Since Barberry Homes was The Trust proceeded to apply for a Water Quality the creator of the nearby wetlands that now bring her Certification for the project.After a site visit by DEP and property within the ambit of wetlands regulation, she the Commission on November 20, 1996, DEP issued the contends that Barberry Homes is liable for creating a nuisance. required Certification on January 2, 1997. On October 2, 1997, the Trust filed the Superseding Order [*5] of [FIN 1] "The term 'nuisance' as a ground of liability Conditions with the Middlesex Registry of Deeds. Work usually results in confusion and frequently is a method of began on the project immediately thereafter. On October avoiding precision in analysis." Delano v. Mother's Su- 15, 1997, defendant Barberry Homes, Inc. purchased the per Market, Inc., 340 Mass. 293, 297, 163 N.E.2d 920 subdivision property from the Trust. (1960). Barberry Homes completed the wetlands replication There is perhaps no more impenetrable jungle in the work during the summer and fall of 1998. On January entire law than that which surrounds the word "nui- 15, 1999, Barberry Homes' engineer notified DEP that sance." It has meant all things to all people,and has been the work was complete, but requested a two-year exten- applied indiscriminately to everything from an alarming sion so as to allow for the two-years' growth that was advertisement to a cockroach baked in a pie. There is necessary to obtain the required certificate of compli- general agreement that it is incapable of any exact or ance. By letter dated March 29, 1999, a Section Chief in comprehensive definition. Few terms have afforded so DEP's Northeast Regional Office took the position that, excellent an illustration of the familiar tendency of the unless an injunction had been entered by the court pre- courts to seize upon a catchword as a substitute for any venting the work from going forward, the time for per- analysis of a problem; the defendant's interference with forming the work began on October 29, 1993, the date the plaintiffs interests is characterized as a "nuisance," that all administrative appeals had been terminated. The and there is nothing more to be said. Section Chief opined that, absent such an injunction or a Prosser & Keeton, Law of Torts, 5th Ed. (1984), 6 prior extension, the Order had expired on October 29, 86,p.616-17 (citations omitted). Plaintiffs [*8] resort to 1996 and therefore no additional work could be done a theory of"nuisance" as a means of recovery against a without filing a new application. On June 2, 1999 and neighbor for the burdens imposed by state and local envi- again on September 3, 1999, Barberry Homes' attorney ronmental regulations is a novel extension of the already wrote to DEP, citing the statute(G.L.c. 131,J340[*6] ) prohibiting work from going forward until "all appeals confused jurisprudence surrounding that tort. periods have elapsed" and noting that the multiple ap- In all other nuisance cases, the defendant's conduct peals of the Order had not been exhausted until March has itself been the source of some unpleasant sensation to 1996. The attorney again asked that the Order be ex- persons on plaintiffs property or has done physical dam- tended to allow for the two-year monitoring period(not- age to plaintiffs property. [HN2] The tort of nuisance ing that all the underlying replication work had been has been predicated on such things as the emission of completed).There was no further response from DEP. noise, odors, fumes, and/or vibrations. See Malm v. Du- The presence of the replicated wetlands on Bar- brey, 325 Mass: 63, 88 N.E.2d 900 (1949) (noisy freight berry's property makes a portion (some 16,000 square terminal); Pendoley v. Ferreira, 345 Mass. 309, 187 feet) of plaintiff Allison's property subject to state and N.E.2d 142 (1963) (smell from a piggery); Proulx v. local wetlands restrictions, as that portion of her property Basbanes, 354 Mass. 559, 238 N.E.2d 531 (1968)(noise, is now within 100 feet of a protected wetlands resource fumes and vibration from laundry). [HN3] Nuisance has also sometimes taken on aspects of trespass, where de- area. fendant's conduct has caused some object(s) to come on Discussion to plaintiffs property. See Maynard v. The-Carey Con- struction Co., 302 Mass. 530, 19 N.E.2d 304 (1939) 1.Nuisance (cockroach infestation coming from abandoned site); Plaintiff Allison contends that Barberry Homes' Hennessy v. Boston, 265 Mass. 559, 164 N.E. 470(1929) placement of wetlands near her property constitutes a [*9] (baseballs from playground); Kurtigian v. Worces- common-law nuisance, as it subjects her property to re- ter, 348 Mass. 284, 203 N.E2d 692 (1965) (limb from strictions and requirements for the preservation of wet- dead tree). lands. Specifically, she cannot engage in certain activi- Here,there is nothing noxious,unpleasant or damag- ties within 100 feet of those replicated wetlands without ing about the replicated wetlands on Barberry Homes' 2000 Mass. Super. LEXIS 323, Page 4 property--they emit no noise, odors, fumes, dust, dirt, (although license to do a particular activity precludes an bright lights, flying objects, etc. The sole "interference" action in nuisance based on that activity, zoning regula- with plaintiffs property stems from government regula- tion is not the equivalent of a license). tion that is designed to preserve wetlands. Ironically, it is the very fact that wetlands are a precious resource--nota Here, DEP expressly authorized the creation of the "nuisance"--that has led state and local authorities to two areas of replicated wetlands in the precise location protect them. Plaintiff can point to no case where a the- that Allison now wishes to challenge as a "nuisance." ory of nuisance has been based on the presence of a de- Allison points to [*12] no deviation from the specifica- sirable resource that subjects plaintiffs property to some tions set in the Superseding Order of Conditions, no de- restriction so as to preserve that resource, and this court viation in the location or size of the wetlands, and no is reluctant to subject persons to liability for "nuisance" form of nuisance from the construction activity involved merely because they construct or maintain some form of in creating the wetlands. Where Barberry Homes has desirable resource that deserves protection. (For exam- done only that which its license permits,the above cases ple,the presence of some historic site or historic building hold that Barberry Homes can not be liable for nuisance, may lead to some restrictions on neighboring property so even if the construction of the wetlands without such a as to preserve or enhance the surrounding area, but one permit would be an actionable nuisance. would not characterize the preservation of[*10] such a Allison seeks to avoid summary judgment on this is- historic site as an actionable "nuisance.") Here, it is the sue by arguing that the actual placement of the wetlands very fact that wetlands are of great environmental value was proposed by the Trust(Barberry Homes'predecessor that has led to restrictions so as to protect them. Those in interest), that DEP merely adopted that proposed restrictions do not transform desirable wetlands into an placement,and that the placement itself was not"reason- actionable "nuisance." Plaintiff points to no case law able" because there were other alternative locations for (from Massachusetts or any other jurisdiction) that the wetlands replication that would not have placed them stretches the law of nuisance to such facts,and this court so close to her own property. In making this argument, is unwilling to confound further the already amorphous Allison relies on the following language from Hub Thea- concept of"nuisance" in the absence of appellate guid- tres: ante. [HN5] The manner in which a business or activity 2.Government license which has been legislatively sanctioned may be con- Even assuming that Allison's theory of nuisance ducted, however, is not without limitations. Rather, it is were otherwise viable, Barberry Homes rightly points subject always to the qualification that the business out that its replication of wetlands in the two locations must be carried on without[*13] negligence or unneces- near Allison's property was done pursuant to the exact sary disturbance of the rights of others." The plaintiffs have not alleged that the Authority has been negligent in specifications set forth in DEP's Superseding Order of its activities at Logan ss that such activities have been Conditions. [HN4] Where the government has expressly authorized the challenged activity or conduct, it is not unreasonable or unnecessary. actionable even if it would, absent such authorization, 370 Mass. at 156, quoting Sawyer v. Davis, 136 constitute a nuisance. See Hub Theatres, Inc. v. Massa- Mass. 239, 242 (1884). Allison argues that the above- chusetts Port Authority, 370 Mass. 153, 156, 346 N.E.2d quoted language allows her to contest the "reasonable- 371 (1976) (where expansion of airport was authorized ness" and the "necessity" of the placement of the wet- by legislature, planes flying out [*Il] of that airport lands replication, notwithstanding DEP's approval of that were not an actionable nuisance); Czapski v. Sun Oil Co., placement in the Superseding Order of Conditions. 303 Mass. 186, 21 N.E.2d 230(1939) (where gas station had a license, "plaintiff cannot restrain as a nuisance the Allison's argument misapplies the principle dis- doing in a reasonable and careful manner of the very act cussed in Hub Theatres. A license to conduct an activity licensed"); Strachan v. Beacon Oil Co., 251 Mass. 479, (e.g., to fly airplanes out of a particular airport) is not a 487, 146 N.E. 787 (1925) ("if the licensee has complied license to conduct that activity in a negligent manner or in all respects with the terms, what he does thereunder in a manner that unnecessarily disturbs neighbors' inter- cannot be considered a nuisance or be restrained, even if ests. That limitation, however, does not mean that dis- without such licenses the acts done would be a nui- gruntled neighbors may,under a nuisance theory, reopen Bance"); Sawyer v. Davis, 136 Mass. 239, 241-42 (1884) the underlying agency proceedings that led to the issu- (where municipal ordinance allowed ringing of factory ante of the license to see whether, with hindsight, the bell, the ringing that had previously been found anui- license terms could have been crafted differently. Noth- sance was no longer actionable). Compare Marshall v. ing in Hub Theatres allowed plaintiffs to review, under Holbrook 276 Mass. 341, 346-47, 177 N.E. 504 (1931) the rubric [*14] of a common-law claim for nuisance, whether the authorizing body failed to consider other Page 5 2000 Mass. Super. LEXIS 323, alternatives for the airport, or whether the airport itself for her do bear, it is equally unreasonable to in- had failed to put forth some different proposal that would flict such a burden on Barberry Homes, particu- have done less harm to plaintiffs' interests. Challenges to larly when Barberry Homes had no role in pro- the wisdom or propriety of an agency's decision must be posing the wetlands location that DEP approved brought before the agency and addressed in any judicial- back in 1992. review of the agency's decision. The law of nuisance is [*16] Allison also argues that the Superseding Or- not a mechanism for disturbing an agency decision that der does not protect Barberry Homes because of the Or- has long since become final, and nothing in Hub Thea- der's provision that it"does not grant any property rights" tres suggests otherwise. ' and "does not authorize any injury to private property or 1 It would be particularly problematic to allow invasion of private rights." That statement in the Order's such a misuse of the law of nuisance in the pre- General Conditions does not take away from the fact that sent case. The DEP Order went through not only the Order permitted the owner to construct the replicated its own protracted agency proceedings and ap- Wetlands in the precise location that Allison now chal- peals, but also through two and a half years of lenges. Rather, that statement is designed to prevent any litigation in court. At no time during those pro- claim that the Order authorized some form of trespass or ceedings, appeals and litigation did Allison seek Physical damage to neighboring property.The Order was to intervene or otherwise voice the objections she a license to do the project, but it did not grant the owner now seeks to raise. In using the law of nuisance any easement, right of access, etc. onto anyone else's to try and litigate the issue of whether there were Property. For example, if Barberry Homes' construction other alternative locations for the replicated wet- activities had trespassed on Allison's property, or had lands that DEP should have considered,Allison is created excessive noise, dust, dirt, odors, or fumes,noth- now seeking to reopen and relitigate an agency ing in the Order would exempt Barberry Homes from decision that, after lengthy litigation, became fi- liability for ordinary trespass or ordinary nuisance. That nal back in March 1996. statement in the Order did not change what the Order had, by its express terms, allowed the owner to do--i.e., [*15] Here,the fact that the prior owner may,back to place the replicated wetlands near the boundary of during the proceedings before DEP, have been able to Allison's property, propose some other location for the replicated wetlands 3. [*17] Expiration of permit does not make it "unreasonable" for Barberry Homes(an entity that had no involvement in what proposals the Allison further argues that the Order confers no li- Trust made to DEP) to construct the replicated wetlands cense on Barberry Homes because, Allison contends, it in the location that DEP ultimately approved. Once is- expired back in October 1996. Allison's reading of the sued, the Superseding Order of Conditions did not allow Order is in error. Allison acknowledges that the three- the Trust or Barberry Homes to move the replicated wet- year period in which to perform the work did not start to lands to some other location on the property. z The li- run while appeals were pending, but she contends that cense specified exactly where the replicated wetlands that tolling is limited to administrative appeals within were to be. That that location may, in the first instance, DEP and does not extend to appeals in court. The Gen- have been suggested by the prior owner does not change eral Conditions of the Order provided that no work was the fact that that is the location that DEP approved. The to be done until "all administrative appeal periods have doing of precisely what DEP approved in the Supersed- elapsed or, if such an appeal has been filed, until all pro- ing Order is not a nuisance,without regard to the thought ceedings before the Department have been completed." process by which DEP gave that approval. However, the Special Conditions of the Order extended that prohibition on work until "all appeal periods have 2 Indeed, Barberry Homes could not move the elapsed and this Superseding Order of Conditions has replicated wetlands to some other location with- been recorded." The statute ( G.L.c.131,f3 40) similarly out filing a new notice of intent, completing pro- provides that no work is to commence until "all appeals ceedings before the Commission, going through periods have elapsed." Neither the Special Conditions DEP appeals, and then again surviving any court nor the statute limit the term "appeal period" or"appeals challenges. Ironically, what Allison claims is the period"to administrative appeals. Logically,they include undue burden on her property that makes these all forms of"appeals," including judicial [*18] review. replicated wetlands a "nuisance" is the fact that To interpret the term otherwise would grant every oppo- she would have to go to the Commission, DEP, nent of every project a guaranteed method for preventing etc. if she wanted to make any alterations on that a project from going forward, as, by the mere filing of part of her property that is now subject to wet- successive appeals in court, an opponent could easily lands regulation. If that is an unreasonable burden Page 6 2000 Mass. Super. LEXIS 323, "run out" the three-year time period set by DEP's stan- work after October 29, 1996, there has been no dard Order. ' enforcement action of any kind from DEP on ac- count of any alleged unlawful activity at the site. 3 Based on the March 29, 1999 letter from a While this court must show considerable defer- Section Chief at DEP, Allison also contends that ence to DEP's interpretation of its own Orders, DEP itself is of the view that this Order expired regulations and statutes,DEP's actions(and its in- on October 29, 1996, making the entirety of Bar- ternal correspondence) are consistent with this berry Homes' work at the site unlawful. A more court's view that the three-year time period did careful review of DEP's actions makes clear, not begin to run until all appeals, including court however, that this is not DEP's position. DEP appeals,were exhausted. conducted a site visit at Green Hill Estates on [*19] ORDER November 20, 1996 and issued a Water Quality Certificate for the project on January 2, 1997. For the foregoing reasons, defendant's motion for DEP would not be visiting the site or issuing such summary judgment is ALLOWED and it is hereby a Certificate for the project if it were of the view ORDERED that judgment be entered in favor of defen- that the underlying Order had already expired. dant Barberry Homes,Inc. Barberry Homes has also submitted internal DEP correspondence(to DEP's General Counsel)opin- ing that the Order "is good for 3 years from the Justice of the Superior Court court decision." Finally, despite DEP's full awareness that Barberry Homes performed the DATED:July 26,2000 Page 1 L *LexisNexls°� 2 of 2 DOCUMENTS Priscilla Littlefield et al. v. Zoning Board of Appeals of the Town of Stow et al. Opinion No.: 100026,Docket Number: 03-CV-1816-F SUPERIOR COURT OF MASSACHUSETTS,AT MIDDLESEX 2007 Mass.Super.LEXIS 434 September 25,2007,Decided CASE SUMMARY: Real Property Law > Torts > Nuisance > Types >Pri- vate Nuisance PROCEDURAL POSTURE: A town zoning board of [HN I]To succeed on a private nuisance claim,a plaintiff appeal (board) affirmed the issuance of a special permit must show that the defendants caused a substantial and to two trustees who owned the affected property to con- unreasonable interference with the use and enjoyment of struct a cell phone tower and supporting equipment their property. An intentional invasion of another's inter- thereon. As a result, those neighbors that were affected est in the use and enjoyment of land is unreasonable if by said decision appealed, asserting a private nuisance the gravity of the harm caused thereby outweighs the claim. utility of the actor's conduct. In reaching a determination, the character of the locality is of great importance. OVERVIEW: Upon a review of the record, and the elements of the neighbors' private nuisance claim, the instant court first found that because it was conceded that Real Property Law > Torts > Nuisance > Types > Pri- the trustees, two telecommunications companies, and a vate Nuisance holding company were licensed by the proper public [HN2] The harm required to be proven in a nuisance authorities to maintain the tower,the neighbors could not claim must be unreasonable and substantial. More spe- restrain the reasonable and careful manner of the very cifically,the injury or annoyance must have substantially activity that was subject to said license. Second,the court interfered with the ordinary comfort of human existence, found that the project had not diminished the fair market or have been substantially detrimental to the reasonable value of the neighbors' properties, and, there was no use or value of the property. credible evidence that the neighbors' property values declined as a direct result of the facility's existence. Third, there were no sounds, odors, or other forms of Real Property Law > Torts>Nuisance> Types> Gen- interference; rather, the neighbors merely claimed that eral Overview the facility was unsightly. Finally, the court agreed that [HN3] For purposes of analyzing a nuisance claim, in the wireless communications facility was useful for order to determine the reasonableness of the challenged many citizens. Thus,the neighbors' failed in their burden activity, a reviewing court may also consider the useful- to prove a private nuisance. ness of the conduct. OUTCOME: The board's decision was upheld, as the JUDGES: [*1] DENNIS J. CURRAN, Associate Jus- neighbors'private nuisance claims lacked merit. tice. LexisNexis(R)Headnotes OPINION BY: DENNIS J.CURRAN OPINION 2007 Mass. Super. LEXIS 434, Page 2 First, it is completely misleading to refer to this as a MEMORANDUMOFDECISION AND ORDER cell "tower";rather, it is a large single pole, much akin to BACKGROUND a flagpole, painted a nondescript gray. A small utility hut, surrounded by a chain link fence, completes [*3] This is a zoning appeal filed by neighbors of 29 the picture. Second, the pole is located in a thick and Wheeler Road, Stow, Massachusetts against its owner, densely forested area; it lies at least a quarter of a mile Donald B. Hyde, Jr. and the Stow Zoning Board of Ap- from the nearest road. It simply cannot be found without peals (and its ten members and alternate members). It the assistance of a guide. arises out of the Board's decision to affirm the Stow FINDINGS OF FACT Building Commissioner's issuance of a special permit to construct a cell phone tower and supporting equipment at The defendant Donald B. Hyde, Jr. and Jean F. that property. Hyde,as Trustees of the Hyde Residential Trust,own the PROCEEDINGS property at 29 Wheeler Road, Stow, Massachusetts (the "property"). The Town of Stow Zoning Bylaws allow for This case was tried,jury-waived, on July 23 and 24, the erection of a wireless communication facility by spe- 2007. cial permit from the town Planning Board. At trial, the plaintiffs' first witness was Barry Sulli- On or about June 13, 2000, Donald B. Hyde, Jr., van, a former neighbor, but still a party, who testified Nextel Communications, Verizon Wireless and Omni- that he moved his family because of the cell tower. He point Holdings, Inc. applied for a Special Permit and Site found it "offensive," "overbearing,"that it clearly did not Plan Approval for a wireless construction facility on the fit in place with the surrounding flora, and that he "felt property with the Stow Planning Board. The Board de- [his] dream house was shattered by this monstrosity." nied that application. Under G.L.c. 40A,f3 17 however, Michael Pazzaneze, another neighbor, echoed Mr. Donald B. Hyde, Jr. and Omnipoint Holdings, Inc. ap- Sullivan's testimony, but expanded that the cell phone Pealed that denial to the U.S. District Court for the Dis- tower had "created quite a strain on [our] marriage." trict of Massachusetts. Other of the plaintiffs witnesses testified similarly. An agreement for judgment was entered in the U.S. All conceded that there were no sounds, lights or odor District Court on June 14,2002,among Omnipoint Hold- emitting from the single tower area, but that [*2] the Ings, Inc., Donald B. Hyde Jr., Jean F. Hyde, the Town aesthetics bothered them. They all claimed their property of Stow, the Stow Planning Board and the individual values fell because of this "monstrosity." members of the plan approval were granted]nspecial permit intert alia, o construct DISCUSSION single-pole cell tower and wireless facility on the prop- The dramatic effect this offensive structure created ems. in these person's lives and marriages caused this court On October 27, 2002, Donald B. Hyde, Jr. applied great concern. Thus, the morning of the second trial day for a building permit application with the Town of Stow. was spent visiting the site. As a result,this Court's obser- vations were at variance with,the testimony of the plain- The project consists of a 100-foot, multi-carrier sin- tiffs'witnesses. ' gle-pole cell tower. Essentially, as stated above, it looks like a flag-pole. The pole itself houses an internal an- I This court well understands that the site visit tenna; it has no external apparati. A small equipment occurred in the midst of summer and thus, foliage shelter contains radio transmitters and receivers, land- was thick and verdant. However, it would be dif- line telephone interconnection equipment and backup ficult to imagine being able to see this pole even batteries. This equipment is not visible from outside the in the dead of winter. shelter. Further, it is also possible, indeed highly The project has received approvals from every mu- probable,that the offending pole could be seen by nicipal,state and federal authority: neighbors when this lawsuit was filed four years a o in 2003. But the passing The FCC authorized Omnipoint Hold- ago p g years have wit- ings, Inc. to construct and operate a radio nessed the inevitable growth of surrounding trees. In any event, at the present, there is no way this transmitting facility as part of the project. pole is visible from any of the neighbor's proper- Both the U.S. Federal Aviation Ad- ties. ministration(FAA)and the Massachusetts Aeronautics Commission have determined 2007 Mass. Super.LEXIS 434, Page 3 that the project presents no hazard to air A. THE PLAINTIFFS MUST SHOW THAT THE navigation. CHARACTER OF THE AREA IS UNSUITABLE FOR The Massachusetts Executive Office A WIRELESS COMMUNICATIONS FACILITY. of Health and Human Services approved The pole and but are situated far from any neighbor- the project for radio frequency emission ing homes. exposure levels. Moreover, Hyde, Omnipoint and Nextel have all of The FCC and the FAA have issued the required licenses and approvals from town, state and radio station license [*5] and survey cer- federal authorities to operate the facility. The Stow tifications, respectively, to Nextel Com- Building Department has issued a building permit and a munications,a former party to this action. certificate of use and occupancy. "Since it is conceded The Town of Stow issued a permit that the defendants were licensed by the proper public for the operation of a wireless tower on authorities to maintain such a [facility], the plaintiff can- the property. not restrain as a nuisance the doing in a reasonable and careful manner of the very act licensed." Czapski v. Sun Oil Co., 303 Mass. 186, 21 N.E.2d 230(1939). Further, I find that the project has not diminished the B. THE PLAINTIFFS MUST SHOW THAT THE fair market value of the neighbor's properties. CLAIMED HARM IS UNREASONABLE AND SUBSTANTIAL. Martha Pazzaneze applied to the Town of Stow for a tax abatement in 2005 and 2006. The 2005 abatement [HN2] The harm required to be proven [*7] in a request was granted, but not because of the proximity of nuisance claim must be unreasonable and substantial. the project. Indeed, the Town of Stow has never granted Rattigan at 856 n.13.There is no such harm here. a tax abatement because of a nearby wireless communi- There are no sounds, odors, or other forms of inter- cations facility. ference; rather, the plaintiffs claim that the facility is This Court conducted a site visit on July 24, 2007. unsightly. But, as the court noted supra, "[t]he injury or The pole, storage but and other equipment are located in annoyance must have substantially interfered 'with the a thickly forested area, far from any of the plaintiffs' ordinary comfort . . . of human existence,' or have been properties. None of them are visible from any of these substantially detrimental to the 'reasonable use [ ] or properties. This Court simply cannot agree with the value of the property.' " Rattigan at 856, quoting Metro- plaintiffs' claims. No harm occurred here,nor could it be Poulos v. MacPherson, 241 Mass. 491, 502, 135 N.E. plausibly so alleged. 693(1922).This was not the case here. DISCUSSION Further, there is no credible evidence that plaintiffs' property values have declined due to the defendants' ac- INTRODUCTION--THE PRIVATE NUISANCE tions. CLAIM Finally,[HN3] to determine the reasonableness of [HN1] To succeed, the plaintiffs must show that the the activity, we may also consider the usefulness of the defendants caused a "substantial and unreasonable inter- conduct. The defendants state that a wireless communi- ference with the use and enjoyment of[their] property." cations facility is useful for many citizens. This is true. Rattigan v. Wise, 445 Mass. 850, 856, 841 N.E.2d 680 Accordingly,the plaintiffs cannot sustain their burden on (2006). this element. An intentional invasion [*6] of another's interest in ORDER the use and enjoyment of land is unreasonable if the " 'gravity of the harm' caused thereby 'outweighs the util- For the foregoing reasons, judgment shall enter ity' of the actor's conduct." Rattigan at 856-57, quoting forthwith for the defendants on all counts. Restatement(Second) of Torts supra at section 826(a). FOR THE COURT In reaching a determination, the character of the lo- DENNIS J. CURRAN cality is of great importance. Kasper v. H.P. Hood & Sons, Inc., 291 Mass. 24, 27, 196N.E. 149(1935). Associate Justice September 25,2007 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION OF METROPCS MASSACHUSETTS, LLC FOR SUMMARY JUDGMENT INTRODUCTION This is a zoning appeal under Chapter 40A section 17, brought by neighbors to a proposed wireless telecommunications site. The defendant, MetroPCS Massachusetts LI,C ("MetroPCS") was granted a special permit to install wireless telecommunications antennas entirely within an existing church steeple located at 70 Elm Street in North Andover. Some of the plaintiffs' residences are across the street from the church. The plaintiffs timely filed their appeal in this Court. STATEMENT OF FACTS All of the operative, undisputed facts are contained in the Defendant's Statement of Material Facts filed herewith. In brief, MetroPCS is a provider of wireless personal communications services ("PCS'') licensed by the Federal Communications Commission ("FCC"). Statement of Material Facts ("SMF") ¶L It sought and obtained a special permit from the North Andover Planning Board to install a facility consisting of 6 panel antennas inside of an existing church steeple located at the Trinity Congregational Church at 70 Elm Street. The church is located in an R4 single-family residential zoning district. SMF ¶14. As installed, the facility would be undetectable from the exterior of the church. SMF 1112. The Plaintiffs are all residents of the neighborhood where the church is located. Some are statutory "parties in interest," some are not. Plaintiff's Complaint¶6. Each of the Plaintiffs appeared personally during the several scheduled sessions of the Planning Board hearing, and each spoke in opposition to the application. SMF¶T 27-65. Each of them stated that their opposition was based, at least in part, on their fears of the unknown health risks associated with radio frequency emissions from wireless communications antennas. The Plaintiffs also stated their position that the application was in violation of a zoning bylaw requirement that all wireless services facilities (other than those attached to existing communications towers) must be set back a minimum of six hundred (600) feet from any school or residential property. None of the Plaintiffs offered any rationale for applying the setback to an internal installation. It is apparent that the sole basis for their opposition to the MetroPCS installation is fear of the unknown health risks associated with radio frequency emissions from wireless communications antennas. As a result, each of the Plaintiffs lacks standing—either to appeal the unanimous decision of the Planning Board or to assert common law or constitutional claims. 2 LEGAL ARGUMENT I. STANDARD FOR MOTION FOR SUMMARY JUDGMENT Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). See Mass. R. Civ. P. 56 (c); Petrell v. Shaw, 2009 Mass. LEXIS 39, 8. It meets that burden when it shows that the opposing party has no reasonable expectation of proving an essential element of its case. Kourouvacilis, supra at 716; Finn v. National Union Fire Insurance Co., 452 Mass 690, 692 (2008). Once the moving party has satisfied its burden of showing that there is no genuine issue as to any material fact in dispute, and that, as a matter of law, it is entitled to summary judgment, the opposing party cannot rest upon its pleadings or mere allegations of disputed facts, but must affirmatively put forth admissible evidence of a triable issue to avoid summary judgment. See Id. at 710-711; LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Additionally, a party moving for summary judgment who does not bear the burden of proof at trial demonstrates the absence of a triable issue either by submitting affirmative evidence negating an essential element of the non- moving party's case or by showing that the non-moving party is unlikely to submit proof of that element at trial. Mammone v. President& Fellows of Harvard College, 446 Mass 657, 666 (2006); Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). MetroPCS submits that none of the Plaintiffs here can sustain their burden of proof that they are "aggrieved parties." Even if one or more of them can hang their hat on some thread of standing, MetroPCS submits that there is no set of facts they can prove to prevail on the merits. 3 II. THE PLAINTIFFS CANNOT DEMONSTRATE THAT THEY ARE "AGGRIEVED PARTIES" "Only a person aggrieved may challenge a decision of a zoning board of appeals." Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719, 721 (1996). See Nickerson v. Zoning Board of Appeals of REnh 53 Mass. App. Ct. 680, 681, n. 2 (2002). A person qualifies as a"person aggrieved" upon a showing that his legal rights will be infringed by the board's action. Marashlian, supra. In order to establish standing, plaintiffs must put forth credible evidence to substantiate the claims of injury to their legal rights that is neither speculative nor too remote to make the plaintiffs "persons aggrieved." See Marashlian, 421 Mass. at 723. Such credible evidence must "provide factual support for each of the claims of particularized injury the plaintiff has made," Id. at 724; Butler v. City of Waltham, 63 Mass. App. Ct. 435, 441(2005), and it must be "of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Id.; see Monks v. Zoning Board of Appeals of Plymouth, 37 Mass. App. Ct. 685, 688 (1994). See also Barnevik v. Board of Aldermen of Newton, 33 Mass. App. Ct.129 (1992). The claimed injury must be to interests "of a type that are intended to be protected by the zoning enabling act (such as property values, traffic, or parking); and the claims must be neither speculative nor too remote." Standerwick v. Zoning Board of Appeals of Andover, 64 Mass. App. Ct. 337, 340 (2005). The plaintiff must also show that the injury flowing from the board's action is "special and different from the injury the action will cause the community at large." Bell v. Zoning Board of Appeals of Gloucester, 429 Mass. 551, 554 (1999); Standerwick, supra at 340. 4 While abutters generally enjoy a presumption of standing, Bell, supra at 429 Mass. at 553; Watros. v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass, 106, 111 (1995), the presumption is rebuttable and recedes when a defendant challenges the plaintiff's status as an "aggrieved person" and "offers evidence warranting a finding contrary to the presumed fact." Watros, supra at 111, Standerwick v. Zoning Board of Appeals, 447 Mass. 20, 29 (2006). The supporting evidence required to successfully challenge a plaintiff s standing can be either affirmative evidence that the plaintiff is not aggrieved or evidence that the plaintiff has failed to offer any evidence of a"plausible claim of a definitive violation of a private right, a private property interest, or a private legal interest" necessary to challenge the permit at issue. Bell, 429 Mass. at 554 (quoting Harvard Square Defense Fund, Inc. v. PlanningBmf Cambridge, 27 Mass. App. Ct. 491, 493 (1989)). Once the defendant challenges standing, the burden shifts to the plaintiff, who must come forth with specific facts to support his or her standing and the jurisdictional question is decided by the fact finder on "all the evidence with no benefit to the plaintiffs from the presumption." Bell, 429 Mass. at 553; Marashlian, supra at 421 Mass. at 721; Barvenik, supra at 131. A. Plaintiffs' Grounds for Standing Are Based Upon Fears of Harm from RF Emissions. None of the Plaintiffs' grounds for standing does not satisfy the Barvenik-Marashlian test because they are all based, whether directly or indirectly, forthrightly or by stealth, upon their fears of RF emissions. Each of the Plaintiffs in this case has made public statements, whether before the Planning Board at its public hearing, or to news reporters, which clearly articulate their health concerns as the basis of their opposition. SMF ¶T 27-65. Whether by direct avowal (SMF¶T26, 5 28, 29), yard signs (SMF ¶31), indirect reference to the purported application of a 600' setback (SMF ¶¶27, 30), or references to diminution in property values(SMF T¶32, 59, 61, 62), all of the Plaintiffs referenced health concerns, and none of them articulated any other basis of harm. Unless the Plaintiffs can articulate some factual basis to support the application of the setback requirement to an interior antenna installation, or its alleged effect on property values, that is unrelated to RF emissions, those concerns cannot under any circumstances form the basis for their standing, because federal law pre-empts state law from regulating the field. B. Federal Law Pre-Empts Any Cause of Action Based on RF Emissions The Plaintiff's standing can only come as the result of an injury to a property interest that is protected by the zoning bylaw. Standerwick, supra at 340. The Plaintiffs claim that the North Andover zoning bylaw's intent to protect "health, safety and welfare" empowers the Planning Board to regulate MetroPCS's internal steeple installation based on the (perceived) environmental effects of RF emissions. Complaint¶74.1 Such an application would clearly be in direct conflict with, and therefore pre-empted by, federal law. Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 490-491 (1999). So too, are any other common law claims pled by the Plaintiffs. The most thorough state court review of the Telecommunications Act pre-emption issue (for both state zoning-related and common law claims) is contained in Goforth v. Smith, 338 Ark. 65 (1999) (see copy attached to Motion at Exhibit R). In that case, the trial court dismissed both nuisance and radio frequency claim based on federal pre-emption and the abutters appealed. The Arkansas Supreme Court embarked upon exhaustive review of the issue of federal pre- 6 emption, and held that federal statutory pre-emption over regulation based on radio frequency emissions was beyond question and applied to both state statutory and common law causes of action: It is clear that Congress has preempted consideration of the environmental effects of radio frequency emissions in determining the location of towers; however, appellants argue that this does not preempt private causes of action based upon the environmental effects of those same emissions. In Cipollone v. Liggett Group, Inc. 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992), the Supreme Court wrote "At least since Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938) we have recognized the phrase "state law" to include common law as well as statutes and regulations." We note that other jurisdictions have determined in similar circumstances that federal preemption limits private common-law actions as well as state action. In Broyde v. Gotham Tower, Inc., 13 F.3d 994 (6th Cir. 1994), the Sixth Circuit Court of Appeals determined that an action for nuisance, based upon allegations that radio signals exceeded federal standards, was properly dismissed by the district court on the basis of preemption by the Federal Communications Act. The Sixth Circuit noted that the FCC clearly has exclusive jurisdiction over technical matters associated with transmission of radio signals and agreed with the district court when it found that: The consistent finding of preemption by all courts that have considered the interaction of common law nuisance claims and the Federal Communications Act. See Still v. Michaels, 791 F. Supp. 248 (D. Ariz. 1992)(nuisance action preempted by Federal Communications Act); Still v. Michaels, 166 Ariz. 403, 803 P.2d 124 (1990)(FCC has exclusive jurisdiction over resolution of radio signal interference nuisance claims); Smith v. Calvary Educational Broadcasting Network, 783 S.W.2d 533 (Mo. Ct. App. 1990)(Federal Communications Act preempts state nuisance action based on radio signal interference with electrical appliances); Blackburn v. Doubleday Broadcasting Co., Inc., 353 N.W.2d 550 (Minn. 1984) (radio transmission nuisance claims under exclusive jurisdiction of FCC). Broyde v. Gotham Tower, Inc., supra. The Court of Appeals then stated that with regard to the jurisdiction of the FCC over radio frequency interference: Adding to the gravitas of their claim,the Complaint states"the provision in the decision that`The Telecommunications Act of 1996 prohibits the Board from taking health effects of RF transmission into account beyond FCC requirements' is incorrect, untrue,perverse and pernicious." Id. at¶76. 7 Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. The Conferees believe that radio transmitter operators should not be subject to fines, forfeitures, or other liability imposed by any local or state authority as a result of interference appearing in home electronic equipment or systems. Broyde v. Gotham Tower, Inc., supra The Sixth Circuit finally stated that "given such explicit congressional pronouncements, enforcement of the plaintiffs' state law nuisance action would frustrate the objectives of the Act." Id. Goforth, 338 Ark. at 73-75. The Second Circuit Court of Appeals came to the same conclusion in a Vermont case, Freeman v. Burlington Broadcasters, 204 F. 3d 311 (2000): We conclude that allowing local zoning authorities to condition construction and use permits on any requirement to eliminate or remedy RF interference "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Fidelity Federal Savings & Loan Ass'n, 458 U.S. at 152 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) (internal quotation marks omitted), in delegating regulatory power to the FCC for uniform regulation of broadcast technologies. At least one other court has agreed with this view with respect to local zoning permits. See Southwestern Bell Wireless Inc. v. Board of County Commissioners, 199 F.3d 1185, 1193 (10th Cir. 1999). Other courts have reached the same conclusion when faced with the question whether federal law preempts state common law nuisance actions purporting to regulate RF interference. See Broyde, 13 F.3d at 998; Still v. Michaels, 791 F. Supp. 248, 252 (D. Ariz. 1992) (alternative holding); Still v. Michaels, 166 Ariz. 403 (Ariz. Ct. App. 1990); Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d 691, 693 (Ky. 1984); Blackburn v. Doubleday Broadcasting Co., 353 N.W.2d 550, 556-57 (Minn. 1984); Smith v Calvary Educational Broadcasting Network, 783 S.W.2d 533, 536-37 (Mo. Ct. App. 1990); Monfort v. Larson, 257 A.D.2d 261, 693 N.Y.S.2d 286, 289 (N.Y. App. Div. 1999); Fetterman v. Green, 455 Pa. Super. 639, 689 A.2d 289, 294 (Pa. Super. Ct.), appeal denied, 695 A.2d 786 (1997); cf. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579, 583-84 (Ark. 1999) (state law action to remedy environmental effects of RF emissions preempted) The Massachusetts Land Court has faced the question directly in Hill v. Lebrun, 12 L.C.R. 46 (2004)(copy attached at Exhibit R). There, abutter-plaintiffs appealed the granting of permits to replace communications dishes on an existing 320' communications tower with less intrusive 8 wireless antennas. They based their standing on two issues present here: diminution of property values and health risks to neighborhood. The court found that both grounds failed: Under the facts presented by this case, however, Plaintiffs' health concerns cannot confer standing. The Federal Telecommunications Act (TCA) provides, "no State or local government or instrumentality thereof may regulate the placement, construction, and 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 [Federal Communications] Commission's regulations concerning such emissions." 47 U.S.C. §332(c)(7)(B)(iv) (emphasis added.) See also Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 482 (1999). Without any evidence rebutting Defendants' study, Plaintiffs' claim that the Facility poses a health hazard is not only completely speculative and unsupported by direct facts, but beyond the scope of the Board's consideration due to the provisions of the TCA. Accordingly, Plaintiffs are precluded from relying on health concerns to establish their standing. Hill v. Lebrun, supra at 15-16 (emphasis in original). The appellate courts in Massachusetts have yet to face the pre-emption issue as squarely as the Land Court did in Hill, but the conclusion in Hill is consistent with the few state court decisions that have ruled on it. See, e.g., Hewitt v. Planning & Zoning Comm'n of Montville, 2000 Conn. Super. LEXIS 2301 at 7-8 ("the substantive claims upon which the plaintiff bases his claims of aggrievement, i.e., health risks from radio frequency emissions from multiple communication facilities, cannot be considered by a zoning commission pursuant to the federal telecommunications act and thus cannot form a basis for aggrievement"); Kapton v. Bell Atl. Nynex Mobile, 700 A.2d 581, 584 (Pa 1997) (Plaintiff conceded preemption on appeal).Z Both cases are attached at Exhibit R. '`The Defendant's search of all state court jurisprudence has identified no case in which standing has been conferred specifically on the basis of RF-related health concerns. 9 In Denneny v. Zoning Board of Appeals of Seekonk, 59 Mass. App. Ct. 208 (2003), the Appeals Court upheld the Superior Court's denial of the plaintiff's standing based on health concerns from a cellular tower; but in that case, standing was rejected because the health concerns were deemed "unsubstantiated claims or speculative personal opinions," Id. at 212, citing Monks, 37 Mass. App. Ct. at 688. "We agree with the judge that the plaintiffs claims of danger to neighborhood children and danger to the health of the community reflect general concerns and are not sufficiently specific to her to confer standing." Denneny, supra at 212. But the court apparently wasn't asked, and did not rule, on the question of whether such concerns could confer standing at all. The overwhelming weight of authority has concluded that the Telecommunications Act of 1996 preempts not just challenges to zoning approvals that are based upon health concerns about RF emissions, but also any other constitutional, statutory or common law cause of action. Since the cause of action on the merits is preempted, there is no basis upon which standing can lie, and the Plaintiffs' claims must be dismissed. C. The Plaintiffs' Claim That Their Property Values Will Be Diminished Is Based On Unsubstantiated Fears and Impermissible Factors Assuming that their Complaint sufficiently articulates the claim, the Plaintiffs cannot base their standing on the effect of cellular antennas on their property values, because the basis of that claim is RF-related as well. If the Plaintiffs cannot base their standing on their health concerns about RF emissions, they cannot base their standing on the consequence of such a fear--that others who share that fear will be unwilling to purchase their property. The conclusion is born out in the applicable jurisprudence. 10 At least one of the Plaintiffs alleges that this visually undetectable installation of wireless antennas behind the steeple louvres will diminish the value of property in the neighborhood. SMF ¶11 59-63. Lauretta Wentworth, who identified herself as a real estate agent, stated that the average consumer is concerned about health issues, and that the proposed installation will have an effect on property values. SMF ¶59. She made reference to "a complete market analysis" showing a loss of$20,000 in value. SMF¶61.3 At least Ms. Wentworth made an attempt to document her position. Ms. Fournier found no such necessity. As a member of the town's Wireless Bylaw Review Committee, SMF¶44, Ms. Fournier has favored not just applying the 600' setback to interior steeple installations like the one at issue here, SMF¶¶34, 38, 40-41, but increasing that setback to 800'. Despite the stern warning of town counsel that such a setback must have a justification unrelated to RF health concerns, SMF ¶¶48-49, Fournier defended the WBRC chairman's position that"property value isn't born of visual impact or noise; decline in property value by itself is substantial evidence for denial of a permit," SMF¶57, stating: "we don't get sued for having setbacks. Attorney Ginsberg was clear in giving reasons for setbacks. Courts don't prohibit setbacks. It's a matter of whole bylaw prohibits provision of wireless service communications. Issue is there is significant gap in coverage? Wireless people go to court and find there are alternative sites they can use to uphold their setbacks (sic)." SMF ¶58. But as the Denneny court held, the allegation that"per se the proximity of a tower reduces the value of property," without more, is speculative and conclusory and insufficient to warrant a finding of standing. Denneny, supra at 214.Without admissible evidence to support them, the 3 Based upon the records of the Planning Board, Mw. Wentworth submitted a listing sheet and an"assessment and sales report" for 45 Elm Street. It is unclear from the information how Ms. Wentworth reached the conclusion she did. SMF¶61. 11 property value claims are nothing more than speculative, unsubstantiated fears, and are insufficient to establish the existence of a legally protected interest. See LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Further, a claim of diminution of property values must be derivative of or related to cognizable interests protected by the zoning scheme. Standerwick, supra at 24; See Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495, 503-504 (1940). Concerns about the effects of radio frequency emissions are not, because the zoning scheme's putative application to such concerns is superceded by federal law. The Telecommunications Act's pre-emption on regulation "on the basis of the environmental effects of radio frequency emissions" is intended to prohibit the municipality from "basing the regulation of the placement ... [of the monopole] directly or indirectly on the environmental effects of radio frequency emissions." H.R. Conf. Rep. No. 104-458, 142 Cong. Rec. H1078-03, H 1134 (1996). The prohibitive language "directly or indirectly" has import. The statute does not allow a regulatory agency to do indirectly what it is forbidden to do directly. Sprint Spectrum LP v. Town of Farmington, 1997 U.S. Dist. LEXIS 15832 (D. Conn. 1997) held: "by considering the effects on property values caused by fear of radio frequency emissions, the Commission improperly indirectly based its decision on the effects of radio frequency emissions." The prohibition on using the "back door" when the front door is locked is a universal principle. See, United States v. O'Hagan, 521 U.S. 642, 697 (1997); Rossi v. Brown, 9 Cal. 4" 688, 726 (1995); Regents of Univ. of California v.City of Los Angeles, 100 Cal. App. 3d 547, 550 (1979); Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 107 (1952); City of Carrollton v. Bazzette, 159 I11. 284, 297 (1896); In Re Public Service Company, 130 N.H. 265, 282 (1988); Finley Shoe & 12 Leather Co. v. Kurtz, 34 Mich. 89, 90 (1876); Masiello v. Ash, 2002 Me. Super. LEXIS 54 at 17 (2002); Pelella v. Pelella, 13 Misc. 2d 260, 264 (1958), citing Ford Motor Co. v. Abercrombie, 207 Ga. 464, 473 (1950). This principle was unambiguously applied in Cellular Telephone Company v. Town of Oyster Bay, 1998 U.S. District LEXIS 21500, where the court looked behind the facially plausible grounds stated in the zoning board's denial to what was evident in the record of the hearing: ...although fear over RF emissions was not an expressly stated reason for the denials, the Court cannot overlook the fact that the central focus of the Board's questioning and the community opposition was based almost exclusively on the health effects of the RF emissions and the effect on property values because of the purported health risks involved. Id. at 13-14, affirmed, Cellular Telephone Company v. Town of Oyster Bay, 166 F. 2d 490, 494 (1999). See also, Sprintcom inc. v. Puerto Rico Regulations and Permits Admin., 553 F. Supp. 87 (2008) (Board's decision as a result of"neighbors participated in a massive opposition whereby thirty-one of the thirty-two individuals who attended the Public Hearing were in opposition to Sprint's application" on the basis of health concerns); AT&T Wireless Services of Cal. V. City of Carlsbad, 308 F. Supp. 2d 1148, 1162 (2003)(city impermissibly found that the site would negatively affect the property values of the nearby homes based upon the perceived fear of the health effects). See also USCOC of New Hampshire RSA #2. Town of Hopkinton, 137 F. Supp. 2d 9 (D. N.H. 2001); USCOC of New Hampshire RSA 92. Town of Franklin, 2005 Dist. N.H. LEXIS 40040; Sprint Spectrum L. P. v, Town of Stonington, 12 F. 13 Supp. 2d 247 (D. Ct. 1998). Consequently, the Plaintiffs can take no refuge in the "expert" affidavit submitted to the Planning Board to support their claim. See SMF 11¶62-63.4 The Land Court's decision in Hill v. Lebrun, supra, addressed the Plaintiffs' contention that their property values would be affected by the visibility of a nearby cell tower. The court was careful to distinguish the Upton zoning bylaw from that at issue in Monks, supra, which had as one of its purposes "to minimize the visual and environmental impacts of personal wireless service facilities:" The difference in these two Bylaws is that the Bylaw in Monks prohibited uses that detracted from the visual character of the neighborhood in any way, where the Upton Bylaw seeks to minimize the visual impacts of wireless service facilities Id. at 13 (Emphasis in original). The Hill decision is notable for its inscrutable avoidance of the "environmental impacts" portion of the bylaw, confining its examination to the lack of evidence that demonstrated visual impacts that would affect property values. The court noted the Plaintiffs obligation to "credibly allege some effect from the 2002 Decision itself which causes his aggrievement in order for him to have standing." Hill v. Lebrun, supra. at 14. In other words, it is not enough for the Plaintiff to say simply that his property values are affected. He must articulate the nature of the impact that brings it about. In this case, where the installation will have no discernable visual effect at all, the Plaintiffs are hard pressed to provide any explanation other than what they've so publicly claimed all along. If it is the mere presence of cell phone antennas, without any visible or auditory impacts, that forms the basis of the Plaintiffs' claims that property values are affected, their standing on that basis must fail. To the extent that the Plaintiffs will rely on the affichvit before this court, MetroPCS challenges its admissibility. 14 D. Interest in Protecting the Residential Neighborhood Cannot Confer Standing The Plaintiffs have focused much effort on the argument that the wireless bylaw's 600' setback requirement from property zoned or used for residential or educational purposes must apply to any wireless installation on (or in) an existing building. Nowhere in the record have they articulated what the rationale for such a setback would be (besides protecting residents and students from health risks). Anticipating the possible explanations that may be forthcoming, MetroPCS submits that protecting the nature, aesthetics or qualitative elements of the residential neighborhood is not an interest that would confer standing. We know that an abstract interest in enforcement of the zoning laws is not sufficient to confer standing. Denneny, supra at 215, citing Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. at 495-496. Is that what the Plaintiffs' interest in enforcement of the setback is? In Barvenik, the Board of Aldermen of Newton granted a special permit to allow the construction of 114 elderly housing units in a two-family residence district. The plaintiffs were abutters and entitled to the presumption of standing. The plaintiffs expressed general unhappiness at the proposal for development of the site for a variety of reasons, including dislike of the architectural style and a belief that the project would cause excessive impacts, from traffic to drainage and water pressure problems. Barvenik, 33 Mass. App. Ct. at 134-136. The court found that the plaintiffs did not have standing because they failed to assert a factual basis to support their claim of injury: "Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space all are considered insufficient bases for aggrievement under Massachusetts law." 15 Barvenik, 33 Mass. App. Ct. at 131- 132. MetroPCS is eager to discover how the Plaintiffs characterize the nature of their interests here. This would not be the first time a court has dealt with RF opposition masquerading as legitimate zoning concerns. In Sprint Spectrum L.P. v. Borough of Ringwood Zoning Board of Appeals, 386 N. J. Super. 62 (2005), the local zoning authority sought to defend its 1000' setback from schools on the bases of aesthetics and attractive nuisance.5 The court rejected both claims, finding "the municipality determined to have a proximity requirement of 1,000 feet because of public concerns about health hazards from radio frequency emissions." Therefore, it ruled, the proximity (setback) regulations violate Section 332(c)(7)(B)(iv). Id. at 70. See, Exhibit R. The Plaintiffs position is that, aside from existing telecommunications towers, no new wireless telecommunications facility may be permitted within 600' of any property zoned for residential or educational purposes without a variance. SMF ¶27, 30, 38, 40. The result is a policy that excludes such facilities not only from all residentially zoned areas, but within 600' of their borders. Just such a policy was struck down by the federal court in Smart SMR v. Zoning Commission, 995 F. Supp. 2d 52, 58 (D. Conn. 1998): By generally disfavoring the approval of placing personal wireless service facilities in all residential zones, and instead of adhering to a policy whereby the Commission would consider each such petition on a case-by-case basis, we therefore find that the Commission's policy had the effect of prohibiting the provision of personal wireless services. s Compare Ms. Fournier's statement in her Letter to the Editor of the North Andover Citizen: `Aesthetics and property devaluation are just by-products of the main concern. At its core, radio frequency radiation is a medical 16 However the Plaintiffs attempt to cast their grievances so as to avoid the certainty of dismissal on RF pre-emption grounds, they will likely face difficulty with their desire to protect their residential neighborhood from an invisible and undefinable harm, which is not a cognizable interest for purposes of standing. Standerwick, supra at 345. It cannot avoid being the "type of aesthetic sensibility insufficient to impart standing." Sheehan v. Zoning Board of Plymouth, 65 Mass. App. Ct. 52, 55(2005). III. THE PLAINTIFFS' CLAIMS ON THE MERITS FAIL ON THE LAW Even if one or more Plaintiffs can be found to have standing for one of their causes of action, none of their claims on the merits can clear the summary judgment hurdle. A. The Plaintiffs' Zoning Claim Must Fail The Plaintiffs' zoning appeal is based upon its legal claim that the term "pre-existent structure" as used in section Section 8.9.3(c)(5)(1)(v)(2) (See SMF¶22) refers only to "structures that were actually in existence and actually being used for wireless services facilities at the time" the bylaw provision was adopted. Plaintiffs' Complain¶69. Rather, they claim, it is a "new or existing structure for antenna mounting purposes and is governed by" the 600 foot setback. Id. ¶70. The Board had broad discretion in the exercise of its decision so long as it was not "based on a legally untenable ground, or unreasonable, whimsical, capricious or arbitrary." Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349, 355 (2001); Bransford v. Zoning Board of Appeals of Edgartown, 444 Mass. 852, 862 (2005). The Board's (and the Building Inspector's) issue. While industry works hard to present scientific evidence that it is safe, substantial reports raise red flags regarding adverse biological effects..."SMF¶32. 17 determination that the 600' setback did not apply to an interior installation on an existing structure was legally tenable because it was (a) a reasonable interpretation of the zoning bylaw and (b) in conformance with the Telecommunications Act. 1. The Plaintiffs' factual argument is wrong. The fatal problem with the Plaintiffs' argument is that it renders meaningless both the definition of"structure" contained in section 2.68 of the bylaw (SMF¶20) and the explicit and contrary language of Section 8.9.3(b)(i) of the bylaw, which states that, "If feasible, wireless service facilities shall be located on preexistent structures, including but not limited to buildings or structures... " SMF ¶21. To interpret the ambiguous provision of section 8.9.3(c)(5)(1)(v)(2) so as to void the clear meaning of section 8.9.3(b)(i) would violate the axiomatic rule that "[w]here two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." Livoli V. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921, 923 (1997). In addition, deference is given to a board's "reasonable interpretation" of its own bylaw, Id.; Eastern Point, LLC v. Zoning Bd. of Appeals, 74 Mass. App. Ct. 481, 486 (2009), especially where its interpretation avoids an absurd result. North Shore Realty Trust v. Commonwealth, 434 Mass. 109, 112 (2001). 2. The Board's interpretation avoids conflict with the Telecommunications Act. The Board could have been well justified in concluding that an application of the 600' setback to a fully-internal antenna installation would have no legitimate zoning-related basis. The proponents of that position—that it does apply to every wireless installation—certainly have made it apparent that their motivation is based upon the fear of health risk. Cf., Sprint Spectrum L P v Borough of Ringwood Zoning Board of Appeals, supra (attached at Exhibit R). Absent a 18 legitimate zoning-related justification for applying the setback provision, the Planning Board was well within its discretion to accept the Building Inspector's opinion. It is clear that the federal courts in this judicial district compel the building inspector and the planning board to interpret the North Andover Zoning Bylaw in a manner that is consistent with the Telecommunications Act. See, Nextel Communications of the Mid-Atlantic v. Town of Wayland, 231 F. Supp. 2d 396 (2002); Omnipoint v. Town of Lincoln, 107 F. Supp. 2d 108 (2000). Under than injunction, it is necessary that the zoning bylaw not be interpreted or applied so as to regulate wireless facilities on the basis of radio frequency emissions,Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 482 (1999) (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 (FCC). 47 U.S.C. § 332(c)(7)(B)(iv)), or in such a manner that it would effective prohibit MetroPCS from filling a significant gap in its coverage. Nextel Communications, supra at 406-407; Omnipoint, supra at 117. The town's own independent consultant confirmed in his report that MetroPCS did indeed have a coverage issue in North Andover, and that the alternative sites (whether or not they complied with the setback) did not solve the problem. B. The Plaintiffs Cannot Sustain a Private Nuisance Claim In order to set forth a valid cause of action for a private nuisance, the plaintiffs must show that the defendant's wireless installation will constitute a "substantial and unreasonable interference with the use and enjoyment of [their] property." Rattigan v. Wise, 445 Mass. 850, 856 (2006). An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the " 'gravity of the harm' caused thereby 'outweighs the utility' of the actor's 19 conduct." Ratti an, supra at 856-57, quoting Restatement (Second) of Torts supra at section 826(a). In order for a nuisance to be actionable, "[t]he injury or annoyance must have substantially interfered 'with the ordinary comfort . . . of human existence,' or have been substantially detrimental to the 'reasonable use [ ] or value of the property.' " Ratti an, supra at 856, quoting MetroRoulos v. MacPherson, 241 Mass. 491, 502 (1922). Mere rationality would compel a conclusion that, if the operation of a single, invisible wireless facility in a close community were to constitute an actionable nuisance, the wireless telecommunications infrastructure in any urban area would be doomed to defend countless lawsuits. Could it possibly be that the federal government would sell licenses (for billions of dollars) that would permit an entire industry to commit actionable torts against millions of its citizens? Of course not. The licensing of an activity by the government, and the doing of that activity in compliance with the government's regulation, cannot constitute an actionable tort. Czapski v. Sun Oil Co., 303 Mass. 186 (1939). It is beyond dispute that MetroPCS is licensed by the FCC to operate wireless telecommunications facilities in the North Andover community. It has demonstrated that the installation will be operated well within the limitations of the FCC's maximum radio frequency exposure limits. And it has obtained all applicable approvals from town, state and federal authorities to operate the facility. Where a party is "licensed by the proper public authorities to maintain such a [facility], the plaintiff cannot restrain as a nuisance the doing in a reasonable and careful manner of the very act licensed." Czapski v. Sun Oil Co., 303 Mass. 186, 21 N.E.2d 230 (1939). Hub Theatres Inc. v. Massachusetts Port Authority, 370 Mass. 153 (1976); Town of Hull 20 v. Mass. Port Auth., 441 Mass. 508, 518 (2004); Szeredy v. A. Duie Pyle, Inc., 23 Mass. L. Rep. 501 at 5 (2008); Allison v. Barberry Homes, 12 Mass. L. Rep. 138 at 11 (2000) (replication of wetlands in conformance with DEP order not a nuisance). The facts of this case are even more daunting to the abutters than to those in Littlefield v. Zoning Board of Appeals of Stow, 2007 Mass. Super. LEXIS 434 (2007), where the trial court dismissed the abutters' claims of nuisance in relation to the permitting of a free-standing 100' monopole, referred to by the plaintiffs as a"monstrosity." Id. at 1. See, Exhibit R. While the Littlefield plaintiffs' claim of nuisance was dismissed on the merits, their standing was not adjudicated.b However, here, where the proposed facility is undetectable, it is necessary to examine what particular interest, protected by the North Andover Zoning Bylaw or common law, is affected by the MetroPCS activity that would confer standing.There appears to be no provision of the bylaw that would address any of plaintiffs' concerns other than bylaw's general purpose: "the promotion of the health, safety, convenience, morals and welfare of the inhabitants." Complaint¶¶73-74. The Plaintiffs may only derive standing under such a clause (ephemeral as it may be) if it can be interpreted to extend to the regulation of radio frequency emissions. It is beyond reasonable debate that it cannot. G The case arose out of the board of appeals' upholding the building inspector's issuance of a building permit for a facility that was specially permitted pursuant to a federal court agreement for judgment. That special permit was not 21 C. The Plaintiffs Cannot State an Equal Protection Claim The Plaintiffs assert in their Complaint that their equal protection rights are violated because the Planning Board has denied them the same treatment as they have given the church in permitting a wireless facility to be installed in its steeple. The claim is patently absurd. "Equal protection does not prohibit differences in treatment where there is a rational basis for those differences reasonably related to the purposes which the [rule] seeks to accomplish." Goldman v. Dennis, 375 Mass. 197, 200 (1978). A rule will not be set aside on equal protection grounds "if any state of facts reasonably may be conceived to justify it."Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436, 446 (1983), quoting Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 541 (1974). First, there is nothing in the record to even hint that any of the Plaintiffs have sought (or would ever seek) to have a wireless facility on their property. Second, there is nothing in the record to suggest that any wireless carrier has sought permission from any of the Plaintiffs. And third, there is nothing to suggest that any of the Plaintiffs' properties contain a structure of such height that a fully-enclosed wireless facility is possible. It is obvious that the church property contains attributes that distinguish it from ordinary residential property and make it a natural location to be considered for a wireless facility. That said, there is nothing explicitly in the wireless zoning bylaw that distinguishes between a church steeple and the attic of a residential dwelling as far as how the permit granting authority would apply the bylaw. appealed;the plaintiffs waited until the building inspector issued his buildingpermit to bring their enforcement action. Id. at 3-4. 22 One indispensable element of a valid equal protection claim is that individuals who are similarly situated have been treated differently. Murphy v. Commissioner of the Dep't of Indus. Accs., 415 Mass. 218, 226, 612 N.E.2d 1149 (1993), S.C., 418 Mass. 165, 635 N.E.2d 1180 (1994) (stating that the Federal equal protection clause "essentially mandates that 'all persons similarly situated should be treated alike,"' quoting Cleburne v. Cleburne Living Ctr.. Inc., 473 U.S. 432, 439 (1985) . Sinn v. Selectmen of Acton, 357 Mass. 606, 611(1970) ("The equal protection requirement precludes irrational treatment of people similarly situated"). See also, Mahoney v. Board of Appeals of Winchester, 366 Mass. 228, 232-233 (1974) (Plaintiff abutters were not denied equal protection of the law by virtue of the approval of a 40B project on adjacent land). The argument that a single-family residence is similarly situated to a church with a I00'steeple is difficult to take seriously. D. The Plaintiffs' Spot Zoning Claim Is Meritless The Plaintiffs claim that the decision of the Planning Board granting a special permit to MetroPCS constitutes "spot zoning." "A special permit is granted pursuant to the literal language of the zoning regulations. It does not, in any sense, effect an amendment of the zoning ordinance. . . . [A planning board] is an administrative body which may be authorized to exercise quasi-judicial powers. It employs such powers when it receives and processes variance applications, and when it hears and grants or denies applications for special permits. It is a body without legislative authority. . . . As a special permit is not an amendment, it cannot constitute spot zoning." Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 156-157, quoting 3 R. Anderson, American Law of Zoning B 15.04 (1968). 23 There is no case to be made here that the Planning Board "singled out an individual parcel for unique zoning treatment." Durand v. I.D.0 Bellingham, LLC, 440 Mass. 45, 49 (2003). In fact, the zoning bylaw allows wireless facilities by special permit in every single zoning district, subject to the application of a series of considerations that apply on a case-by-case basis. The Appeals Court has described the problem with spot zoning as "'the singling out of a parcel for different treatment from that of the surrounding area, producing, without rational planning objectives, zoning classifications that fail to treat like properties in a uniform manner."' W. R. Grace & Co.-Conn, 56 Mass. App. Ct. at 570 (quoting Nat'l Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305, 312 (1990)). See Maniace. Board of Aldermen of Newton, 8 L.C.R. 172, 175 (2000). Cf., Hammond v. Town of Middleton, 5 L.C.R. 33 (1997). There are obvious rational planning objectives involved in the wireless bylaw's provision that allows wireless facilities in all zoning districts subject to special permit review by the Planning Board. Chief among them is the nearly universal acceptance of the preference that providers present to the town present the least visually intrusive alternative they can identify. Wireless installations don't get any less intrusive than the installation proposed here. IV. CONCLUSION There is no genuine issue of material fact in dispute in this action. The Defendant here challenges the presumed standing of all Plaintiffs and provides ample evidence in support of its challenge. The Plaintiffs pleadings and public testimony and statements demonstrate that their fundamental opposition to MetroPCS's special permit is based upon the impermissible grounds of RF emissions. They cannot provide any direct evidence to substantiating their claims of a violation of protected rights that would be necessary to establish themselves as "persons aggrieved." Because the Plaintiffs are not"persons aggrieved," they lack standing to challenge 24 the decision of the Board of Appeals. Whereas the Plaintiffs do not satisfy the fundamental jurisdictional requirement of standing, their claim must be dismissed. Even if standing is conferred on some ground, none of the Plaintiffs' legal claims can survive. For these reasons, Summary Judgment should enter in favor of all the Defendants and against all the Plaintiffs. Respectfully submitted, MetroPCS Massachusetts, LLC By its attorneys, Z� "?. b Peter B. Morin, BBO #355155A McDermott, Quilty & Miller LLP 131 Oliver Street, 5 t Floor Boston, MA 02110 617-946-4600 PMORIN@MQMLLP.COM 25 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT NO. 2009-559-C MARTHEA FOURNIER, et als. PLAINTIFFS V. JOHN SIMONS, et. als. DEFENDANTS STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION OF METROPCS MASSACHUSETTS, LLC FOR SUMMARY JUDGMENT The Defendant MetroPCS Massachusetts, LLC submits this Statement of Material Facts pursuant to Superior Court Rule 9A(a)(5). 1. MetroPCS Massachusetts, LLC operates a communications venture committed to providing wireless personal communications services ("PCS") by building wireless networks in specified markets across the United States under license purchased from the Federal Communications Commission ("FCC"). Affidavit of Frantz Pierre ("Pierre Aff."), attached to Motion of MetroPCS Massachusetts, LLC for Summary Judgment ("Mot. for Summ. J.") as Ex. A, at¶4. One of those market areas is in Eastern Massachusetts and includes the Town of North Andover. Id. 2. Mobile telephones using PCS technology operate by transmitting a radio signal to antennas mounted on a tower, pole, building, or other structure. Id. at¶ 5. Because the PCS system has a lower signal and a much higher frequency than traditional cellular technology, the range between the PCS mobile telephone and the antennas is limited, and the antenna must be placed at a sufficient height to achieve a"line of sight" between one antenna and the connecting antenna. Id. 3. In seeking an appropriate location for a cellular site, MetroPCS first seeks to identify existing structures, in order to minimize visual intrusiveness and to comply with the requirements of the zoning bylaw. Id. at¶9. 4. After conducting an extensive search of all areas, MetroPCS determined that the least intrusive means of providing wireless service was to install a facility within the interior of the existing church steeple at the Trinity Congregational Church, which is located in a residential zone. Id. 5. Because of the topography and tree canopy in the area, MetroPCS determined that antennas in the steeple at a centerline height of 80'feet in the residential zone would provide more reliable service than the only available alternative, which was the possible erection of a second tower at a height of 150' upon land owned by the town of North Andover known as the "Stevens Estate." Id. at¶ 10. 6. MetroPCS examined the Stevens Estate alternative and found that although it adequately linked to an existing South Lawrence facility, it nevertheless left a significant gap in coverage for a substantial portion of the residential neighborhood sought to be served with wireless service. Id. at¶ 11. This finding was supported by the independent consultant hired by the Planning Board to review MetroPCS's network design. Id.; North 2 Andover, Massachusetts Wireless Facility Analysis prepared by Mark F. Hutchins, Radiofrequency Engineer, for the Town of North Andover Planning Board, dated January 19, 2009 ("Wireless Facility Analysis"), attached to Affidavit of Mark F. Hutchins ("Hutchins Aff."), attached to Mot. for Summ. J. as Ex. H, at p.7 (paragraph 5g) and p. 9 (paragraph 7d). 7. There is one small area that the Stevens Estate location would provide coverage to that the church location does not. For that reason, MetroPCS would prefer to have installations at both locations. This is also the preference for one of MetroPCS's competitor's, T-Mobile USA. MetroPCS's conclusion was also supported by the independent consultant for the town. Id. at¶ 12; Wireless Facility Analysis,Ex. H at p.7 (paragraph 5g). 8. MetroPCS also examined the feasibility of two existing smokestacks located a short distance from the church steeple, but those structures were not available for leasing. Pierre Af£, Ex. A at ¶ 13. 9. MetroPCS's proposed facility comprises the installation of three panel antennas inside of the church steeple, hidden behind louvers designed to match the existing building components of the steeple. Cables would run down the inside of the steeple to an equipment room that is secured from entry by unauthorized persons. Id. at¶ 14. 10. MetroPCS submitted its proposed project to the Massachusetts Historical Commission under the National Environmental Policy Act, and after review, MHC determined that the proposed installation would have no significant impact on the historic interests protected by the Act. Report of Brona Simon, Executive Director of Massachusetts Historical Commission, dated February 19, 2009("Simon Report"), attached to Mot. for Summ. J. as Ex. C. 11. MetroPCS demonstrated by competent expert testimony and documentary evidence that its proposed facility complies with the regulatory standards of the Federal Communications Commission with respect to radio frequency emissions (RFE) exposure limits. Report of Donald L. Haes, Jr., Ph.D., CHP, dated November 11, 2008 ("Haes Report"), attached to Affidavit of Donald L. Haes, Jr., Ph.D. ("Haes Aff."), attached to Mot. for Summ. J. as Ex. D, at pp. 1, 11; Wireless Facility Analysis, Ex. H at p. 1 (paragraph 1 c) and p. 8 (paragraph 6b). 12. MetroPCS's proposed installation will be undetectable to human sight and hearing from the property lines of 70 Elm Street. Pierre Aff., Ex. A at¶ 17; Noise Study prepared by Noise Control Engineering, Inc. for Hudson Design Group, LLC, dated November 17, 2008 ("Noise Study"), attached to Affidavit of Michael Bahtarian ("Bahtarian Aff."), attached to Mot. for Summ. J. as Ex. E, at p. 3. 13. MetroPCS submitted a report prepared by a licensed real estate appraiser that analyzed comparable property sales for existing antenna installations within church steeples and found that there was no impact on the sale prices of properties proximate to the facilities. Site Specific Cellular Communications Installation Analysis prepared by William J. Pastuszek, Jr., MAI, SRA, MRA, dated February 10, 2009 ("Pastuszek Analysis"), attached to Affidavit of William J. Pastuszek, Jr. ("Pastuszek Aff."), attached to Mot. for Summ. J. as Ex. F, at pp. 12-13. 4 14. On March 3, 2009, the Planning Board granted MetroPCS's application for a special permit. Notice of Decision of the Town of North Andover Planning Board, dated March 3, 2009 ("Notice of Decision"), attached to Mot. for Summ. J. as Ex. G. The Town's Expert Consultant 15. The Planning Board retained the services of a wireless consultant, Mark Hutchins, to review the MetroPCS application and proposed installation, along with all of the applicant's technical data relating to RF emissions and alternative site analysis. Hutchins Aff., Ex. H at¶ 5. 16. Hutchins submitted a report and appeared at the January 27, 2009 hearing to discuss his findings. Minutes of the Meetings of the Town of North Andover Planning Board Held on December 2, 2008, January 6, 2009, January 27, 2009, February 24, 2009, and March 3, 2009 ("Meeting Minutes"), attached to Mot. for Summ. J. as Ex. I, at pp. 20-21. 17. Hutchins report found that "technical studies supplied by the applicant, and corroborated by independent modeling, indicate that the proposed facility is a necessary network component within the Town of North Andover." Wireless Facility Analysis, Ex. H at p. 1 (paragraph 1 a). 18. Hutchins report found that"the proposal meets the Town of North Andover Zoning Bylaw goals and requirements relating to RF engineering issues...[e]ven with utilization of other existing structures as planned by the applicant for its network, there will still be an area in the vicinity...of the church with inadequate coverage unless the proposed facility...is employed. Id. at p. 1 (paragraph lb). 5 19. Hutchins report found that the applicant's antennas will be "concealed within the structure," that "[c]umulative RF radiation is certain to be within FCC guidelines for human exposure, as long as antenna access is restricted," and that "it can be assumed that the applicant will comply with FAA/FCC height and marking regulations" Id. at p. 1 (paragraph 1 c). The North Andover Wireless By-law 20. Section 2.68 of the North Andover Zoning Bylaw defines a"structure" as follows: A combination of materials assembled at a location to give support or shelter that is safe and stable, which includes, but is not limited to the following: buildings, stadiums, tents, reviewing stands platforms, staging, observation towers, radio towers, water tanks, towers, private and public swimming pools, trestles, piers and wharves, bridges, sheds, shelters, fences and walls, display signs, and storage trailers or units, whether intended for permanent or temporary purposes, used for storage of goods and products associated with the operations of any business on the subject parcel(s), and remain in any relatively fixed location. The term structure shall be construed as if followed by the words "or part thereof', but shall not include underground utilities, driveways, parking lots, agricultural storage trailers and vehicles, and the like. Where the North Andover General and Zoning Bylaws are silent, then the current edition of the Massachusetts Building Code shall be assumed to apply. Excerpts from Town of North Andover Zoning Bylaw("Zoning Bylaw"), attached to Mot. for Summ. J. as Ex. Q, at p. 2. 21. Section 8.9 subsection (3)(b)(i) of the Zoning Bylaw states as follows: b) Location: Applicants seeking approval for wireless service facilities shall comply with the following: i) If feasible, wireless service facilities shall be located on preexistent structures, including but not limited to buildings or structures, preexistent telecommunications facilities, utility poles and towers, and related facilities, provided that such installation preserves the character and integrity of those structures. In particular, applicants are urged to consider use of preexistent telephone and electric utility structures as sites for one or more wireless service facilities. The applicant shall 6 have the burden of proving that there are no feasible preexistent structures upon which to locate. Id. at p. 4. 22. Section 8.9.3(c)(v)(1) of the Zoning Bylaw states as follows: v) Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. In addition, the following setbacks shall be observed. (1) In order to ensure public safety, the minimum distance from the base of any ground-mounted wireless service facility to any property line, shall be 2x the height of the facility/mount, including any antennas or other appurtenances. This set back is considered the "fall zone". A minimum setback of 600 feet shall be required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which are either zoned for, or contain, residential and or educational uses of any types. (2) 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. Id. at p. 5. The Building Inspector's Interpretation of the Wireless Bylaw 23. In a letter to the Planning Board dated December 3, 2008, the North Andover Building Inspector opined that the six hundred foot setback mentioned in section 8.9.3(c)(v)(1) did not apply to the MetroPCS installation at the Trinity Church for two reasons: (a) because "the proposed antennas will be installed within the existing church spire," and (b) because the church spire is a pre-existent structure. Correspondence from Gerald A. Brown, Inspector of Buildings and Zoning Enforcement Officer for the Town of North Andover Building Department, dated December 3, 2008 ("December 3, 2008 Correspondence from Brown"), attached to Mot. for Summ. J. as Ex. O. 7 The Standing of the Plaintiffs 24. The Plaintiffs Lizetta Fennessey, Aaron Pertus and Dagmar Schnellinger, reside at 77, 62 and 83 Elm Street, respectively, and are therefore statutory "parties in interest." 25. The Plaintiffs Marthea Fournier and Lauretta Wentworth are not abutters, or abutters to abutters within 300 feet of the church property, and are therefore not parties in interest. Lizetta Fennessey 26. A January 22 news article in the North Andover Citizen contains the following: Elm Street resident Lizetta Fennessy said, "Anyone can say they value the neighbors, but where is the action that supports it? In 2000, the church's actions indicated that it values the neighbors; they voted against the cell tower, in part due to consideration of the neighborhood objections." Fennessy said the neighbors want a chance to inform the congregation of the long- term health risks involved with living under a cell tower, and to request that they vote not to install the tower. News Articles Regarding Wireless Application, attached to Mot. for Summ. J. as Ex. K, at p. 10 27. At the January 27, 2009 public hearing, Ms. Fennessey stated that she lives 50 feet away from the church property. She stated that it was the intent of the wireless bylaw committee that all wireless antennas, not just tower, be kept at least 600 feet from homes and people. She stated that a variance was required from this setback, and the applicant must go to the Board of Appeals. Meeting Minutes, Ex. I at p. 22. 8 28. A March 20, 2009 news article in the Lawrence Eagle Tribune contains the following: Neighbors are going to court to appeal the Planning Board's decision. Their appeal is due by March 25, said Liz Fennessy, one of those opposing the antenna. Fennessy lives diagonally across from the church and has three children, ages 7, 5 and 2. "Your choice, our kids health," says the sign in her front yard. "It's very stressful having to deal with it," she said. "The church can't prove its safe, so we have to live with the risk so they can save their dying church." News Articles Regarding Wireless Application, Ex. K at p. 15. 29. At the March 3, 2009 public hearing, James Fennessey, husband of Lizetta, stated that his daughters were being put to sleep about 65 feet away from where the church has decided to put cell phone antennas. Meeting Minutes, Ex. I at p. 44. 30. At the February 24, 2009 public hearing, Ms. Fennessey presented information regarding the history of the 600 foot setback in support of her position that a variance was required for the church steeple installation. Meeting Minutes, Ex. I at pp. 31-32. Aaron Pertus 31. A March 20, 2009 news article in the Lawrence Eagle Tribune contains the following: The bottom line, according to residents interviewed, is that neighbors don't know what the long-term effects of living so close to a cell antenna will be. "I don't want to find out years down the road, 'Guess what guys, you know those cell towers? There's a problem.' We really don't want to be part of their experiment," said Aaron Pertus, 39, of 62 Elm St. Pertus lives next to the church. He has a white banner on his front lawn, facing the church entrance, saying, "PLEASE DON'T PUT A CELL TOWER 40 FEET FROM OUR BABY'S CRIB." Pertus works as an electronics technician for Verizon, but he works in its land line division, he said. His daughter turns 2 next month. The family is "seriously considering" moving, Pertus said. 9 News Articles Regarding Wireless Application, Ex. K at pp. 13-14. Dagmar Schnellinger 32. At the January 27, 2009 public hearing, Schnellinger testified that she lives 60 feet from the church property. She stated that she was submitting an affidavit of appraisal that concluded that the price of a home would be limited due to the presence of the cell phone antennas and that there would be a health risk. Meeting Minutes, Ex. I at p. 21. 33. A January 22 news article in the North Andover Citizen contains the following: Neighbor Dagmar Schnellinger of Elm Street thinks a meeting would be a more effective method of allowing their concerns to be heard by the congregation. "I think a one-on-one would be better than a book with letters from the neighborhood that anybody can look at but nobody does. "1 just wish this whole thing would go away. They could find a place for the cell tower where it wouldn't impact anybody's health and the church would get their money somewhere else," said Schnellinger. News Articles Regarding Wireless Application, Ex. K at p. 9. Marthea Fournier 34. At the December 2, 2008 public hearing on MetroPCS's application, Marthea Fournier testified that there is a ten to thirty percent devaluation in property value once a cell tower is introduced to a neighborhood, and that the 600 foot setback should be applied to the installation, whether it was in a church steeple or not. Meeting Minutes, Ex. I at p. 6. 35. A December 11, 2008 news article in the North Andover Citizen contains the following: Church neighbor Thea Fournier—who has opposed the town in the past due to possible infractions of the town's wireless bylaw by allowing such facilities within a residential area said the World Health Organization study was funded 10 by the wireless industry. Fournier works as a nutritionist and environmental health consultant. She said to the group, "We are hearing from the industry tonight. Just like the tobacco industry hid the truth and the asbestos industry hid the truth." News Articles Regarding Wireless Application, Ex. K at p. 2. 36. Ms. Fournier authored a letter to the editor, published in the North Andover Citizen on December 18, 2008, which includes the following statements: • "A bad gamble for the neighbors' health and wellness, property values and the loss of their historic bell." • "Aesthetics and property devaluation are just by-products of the main concern. At its core, radio frequency radiation is a medical issue. While industry works hard to present scientific evidence that it is safe, substantial reports raise red flags regarding adverse biological effects, i.e., increases of cancer, cell damage, abnormal behavior and DNA damage (www.bioinitiative.org)." Letters to the Editor of Marthea Fournier, attached to Mot. for Summ. J. as Ex. L, at p. 4. 37. At the January 27, 2009 public hearing, Ms. Fournier stated her desire that the Board of Selectmen release a request for proposals for a second tower to be built at the Stevens Estate, and she expressed dissatisfaction that the Board of Selectmen would not do so. Meeting Minutes, Ex. I at p. 23. 38. At the January 27, 2009 public hearing, Ms. Fournier cited the legal opinion of Attorney Edward Collins that the 600 foot setback requirement applied to the proposed antennas. Id. at p. 24. 39. Ms. Fournier authored a letter to the editor, published in the North Andover Citizen on February 13, 2009, which includes the following statement: "The neighbors are worried, with good reason, that their properties will be devalued and their health put at risk, as well as the health of those people in the church and children attending the preschool." �t Letters to the Editor of Marthea Fournier, Ex. L at p. 3. 40. At the February 24, 2009 public hearing, Ms. Fournier criticized the town's public agents for not adhering to the requirements of the bylaw that would require a variance from the 600 foot setback, and further restated her position that the applicant should go to the Stevens Estate. Meeting Minutes, Ex. I at p. 33. 41. At the February 24, 2009 public hearing, Ms. Fournier further stated that the "Telecommunications Act allows for the imposition of setbacks, and that the federal First Circuit Court requires the applicant to prove the site is in the right place and there are no alternatives. Ms. Fournier further stated that she does not believe that the federal law prohibits regulation of wireless antennas based on health effects because the law states "environmental effects." She further stated that the courts of France have banned cell antennas based on health risks and that"we don't want this kind of business in the middle of our neighborhood" and she wants her rights protected. Id. at pp. 34-35. 42. At the February 24, 2009 hearing, Ms. Fournier further stated that she expects the Planning Board as leaders of the town to "uphold our rights," otherwise she doesn't know why they're there. She further stated that she doesn't back down, she didn't back down when she went to court against T-Mobile even though she didn't have the town leaders backing her up. She stated that she feels bad when "we don't have a Town that has the balls to stand up for its residents." Id. at p. 35. 43. Ms. Fournier authored a letter to the editor, published in the North Andover Citizen on March 20, 2009, which includes the following statement: • Over 10 years ago, when the wireless corporations first came calling to twice ask the church to agree to house cell antennas, our two former ministers (who preceded the current interim minister) both chose not to 12 allow these corporations to do business in our religious home. The ministers walked the walk after listening to the concerns of parishioners and neighborhood families opposed to cell antennas. These ministers were sensitive to their concerns about property devaluation and possible health and safety impacts. • It is sad to witness a once-vibrant church that cared about its neighbors and all of its membership blinded by telecom money. Although the church leadership was given comprehensive information and the names of non- industry experts, it is clear they did not want untainted information that would not comport with what they needed to believe about cell antennas. Not knowing the real adverse impacts of cell antennas gets you off the hook, doesn't it? The church's leaders have bought the wireless companies' self-serving propaganda and paraded its industry representatives. That was the leadership's choice, but their active and passive control of the kind of information they provided parishioners was unconscionable. Letters to the Editor of Marthea Fournier, Ex. L at pp. 1-2. 44. Ms. Fournier is a member of the North Andover Wireless Bylaw Review Committee that is charged with recommending revisions to the wireless zoning bylaw. Meeting Minutes, Ex. I at p. 37. 45. On or about October 29, 2008, town counsel for the Town of North Andover transmitted a Memorandum to the Wireless Bylaw Review Committee which provided his comments on the committee's draft revisions to the wireless bylaw. Memorandum of Thomas J. Urbelis, Esq., Town Counsel for the Town of North Andover, Massachusetts, to Wireless Bylaw Review Committee, dated October 29, 2008 ("Town Counsel's Memorandum"), attached to Mot. for Summ. J. as Ex. M. 46. Town counsel's memorandum indicates that the Committee's draft provided for an increase in the setback required for wireless facilities from 600 to 800 feet from any lot containing a dwelling, school, daycare center, nursing home or assisted living facility. Town Counsel's Memorandum, Ex. M at p. 3. 13 47. Town counsel's memorandum indicates that the Committee's draft provided for the deletion of bylaw language that excluded attachment of wireless facilities to pre- existent structures from the 800 foot setback requirement. As a result, the Committee recommended that all wireless facilities, including those attached to existing buildings, or those installed completely within an existing structure, must meet the 800' setback referred to in the preceding paragraph. Id. at p. 5. 48. Town counsel's memorandum pointed out to the Committee that the Supreme Judicial Court has said"there may be no regulation of facilities on the basis of environmental effects of radio frequency emissions, other than as required by the Federal Communications Commission," and asked the Committee "what is the justification for deleting the current bylaw provision and imposing an 800 foot setback?" Id. 49. Town counsel's memorandum indicates that the Committee's draft provided for the application of the new 800' setback to the collocation of new wireless antennas on pre-existing wireless tower facilities, and informed the Committee that "[a]n applicant and Court could appropriately ask what rationale and justification would the ...Board...have in requiring compliance with the 800 foot setback and other requirements in denying such an antenna on a previously approved tower?" Id. at pp. 5-6. 50. Town counsel's memorandum indicates that the Committee's draft provided for the imposition of fines against carriers. Town counsel pointed out that in previous meetings with the Planning Board and Board of Selectmen, at which advocates demanded that fines be imposed upon carriers, the advocates were asked to submit authority for the legality of imposing such fines to the Town Manager, and that such authority was not produced. Town counsel further pointed to existing legal decisions which "raise serious 14 question as to whether such fines...are enforceable in light of the Federal Act." Town Counsel's Memorandum, Ex. M at pp. 7-8. 51. On March 16, 2009, the Wireless Bylaw Review Committee held a public meeting with the Planning Board, the purpose of which was to discuss the Committee's version of proposed changes to the Wireless Bylaw. Meeting Minutes, Ex. I at pp. 51-57. 52. Minutes of the meeting indicate that the Committee had failed to provide a draft bylaw in time for it to be included on the town meeting warrant, and as a result,the Planning Board drafted its own proposed changes. Id. at p. 51. 53. Minutes of the meeting indicate that the Committee and Board members discussed the difference between the Board's draft and the Committee's draft. Id. 54. Minutes of the meeting indicate that the Committee's draft seeks to continue to apply the 600' setback to residences and schools and the Planning Board's draft seeks to exclude wireless attachments to existing structures. Id. 55. Minutes of the meeting indicate that the Committee's draft seeks to impose fines upon carriers. Id. at pp. 52-53. 56. Minutes of the meeting indicate that the Committee's draft seeks to impose the existing 600' setback on collocations to existing buildings and non- telecommunications structures such as church steeples. Id. at pp. 53-54. 57. Minutes of the meeting indicate that the Committee's chairman sought to defend the application of the 600' setback to collocations by referring to "property values," stating that "property value isn't born of visual impact or noise; decline in property value by itself is substantial evidence for denial of a permit." Id. at p. 54. 15 58. Minutes of the meeting indicate that Marthea Fournier defended the setback provision: "we don't get sued for having setbacks. Attorney Ginsberg was clear in giving reasons for setbacks. Courts don't prohibit setbacks. It's a matter of whole bylaw prohibits provision of wireless service communications. Issue is there is significant gap in coverage? Wireless people go to court and find there are alternative sites they can use to uphold their setbacks." Id. Lauretta Wentworth 59. At the December 2, 2008 public hearing on MetroPCS's application, Lauretta Wentworth testified that she is a real estate agent, that the average consumer is concerned about health issues, and that the proposed installation will have an effect on property values. Meeting Minutes, Ex. I at p. 7. 60. A January 22, 2009 news article in the North Andover Citizen contains the following: Lauretta Wentworth of 15 Pleasant St. criticized the quality of the meeting. "The meeting at the church on the 8th of December had only one expert, representing the cell company, and only one point of view regarding this controversy was presented. Since the dangers are not known and won't be known for years to come, the neighbors and the members of the church and all residents should be provided with both points of view," she said. News Articles Regarding Wireless Application, Ex. K at p. 8. 61. At the January 27, 2009 public hearing, Wentworth testified that she lives 276 feet from the church, that as a mother and grandmother, she was worried about future generations, and that the neighbors of the church would be exposed to RF emissions 24/7. She stated there would be a negative effect on property values. She stated that a "complete market analysis" concluded that a $665,000 home at 65 Elm Street would lose 16 $20,000 in value if a cell tower is located so close to their property. Meeting Minutes, Ex. I at p. 21. 62. Wentworth submitted an affidavit from appraiser Robert Noone that provided his opinion that the presence of cell antennas would negatively impact property values. Id.; see Affidavit of Robert Noone ("Noone Aff.") and Statement of Lauretta Wentworth, attached to Electronic Mail Correspondence from Judy Tymon, AICP, Town Planner for the Town of North Andover ("Tymon Email"), dated January 28, 2009, attached to Mot. for Summ. J. as Ex. N. 63. Noone's Affidavit was prepared by him in connection with an appeal filed by Marthea Fournier against the Planning Board and T-Mobile USA in 2002 after the Board approved a special permit for antennas to be attached to the exterior of a smokestack located at One High Street, a different location from that at issue in this case. Noone Af£, Ex. N at T¶2-5. 64. The two bases of Noone's conclusion were the visibility of the antennas on the smokestack and the fear of adverse health effects. Id. 17 65. At the February 24, 2009 public hearing, Ms. Wentworth stated her belief that a real estate agent has an obligation to divulge anything that would affect the consumer such as high tension power lines and cell phone antennas, if it could be a deterrent to the buyer's decision to purchase the property. She submitted a letter for the record and requested a continuance so that she could submit information on property values. Meeting Minutes, Ex. I at p. 31. Respectfully submitted, MetroPCS Massachusetts, LLC By its attorneys, Peter B. Morin, BBO #355155A McDermott, Quilty & Miller LI.P 131 Oliver Street, 5`" Floor Boston, MA 02110 617-946-4600 PMORIN@MQMLLP.COM 18