HomeMy WebLinkAbout2012-05-23 Planning Board Supplemental Materials (59) Town of North Andover
Office of the Planning Department
Community Development and Services Division
1600 Osgood Street
North Andover, Massachusetts 01845
NOTICE OF DECISION - DRAFT
Any appeal shall be filed
within (20) days after the
date of filing this notice in
the office of the Town Clerk.
Date: May 23, 2012
Date of Hearings: March 20, 2012, April 3, 2012,
May 1, 2012
Date of Decision: May 23, 2012
Application of: MetroPCS Massachusetts, LLC c/o New England Wireless Solutions, LLC
Premises Affected: 70 Elm St.
Map 42, Parcel 2
Referring
to the above petition for a renewal of a Wireless Special Permit according to 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 renewal of a Special Permit to continue to maintain and operate wireless communications equipment on an existing structure
located at 70 Elm Street. The Special Permit was originally granted by the North Andover Planning Board on March 5, 2009.
Upon a motion by X and a 2nd by X, the Planning Board hereby
APPROVES the renewal of a Wireless Special Permit, by a vote of X in favor and 0 against.
___________ ___________
On behalf of the North Andover Planning Board
John Simons, Chairman
Michael
Colantoni
Dave Kellogg
Richard Rowen
The Planning Board herein approves the renewal of the Special Permit to continue operation of the Wireless Communications Equipment, on an existing structure located at 70 Elm St., and
ancillary equipment located inside an existing structure. The renewal of the Special Permit was requested by Bill McQuade, Agent for MetroPCS Massachusetts, LLC. This application and
additional documentation as cited herein was filed with the Planning Board on February 21, 2012, with subsequent submittals on file. The applicant submitted a complete application which
was noticed and reviewed in accordance with Sections 8.3, 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 of the North Andover Zoning Bylaw Section 8.9:
FINDINGS OF FACT:
The renewal application meets the filing requirements of the Wireless Service Facilities
By-law Section 8.9.12. The applicant has demonstrated that the proposed wireless facility is in compliance with FCC regulations regarding Maximum Permissible Exposure (MPE) limits, as
indicated by the reports provided by the applicant, dated November 30, 2011, authored by David C. Cotton, Jr. of SiteSafe. The conclusion stated in the reports is that the applicant’s
Wireless Facility installation, combined with the OmniPoint installation at the same facility, contributes a maximum RF exposure of less than five percent of the current Federal permissible
exposure guidelines.
The Site Compliance Report written by SiteSafe and submitted by the applicant was reviewed by the town’s consulting RF engineer, Mark Hutchins. In letters dated
March 16, 2012 and March 31, 2012, Mr. Hutchins stated that the measured levels of RF Emissions are within compliance with FCC guidelines.
In addition to the SiteSafe RF Compliance
Study, the applicant submitted a Noise Study from Noise Control Engineering, dated February 16, 2012 and a structural assessment from Hudson Design Group, dated February 12, 2012. Both
studies confirmed that the installation is in compliance with the town’s requirements under section 8.9 of the town of North Andover Zoning Bylaw.
The Federal Telecommunications Act
of 1996 takes precedence over the North Andover Zoning Bylaw. In the recent Essex County Superior Court case of Fournier, et al. v. North Andover Planning Board ,et al., the Plaintiffs'
(neighbors of the wireless facility) challenge to this Board's action in granting a special permit was on the basis of a 600 foot setback provision in the zoning bylaw, and in dismissing
that case, the Court was clear that the 600 foot setback did not control because the Court found that the Federal Telecommunications Act of 1996 “compelled” (the Court's word) this Board
to grant the special permit. Similarly, in the context of this particular application where the applicant has filed
satisfactory current technical reports and otherwise filed sufficient information to the Board's satisfaction, if this Board were to deny the special permit here the Board would, in
the words of the Federal Telecommunications Act of 1996, be taking actions that “prohibit or have the effect of prohibiting the provision of personal wireless services” and this Board
has no intention of violating that federal law.
Finally the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed
in Section 8.9 but requires conditions in order to be fully in compliance. The Planning Board hereby grants an approval to the applicant provided the following conditions are met:
SPECIAL
CONDITIONS:
Discontinuance Abandonment
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.
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:
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.
Proper disposal of the waste materials generated by the carrier from the site in accordance with local and state solid waste
disposal regulations.
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.
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.
Upgrades:
Any upgrades to the equipment to be installed
on the tower would require a new
structural report to be submitted to the Planning Board for review.
Annual Certification:
Annual certification demonstrating continuing compliance with the standards of the Federal
Communications Commission, Federal Aviation Administration and the American National Standards Institute, if required by those agencies, shall be filed with the SPGA by the Special Permit
holder.
Term of Special Permit:
Pursuant to Section 8.9.12.a of the Town of North Andover Zoning Bylaw, a Special Permit issued for this wireless service facility shall be valid
for three (3) years from the date of the decision for the Special Permit renewal. 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.
Pursuant to Section 8.9.8.a of the Town of North Andover Zoning Bylaw, the applicant shall submit to the SPGA at
annual intervals from the date of the decision for the Special Permit renewal, preexistent and current RF measurements. Such measurements shall be signed and certified by an RF engineer,
stating that RF 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) RF Filing
Requirements of this Bylaw. The measurements shall be submitted for both the applicant and all co-locators. If the applicant fails to comply with this requirement, the Special Permit
will be revoked, until such time that the installation is brought into compliance with FCC Guidelines.
Pursuant to Section 8.9.8.b of the Town of North Andover Zoning Bylaw, the applicant
shall submit to the SPGA at annual intervals from the date of decision of the Special Permit renewal, 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.
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.
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.
The
following information shall be deemed part of the decision:
Application Titled: Application for Special Permit Renewal
Metro PCS Massachusetts, LLC
c/o New England Wireless Solutions,
LLC
17 Indian Trail
York, ME 03909
Documentation Submitted:
Roof-Top Communications Site Lease Agreement; Lessor: Trinitarian Congregational
Church of North Andover, Lessee: MetroPCS Massachusetts, LLC a Delaware limited liability company.
MetroPCS Massachusetts, LLC & Trinitarian Congregational Church of North Andover
Notice of Decision dated March 3, 2009
Structural Assessment Letter, dated February 12, 2012, prepared by Hudson Design Group LLC.
Noise Study, dated February 16, 2012, prepared by
Noise Control Engineering, Inc.
RF Site Compliance Report, dated November 16, 2011, prepared by Sitesafe.
Site Plans titled “MetroPCS Unlimit Yourself BOS0380C Trinitarian Congregational
Church 70 Elm Street, North Andover, MA. 01845 Essex County”. Sheets T-1, GN-1, C-1, A-1, A-2, A-3, S-1, E-1, E-2, M-1. Dated 4/1/09 and 4/14/09.
CC: Abutters
Applicant