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HomeMy WebLinkAboutMiscellaneous - 70 ELM STREETPETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY & MILLER LLP 131 OLIVER STREET 5s' FLOOR BOSTON, MA 02110 781-985-0789 tel. 866-380-6570 fax PMORINQMQMLLP.COM October 12, 2009 Ms. Joyce Bradshaw, Town Clerk Town of North Andover 120 Main Street North Andover, MA 01845 Re: MetroPCS Massachusetts LLC v. Fennessey et als. Dear Ms. Bradshaw: Please take note that MetroPCS Massachusetts LLC has filed an action in the Massachusetts Land Court pursuant to G. L. c. 40A § 17 challenging the Notice of Constructive Approval filed with your office on September 21, 2009 by Lizetta Fennessey. A copy of the Complaint is enclosed herein Very truly yours, /S/ Peter B. Morin R CEIVED Torn: CLERK'S OFFICE TOWN OF NORTH ANDOVER 2009 SEP 21 AM 11: 47 ZONING BOARD OF APPEALS Tu, r'1}: of- NORTH FNORTH ANDOVE" Properly Owner & Location: MASSACHUSETTS Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OF PROCEEDING: Appeal from a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetmPCS Massachusetts, LLC (MetroPCS) or Trinitarian Congregational Church to install and operate wireless communication facilities on a residentially zoned property with less than the 600' setback between such facilities and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(c)(v) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(c)(v).. The North Andover Building Commissioner granted a building permit (#628) to MetroPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Lizetta M. Fennessy, 77 Elm Street, North Andover, filed an appeal with the Zoning Board of Appeals on May 28, 2009. She claimed, inter alfa, the Decision of the North Andover Building Inspector/Zoning Enforcement Officer, Gerald A. Brown, that the 600' setback requirement of Section 8.9.3(c)(v) of the Zoning Bylaw did not apply to the MetrPCS/Trinitarian Congregational Church application for a building permit and that accordingly no variance from that requirement by the Zoning Board of Appeals was required before he could lawfimlly issue a building permit. She also claimed that the Building Inspector/Zoning Enforcement Officer wrongfully issued a building permit (#628) to MetmPCS and Trinitarian Congregational Church in violation of Section 8.9.3(cxv) of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, provides that "[t]he decision of the board [of appeals] shall be made within one hundred days after the date of the filing of an appeal, application or petition ... "and that "failure by the board to act within said one hundred days ... shall be deemed to be the grant of the appeal, application or petition." Section fifteen also refers to "approval [of petitioner's appeal] by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Andover Town Clerk on or before September 5, 2009 (100 days after the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September 5a' being the Saturday of the Labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings "that the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit #628 granted 5/18/09 on the basis that no variance was granted for the 600 ft. setback required per 8.9.3(c)(v) of the bylaw." "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... 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." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice specifies, as here, that appeals, if any, of this claimed constructive approval shall be made pursuant to Massachusetts General Laws, chapter 40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21, 2009. L M. Fennessy Petitioner DECLARATION OF SERVICE I, Lizetta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, first-class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Service List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. Jze.— . Fenn easy Petitioner SERVICE LIST See attached list of addressees and addresses. Albert P. Manzi III, Esq. 24 Main Street North Andover, MA01845 Ellen P. McIntyre 23 Tanglewood Lane North Andover. MA 01845 Richard J. Byers, Esq. 97 Forest Street North Andover. MA 01845 Joseph D. LaGrasse 140 Sugarcane Lane North Andover. MA 01845 Richard M. Vaillancourt 454 Stevens Street North Andover. MA 01845 Thomas D. Ippolito 430 Osgood Street North Andover. MA 01845 Peter Morin, Esq. McDermott, Quilty, & Miler, P.C. 21 Custom House Boston, MA 02110 SERVICE LIST Daniel S. Braese, Esq. 21 Periwinkle Way North Andover, MA 01845 Michael P. Liporto 74 Heath Road North Andover. MA01845 Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Planning Board Town of Boxford 7A Spofford Road Boxford, MA 01921 Planning Board Town of Andover -Town Offices 36 Bartlet Street Andover, MA 01810 Planning Board City of Haverhill - City Hall 4 Summer Street (Room k 201) Haverhill, MA 01830-5843 MetroPCS Massachusetts, LLC 285 Billerica Road Chelmsford , MA 01824 Page 1 of 2 Planning Board Town of Middleton Memorial Hall 48 South Main Street Middleton, MA 01949 Zoning Board of Appeals 235 North Street North Reading, MA 01864 Planning Board City of Lawrence City Hall 200 Common Street Lawrence, Massachusetts 01840 Zoning Board of Appeals City of Methuen - Quinn Building 90 Hampshire St., Methuen, MA 01844 Gerald A. Brown Zoning Enforcement Officer Town of North Andover 1600 Osgood Street North Andover, MA 01845 Thomas J. Urbelis, Esq. Urbelis & Fleldsteet, LLP 155 Federal Street Boston, MA 02110-1727 S6ev,CE �r ST M N., , BMI . I , fmrwnan , J l I , PAGE 2 of 2 l e ba¢RYe PM � a1 This certifies that the names eppearhtg on the recordsof the Assessor; Office as of Haw r, aoog _ Certified by: ���Data $T�u/off snenA swrt�arw,m"e�ruaabe�.ba Mop 42 Pp 2 TMbmn G Qmi,,Ycnel cmmN &8 72 EIm Soom Nall MEovor. MA 01.5 vap moor Pte' N50ffi aw.. 41 9 Brom MmcMl Funwl Nae, LLC Y37 Me1MnrF SomA NOM MEww. MA 01845 41 10 N MC 5239 WWr StrM N Amohw.IM 0IM 41 11 HaMd WO. WWaNr Steel NOMN mr. MA 01845 41 13 HmId NUT4. WWMBr Sheol NOMM ,MA 01M5 41 14 JMn Dmwy &RgeMAvenw HeN mll MA 01832 41 18 R.0 GrYq 11 Mo... S. Nall Mduw MA 01W 41 10 90 Gery HodBwa 59CmoN Smhot NmIM1Mdww.M401M5 41 2,00611CeteM P-61 C0uM Emco NOM Mdmr MA 01M 41 2M81A Cm,. Pnm 61AGWmh StleM Nom, NMmer. MA 01&5 41 12 J.R. Vemio BB WMr Strew Nall NMmer. MA DIM 41 tl OOMd COM 531 B Roed Hm,Mll, MA DIM 41 M Oer SlwPmM ryl 61CHUM Spell NVIN ommr, NA DIM 41 481p4B0 Moh Bektl 49 droll Spell NoNMdeve, IM 01W 41 0000510 T.mJo. PnluW 51 ch. 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MA 0im 42 8 JOM Mmgn 230 GeNen S— Norm Ar6 Ner. MA 01 M5 42 35 SMI Chr l oGWm Sham NOM Mdover. FM DIMS 42 12 CMbMpM l Not, v CNmd, S. NwN M. NIA 01006 42 13 Ae,pn PmMa 02 Elm 51mN NOM..r.MA 01 M5 42 14 JWnC. DoElm SheA NOM And, MA 01M5 42 1510N.0 BMGmdhue MB Elm 6.1 NmN Allover. IM 01 M5 42 15W33.F Midool". MF Elm S. NmN Nkoror, MA 01 M5 42 10 Hae. S.. 46 EIm SpM Nam Mdmr. IM 01005 42 17 Hmeo, SY.. 48 EIm S. Nam M.Ner. NIA 0IM5 42 20 Maid EYOI 2N Mom Sp.1 Norm M*Nhor MA 01005 R 21 BMn qty MBmNflMf RON NMwm,MA 01BIO 42 n Gomlcpher Nbn 45EM8peM Norm MBwa, MA 01M5 42 N Mo,k OpwIXO 9PIaow654eN NOm, Mdovm. tM 01M5 55 1 V..L.m. ,0 Caul Steel NMh Mmm'w. MA DIM 0 6 Tlmol MNM 65 Elm So.' NeM M ,, MA OIM5 55 ] Eight Filly Fl. RWly 21 ChkdaNp Road NOMAnom—IM 01845 55 0 JemloFmrpH PEm SbM NaM.,.MA 01845 55 B Gwhad SClnsBryw NEIm SbM NeM AMmw.IM DIMS ED 1B B,mmm McCue 59 Elm Nem Nmm Mdwer, MA 01M5 85 M PmB..R.IEMloc."M 91 Hmn.kM Steed Memum, MA 01004 55 35 J.eph Mayr 20 of—A S. Nmm Mdmar, MA 01845 a 21 Gory W.h.. 15 Pbthom Meal Nom AW.,, MA 01M5 M 2 11GMWaINVBVC:..:Cleppw tO W. Me. Sherr. SO. 1200 IMM.pap, IN 48201 l e ba¢RYe PM � a1 This certifies that the names eppearhtg on the recordsof the Assessor; Office as of Haw r, aoog _ Certified by: ���Data $T�u/off TOFIPRC FRK E° EICE TOWN OF NORTH ANDOVER 2009 SEP 21 AM I I: 47 ZONING BOARD OF APPEALS Tu'4N OF NORTH ANDOVE; Property Owner & Location: MASSACHUSETTS Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OF PROCEEDING: Appeal from a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetmPCS Massachusetts, LLC (MetroPCS) or Trinitarian Congregational Church to install and operate wireless communication facilities on a residentially zoned property with less than the 600' setback between such facilities and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(c)(v) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(c)(v).. The North Andover Building Commissioner granted a building permit (#628) to MetroPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Lizetta M. Fennessy, 77 Elm Street, North Andover, filed an appeal with the Zoning Board of Appeals on May 28, 2009. She clamed, inter alfa, the Decision of the North Andover Building Inspector/Zoning Enforcement Officer, Gerald A. Brown, that the 600' setback requirement of Section 8.9.3(c)(v)" of the Zoning Bylaw did not apply to the MetroPCS/Trinitarian Congregational Church application for a building permit and that accordingly no variance from that requirement by the Zoning Board of Appeals was required before he could lawfully issue a building permit. She also claimed that the Building hispector/Zoning Enforcement Officer wrongfully issued a building permit (4628) to MetroPCS and Trinitarian Congregational Church in violation of Section 8.93(c)(v) of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, provides that "[t]he decision of the board [of appeals] shall be made within one hundred days after the date of the filing of an appeal, application or petition ... "and that "failure by the board to act within said one hundred days ... shall be deemed to be the grant of the appeal, application or petition." Section fifteen also refers to "approval [of petitioner's appeal] by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Andover Town Clerk on or before September 5, 2009 (100 days atter the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September 5' being the Saturday of the Labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings "that the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit #628 granted 5/18/09 on the basis that no variance was granted for the 600 ft. setback required per 8.9.3(c)(v) of the bylaw." "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... 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." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice specifies, as here, that appeals, if any, of this claimed constructive approval shall be made pursuant to Massachusetts General Laws, chapter 40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21, 2009. L M. Fennessy Petitioner DECLARATION OF SERVICE I, Lizetta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, first-class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Service List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. zetta . Fennnessy Petitioner SERVICE LIST See attached list of addressees and addresses. Albert P. Manzi III, Esq. 24 Main Street North Andover, MA 01845 Ellen P. McIntyre 23 Tanglewood Lane North Andover. MA 01845 Richard J. Byers, Esq. 97 Forest Street North Andover. MA 01845 Joseph D. LaGrasse 140 Sugarcane Lane North Andover. MA 01845 Richard M. Vaillancourt 454 Stevens Street North Andover. MA 01945 Thomas D. Ippolito 430 Osgood Street North Andover. MA 01845 Peter Morin, Esq. McDermott, Qullty, & Miler, P.C. 21 Custom House Boston, MA 02110 SERVICE LIST Daniel S. Braese, Esq. 21 Periwinkle Way North Andover, MA 01845 Michael P. Liporto 74 Heath Road North Andover. MA 01845 Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Planning Board Town of Boxford 7A Spofford Road Boxford, MA 01921 Planning Board Town of Andover - Town Offices 36 Bartlet Street Andover, MA 01810 Planning Board City of Haverhill - City Hall 4 Summer Street )Room # 201) Haverhill, MA 01830-5843 MetroPCS Massachusetts, LLC 285 Billerica Road Chelmsford, MA 01824 Page 1 of 2 Planning Board Town of Middleton Memorial Hall 48 South Main Street Middleton, MA 01949 Zoning Board of Appeals 235 North Street North Reading, MA 01864 Planning Board City of Lawrence City Hall 200 Common Street Lawrence, Massachusetts 01840 Zoning Board of Appeals City of Methuen - Quinn Building 90 Hampshire St., Methuen, MA 01844 Gerald A. Brown Zoning Enforcement Officer Town of North Andover 1600 Osgood Street North Andover, MA 01845 Thomas J. Urbelis, Esq. Urbelis & Fieldsteet, LLP 155 Federal Street Boston, MA 02110.1727 .SbZVlCE L i&T umx F4Nar1 1 6WFa Ced. 11 CmawaY i) 2awe 1 1 PAGE 2oF 2 - This cartiges that the names appearing on the recordsof the Assessors Ofllce es of „I " rc f 1, aoo ate 6 aU U 9 Certified by:____'\ MAP MAAP 42 PARCEL 2 um TMIWan Cd~onel CMatlt tom, 72 E"SOM Mod MA DIM Nall , SSMI Pam' D=am Add,O 41 8 BOUiMxnuNlFunmalimil 3537 MemmeM S— NOM Mdwer, IM 01015 41 10 AMur hl Cue 57-50W.Streel Na, Md. 1. MA o1N5 41 11 HYdd MOPlne Go WaMSbael NOM Mdwer, MA OIM 41 13 HmAd MWIIx S3 WeMr 5trM Nm, Mdmtt. MA 01&5 41 1e JCM Ornery MReOentAwnu. HrverMII. MA 01533 e1 le NabM ChUma 17 Mmdmed, SUM Noll Mummer, MA 01015 41 2{050A Gxy ROdUld 59 CM1mN SMUT NeM Md-M.MA 01&5 41 2.0061.0 CUMM Plaid 51 ch. Shea WM Mdwer, MA 01M 41 3-0OS1A COMO PxU 01ACOMOh Shed WM Md, IM 0815 41 12 J.R.WttWt 00 Wrier Strrot North Momhr, MA DIM 41a.f• pw,Id Cde 5310vAnd ROW HMMII, MA DIM 41 N SMM PendNx 61 Ch.. mmou NOM Mdwe, MA 01&5 41 ASfMBO MNS'Nd 19 Chu d,S. NON MOOwr, MA 01. 41 4iE0}510 TrveW/e Phdk W 51 ChV SVM Norm Mdwer,1M 01¢15 41 v GimuM PWu 22CaNm SVUt NUN MOOvtt. MA DIM 41 25 JOM stuchu, PC BUL WryMM, MA 01710 41 M HeMd MMlln S]Webr3trM Nell MUua. MA 01M 41 3E4021.0 R2enNxwl 21 Menlmxk Strex WM MIO, W, DIM 41 3M M.0 J. Cmnln 23 MFM 1t S0ex NOM MIMOM, MA 01M5 41 W Suety FmxlU 53wmmSSM NUN Mourner, IM DIM 41 10 Mims Wllm SS Chu. Street NOM Andover. MA 01516 N 01 JemUSmMPe fi5 GMn SOME NOmd AuW r. MA 01-6 a 1-W010 PNIP SemUm SO EIm5trM11 NOM Ntlm'u, MA 01515 12 1M320 .Geller SO EIm Strati e2 NON NMmv. MI, 12 42 IAOOJ,o NMbm GMMO SBEIm SVM13 DO= NmMMoo-nr,MA 01&6 3 Brim Rhoads. NUM Md—, MA o1M5 /2 4oD2A Erk RcbM 32Mumltlohl NU MdPIhm 1M 01M 12 40033.8 Mem Mi¢mell Sa Chumin S. So ISSMI Md., MA DIM 4 WlR.Oddifthilaul NPM Mdwx. 1M 01545 42 Q 5 5 R R. Rl141,M 30CIMmIMM, Nord, Mdwx. MA o1&5 I3 S Pmppelbrel LhutN 242 SVM ho h NgOner, IM 01M5 12 7 %uhmalS 312AWM ShM NmNMd..l&k 01M U' V BMlhcM[Ptwe SnnMm,m BGFdm NOMI Mdaar. IM OIM5 13 8 JMn Morym .S 332b GeNen SbM Ohm Andcum, � DIM 12 55 hM Nmm Wdwer,MA 01&5 13 c iml- ClOP,ft rLMUp 27 Chm. PLIdstud'd NOMMdmr,MA 01e15 42 13 rVmPeUx S11M Nmh Mdarer. MA 01&5 13 a 11 johichund UEJm 551 l NUN Mdwer, MA 01M5 12 GDOM Bran GOMMw Elm Shed Elm8 NUF Mdmr,IM 01&5 12 IMil.B 15-0PJ.F Mldwd Kedien ME S1F Elm 5VM Noallm Mtlwx, MA 01015 42 IS "Mu. SMwU 46E3Velt Nn NwN Mdwx. NA DIM 17 Hwre eSmixF 46 Elm all DIM NwN Mauer. NA MMS 42 43 MBMiUTASSWRRwo 1816 MtlUx.MAo /2 21 21 alOWl Nm101 BFryIWNY B10 u d rAtlen 45Em Strex NOM Mdwx. UN 01M5 U Shin, Mp 4 NOM Mdam, IM 01045 55 55 11 1 MMIEum COuh SMheV1 40 Cwn SVM Nell Md., MA 04016 66 6 Timm',WMq TItMMSFIW 65 NOM ANmer, MA 01M5 7 EIBM Flw Reelq CEO E&Mix 77 CVi ROOM ROW NOM Mdwx, IM 01M5 W M B F Jemn F%POhq 77 Elm Shad NUN Mdwer, MA 01M5 55 S Gmmumn 0mnepinper 83 Elm SVM NOM Mdwx, MA 01M5 CS 1.U Bm]an MCLue SB EOSVed NwN Mdouer,IN 01M5 65 M Nw Ral Eelsle Lxnpury 81 HUI�PdPWU MI5d 55 35 JdUph Mryr 30 lShad humbMaho10M NON Mdwa, IM 010M Gmu pludd 15wWO NOM Mdmm.IM 01M6 M M 3 2 HDGWaMxoM HpGMwur IHV bUL; etln:Gyga SM low Nedra ShM SUM t30D ImXOOpOIb.IN4B2M Ow F\T Fall This cartiges that the names appearing on the recordsof the Assessors Ofllce es of „I " rc f 1, aoo ate 6 aU U 9 Certified by:____'\ PECEIVED TOYltt CLEPY'S 0710E TOWN OF NORTH ANDOVER 2009 SEP 21 AM If - 47 ZONING BOARD OF APPEALS 1-6•41p; OF NORTH ANOD`:'F;' Property Owner & Location: MASSACHOSLTTS Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OF PROCEEDING: Appeal from a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetroPCS Massachusetts, LLC (MetmPCS) or Trinitarian Congregational Church to install and operate wireless communication facilities on a residentially zoned property with less than the 600' setback between such facilities and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(c)(v) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(cxv).. The North Andover Building Commissioner granted a building permit (#628) to MetroPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Lizetta M. Fennessy, 77 Elm Street, North Andover, filed an appeal with the Zoning Board of Appeals on May 28, 2009. She claimed, inter alio, the Decision of the North Andover Building Inspector/Zoning Enforcement Officer, Gerald A. Brown, that the 600' setback requirement of Section 8.9.3(c)(v) of the Zoning Bylaw did not apply to the MetroPCS/Trinitarim Congregational Church application for a building permit and that accordingly no variance from that requirement by the Zoning Board of Appeals was required before he could lawfully issue a building permit. She also claimed that the Building Inspector/Zoning Enforcement Officer wrongfully issued a building permit (#628) to MetroPCS and Trinitarian Congregational Church in violation of Section 8.9.3(c)(v) of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, provides that "[t]he decision of the board f of appeals] shall be made within one hundred days after the date of the filing of an appeal, application or petition ... "and that "failure by the board to act withinsaid one hundred days ... shall be deemed to be the grant of the appeal, application or petition." Section fifteen also refers to "approval [of petitioner's appeal] by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Andover Town Clerk on or before September 5, 2009 (100 days after the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September 5" being the Saturday of the labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings "that the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit #628 granted 5/18/09 on the basis that no variance was granted for the 600 ft. setback required per 8.9.3(c)(v) of the bylaw." "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... 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." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice specifies, as here, that appeals, if any, of this claimed constructive approval shall be made pursuant to Massachusetts General Laws, chapter 40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21, 2009. P M. Fennessy (� Petitioner DECLARATION OF SERVICE I, Lizetta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United Stales Postal Service, first-class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Service List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. 4Pefitioner nnessy SERVICE LIST See attached list of addressees and addresses. Albert P. Manzi III, Esq. 24 Main Street North Andover, MA01945 Ellen P. Mclmyre 23 Tanglewood Lane North Andover. MA 01845 Richard J. Byers, Esq. 97 Forest Street North Andover. MA 01845 Joseph D. LaGrasse 140 Sugarcane Lane North Andover. MA 01845 Richard M. Vaillancourt 454 Stevens Street North Andover. MA 01845 Thomas D. Ippolito 430 Osgood Street North Andover. MA 01845 Peter Morin, Esq. McDermott, Quilty, & Miler, P.C. 21 Custom House Boston, MA 02110 SERVICE LIST Daniel S. Braese, Esq. 21 Periwinkle Way North Andover, MA O1845 Michael P. Liporto 74 Heath Road North Andover. MA 01845 Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Planning Board Town of Boxford 7A Spofford Road Boxford, MA 01921 Planning Board Town of Andover -Town Offices 36 Bartlet Street Andover, MA 01810 Planning Board City of Haverhill - City Hall 4 Summer Street (Room N 201) Haverhill, MA 01830-5843 MetroPCS Massachusetts, LLC 285 Billerica Road Chelmsford , MA 01824 Page 1 of 2 Planning Board Town of Middleton Memorial Hall 48 South Main Street Middleton, MA 01949 Zoning Board of Appeals 235 North Street North Reading, MA 01864 Planning Board City of Lawrence City Hall 200 Common Street Lawrence, Massachusetts 01840 Zoning Board of Appeals City of Methuen - Quinn Building 90 Hampshire St., Methuen, MA 01844 Gerald A. Brown Zoning Enforcement Officer Town of North Andover 1600 Osgood Street North Andover, MA 01845 Thomas J. Urbelis, Esq. Urbelis & Fieldsteet, LLP 155 Federal Street Boston, MA 021101727 Seikvi CE Lr Sj 4eelsa Acetal 1 euurro Deal. r r cwroe.+r i zw+x 1 1 PAG C- Z o F 2 - This certifies that the names appearing an the records of iha Assessons Office as of wu�tA' Ir aOd) Certified b%� �DatB $ 26 of MAPPARCEL MAP 43 PARCEL ] eB� ICIwN+ TrFIWPnCmpP w i3 Elm Street �l4ll NaNMmdhW.MA 0IM hap DAVID, Mo., 41 9 &Mn Memarld Fuwall Hwre, LLC 157MCMm SmW NOM Mdwer. MA 01&5 41 10 MOur MCCue 5]-Sp.1 StreN NCM Mdve, MA 01W 4t tt hWdd MCPIve 03 water SOn1 NOM MdmM. MA 0IM 41 1] Hoo MCP. e3WM Street Nmm M.. MA 01245 41 14 JMn CeroY .Repml.. He.111. MA 0IDW 41 10 how (MIN 17 Mom -M SEw Nae Md. YM 01M 41 2-0,490 GMRCdpwa 59 ch.5hce1 NOM MmmPd. MA 0IM 41 1.0001.0 C.W. Pum B1 LIwM 10PW NOM Md, YM 01045 41 2-0061A CP0,e Pum SIACHUM SlPo NOMAPIMm MA DIM NOM Md Mu. MA 0IM 41 13 JA. Web 09 0h Stral 5310nwd Rwd NeremAl MA 0IM 41 41 43 N Deal CP. SFay, PI 64 Ch.mP Smw 41 40140.0 Mo :WP, OI 49 Cha Me AMawr, 5U DIM 41 46W51. Te 51 GwM Strom NwNMdPM, MA 01-5 41 ]] dldP o. 3T CB NwTMdwrr,II 01015 41 J..S'N m, JMn -4 em4 WemeM 41 . J1 Who . 01!Adm S ., VV, Nae Md., MA 01845 41 ]5N21D Rwn Nmnen R,y .. Sbem S M., MA DIM 41 ]60023.0 n "Mmlmlut 23 Street Nae Mdwn, MA 01245 MO 41 T Suss Fwtmm Ik. Fa wl 5 W. Shot AMOrer. MA DI245M 41 40 WpInIe NmMO ChPPd, SS CM1UM Sham NOM APIPPd.jollM, MA DIM Me It 41 J. Smedlo 55 Gwn Swot Nwm NYlm'm. MA 01345 42 tIXOtA PNIIIP Swnpml SSElm Stdol 11 NaMMd. MA DIM 42 I IM Nde Md.,MA DIM 42 -1003D I -1003A Mm C NMMm NEIm5MPIM Swm/3 NMM1 MNwv. MA DIM 42 3 do SMkdort; 42E NwNMMowr.MA DIM 42 4=.0 Ee RIWY 32CAUMStrwIM uCh4 SWWM Nae Md.. MA DIM 42 4W]3.D MWn Muvntl NOM Moor MA DIM 42 4-0L01.0 JMn NT MCNUM U. Sted NChdmhSmm MMarrt, MA DIM 42 5 moP PkM1odmi 72ElmS SMee1 MmI Muter. MA DIM 42 S Gc r TMHaMnphdD Wllel LM1uM S. 242 NeM Mdwmr, MA DIM Me 42 2 hl &2MMn SMeel MdaPP,Mm. MA 42 a Ed-CMCPIIa COMI 9 SanS Me MA 01M DIM AmdMOP, 43 9 J.. 25Gillmdo We MA 01 42 35 S.Mmgn CPMoPP Sheet 9GodmNendd NOM APIMP. IM DIMS 43 13 CMe¢PMr1aIM1nP Chet 32 L1wM Strom 21CN MdmPm, MA 01.5 42 13 AwnPuma 02 Elm S. NUN MdOwr, MA DIM Me 42 Jgln CPM 55Elm NOM Md. MA 01M5 42 15 D BPm Elm Sm ok with .r. {3 15.O. mEd-moue 24B Mm SIPPI WMAPP u,SIA DIM 43 .r 10 H..Shcm Hams Sbwm 4Bem5w" Nae Md. MA DIM 42 Hd�SMwm .Elm Elmo NOM Mow. MA DIM 43 W DaneM EObI 256 Mein 5trM NOMMdovd.MA DIM 42 21 31 &yen NMq' S1 McMda 0191e 42 n Mlen EAStroflM ds ENnsheu Nam Mdwu, MA Mar, DMer Mont Pdoo4Cmm,S tree1 Me 01M 0IM 55 W I I Nnwnl Lee n 4D WmIAdmm.MA Nam Md:M' MA DIM 5 "D Elm Som GS Emshwl Nam MdwP. MA 01.5 55 u 2 ElgldTmDdP,Smhen RWry 21 CIIitltulnpPmO NOM P. MA 01.5 SS 8 J FPmPm J. Fm�eery 22 Elm Sheet MAd. MA D1.6 55 9 Gftmm SPh.dru 83 Elm Seel Me IM Nae MOOuu, MA 01.5 W 10 SnMm MCCUP 59EMSMee1 NOM Mxdver. MA 01.5 W ]1 Pmpnwlw hall EmM CDmomY 91 Hempmwd 6.M IMP—, MA 01W 55 M imom, WF 211 PIewnl She" Me Md.,, IM OIM M 31 Gory WdmPPi 15 P=ntSml NUN Md... MA 01.5 54 2 HDG Mo, rDIM M; On Clow 10 W. mod" StrM. Sue 1200 INMwPalfis IN40204 5rm2me This certifies that the names appearing an the records of iha Assessons Office as of wu�tA' Ir aOd) Certified b%� �DatB $ 26 of RECEIVED TOW: G FRK'S OFFICE TOWN OF NORTH ANDOVER 2009 SEP 21 AM 11= 41 ZONING BOARD OF APPEALS TOT, OF NORTH kIGOVER Property Owner & Location: MASSACHUSETTS Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OF PROCEEDING: Appeal from a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetroPCS Massachusetts, LLC (MetroPCS) or Trinitarian Congregational Church to install and operate wireless communication facilities on a residentially zoned property with less than the 600' setback between such facilities and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(c)(v) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(c)(v).. The North Andover Building Commissioner granted a building permit (#628) to MetroPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Lizette M. Fenoessy, 77 Elm Street, North Andover, filed an appeal with the Zoning Board of Appeals on May 28, 2009. She claimed, inter glia, the Decision of the North Andover Building hispector/Zoning Enforcement Officer, Gerald A. Brown, that the 600' setback requirement of Section 8.9.3(c)(v) of the Zoning Bylaw did not apply to the MetroPCS/Trinitarian Congregational Church application for a building permit and that accordingly no variance from that requirement by the Zoning Board of Appeals was required before he could lawfully issue a building permit. She also claimed that the Building Inspector/Zoning Enforcement Officer wrongfully issued a building permit (#628) to MetroPCS and Trinitarian Congregational Church in violation of Section 8.9.3(c)(v) of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, provides that "[t]he decision of the board [of appeals] shall be made within one hundred days after the date of the filing of an appeal, application or petition ... "and that "failure by the board to act within said one hundred days ... shall be deemed to be the grant of the appeal, application or petition." Section fifteen also refers to "approval [of petitioner's appeal] by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Andover Town Clerk on or before September 5, 2009 (100 days after the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September 5 being the Saturday of the Labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings "that the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit #628 granted 5/18/09 on the basis that no variance was granted for the 600 ft. setback required per 8.9.3(c)(v) of the bylaw." "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... 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." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice specifies, as here, that appeals, if any, of this claimed constructive approval shall be made pursuant to Massachusetts General Laws, chapter 40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21, 2009. QeM. Fennessy DECLARATION OF SERVICE I, Lizetta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, fust -class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Service List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. Yzet—e]o�q nessy Petitioner SERVICE LIST See attached list of addressees and addresses. Albert P. Manzi III, Esq. 24 Main Street North Andover, MA01845 Ellen P. McIntyre 23 Tanglewood Lane North Andover. MA 01845 Richard J. Byers, Esq. 97 Forest Street North Andover. MA 01845 Joseph D. LaGrasse 140 Sugarcane Lane North Andover. MA 01845 Richard M. Vaillancourt 454 Stevens Street North Andover. MA 01845 Thomas D. Ippolito 430 Osgood Street North Andover. MA 01845 Peter Morin, Esq. McDermott, Quilty, & Miler, P.C. 21 Custom House Boston, MA 02110 SERVICE LIST Daniel S. Breese, Esq. 21 Periwinkle Way North Andover, MA 01845 Michael P. Liporto 74 Heath Road North Andover. MA 01845 Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Planning Board Town of Boxford 7A Spofford Road Boxford, MA 01921 Planning Board Town of Andover - Town Offices 36 Bartlet Street Andover, MA 01810 Planning Board City of Haverhill - City Hall 4 Summer Street (Room # 201) Haverhill, MA 01830-5843 MetroPCS Massachusetts, LLC 285 Billerica Road Chelmsford, MA 01824 Page 1 of 2 Planning Board Town of Middleton Memorial Hall 48 South Main Street Middleton, MA 01949 Zoning Board of Appeals 235 North Street North Reading, MA 01864 Planning Board City of Lawrence City Hall 200 Common Street Lawrence, Massachusetts 01840 Zoning Board of Appeals City of Methuen -Quinn Building 90 Hampshire St., Methuen, MA 01844 Gerald A. Brown Zoning Enforcement Officer Town of North Andover 1600 Osgood Street North Andover, MA 01845 Thomas J. Urbelis, Esq. Urbelis & Fieldsteet, LLP 155 Federal Street Boston, MA 02110-1727 SE2vIiE �IS7 Mw.NAeuwr 1I>wumalxa r r m�.mm r i ueNe r 1 l'F1GE z of 2 Neolnur6Nr MBP PARCEL tl6me A� 42 2 TM1MMn Cor N saPnol ChuN 73 Eft 50ce1 NOM Auld, MA 01945 AMUNUS Row NM Mit PB®1 N1m9 Addm. 41 9 Bram NymaW Furiml Home. LLC 3631 MeiluBh SIPPI NOMMc! ar,MAo1945 41 10 Am. McCue 5]-68 W. StreM Nam Md.,. MA 01.5 41 11 HeoM MWFee 63 Webr Sbxl NOM Mdwer. 04, DIMS 41 13 Hudd Nam. 63 WM SkeN NOM Mdwv, MA 01.5 41 14 John Dacey b/IpenlM H.MII. MA 01932 41 16 RetortG ll, 11 MaMmn*S. NOM Mdw ,MA DIMS 41 2-0359.0 Gary Kampen 59 Chug Sheu NUN Mdwer, rM 01905 41 3-00610 COYmo Gvm 61 LFurM BOM NaM MAvuer, MA O1M5 41 3MB1A C. Perm 81ACIIurU SOM N—Mdwer, IM 01&5 41 R J.R. Nrnlb Be Wab Street NwN Ngwm 041101&5 41 43 DMd Cde 531.,PSVd Rm 11 v 1l, MA 01832 M M SMM Pendeibr 61 Churn Street Nardi wer, IM 01645 46 41 03490 MN Sokd 49 Ct=Sheet Nam Mdwer. MA DIM 41 4606510 TmMart n Pmy Sl ChuI SOM m NMNwer,MA Ulm Ge 4t n Mue PWu 22C.ShM NUN Mdwu, MA DIMS 41 A JeM Shw, PC.4 WryYnd, 044 DIM M 34 Hmru MaPMe 63Weur5OM Nam M., MA 01M 41 3603210 Ryan Noo. 21 M.Uak S. Nam Mower, MA 01845 41 360023.0 J.Ch 23 MPall.cr Soeel Nam Mdwu. MA 01645 41 31 SWn Fauna 53WMr Street NdNMuwer,2M 01045 41 40 "1". me" 59 Chu. Sheol Nam MMM, NA Cl. Al 41 Jame SnwNe 65 Cfmn SOM Nam Md.. MA WIND 421-03010 PhISH,M wn 26EIm SOMi1 Nam MdMd.MA 01815 42 1-03320 Leo Calmar "EIm S.12 Nam Md .MDIM 42 I.DD03D IWh—Cmnln MEI. Sting Nam Md—: MA 01915 42 3 SUM Repuo 42.C.. SIM Nam Mtloer. NU 01615 42 L A Erk ROMN 32GnrMSOee1M NoMMIMM.MA DIM 42 4=B Mem M.1 32 Muhl, SUMA0 Nam Md.. MA DIM 12 L D Jahn NTAtle,ah MClurut Shat NOM Mudeu, MA 01845 42 5 Rh2nu WNmmd wChurN SOM NOM M., MA 01&5 42 6 TMMal Carpe deal Chu. 72 EFn S0eu NOM Mower. IM 01M 42 1 me"M[Phee 242 Ma'n SOM NOM Md.. MA 01.5 42 0 BAn Corby OG SOMI NMNMdmv.AM DIM N 8 JMn Mdryan 2326 GeNm Shea NOM Mover, 204 DIM 42 35 BMCorbll RG SOeN NOM Mdmw.. DIM 42 12 C.W .4 ,dp 21 CwrM Shea Nam Mdwer, MA DIM 4213 Nmn PUWa SUE bn SUM. NeMMmwer,MA DIM 42 4 J. Cam Be EP, 'M d, Nom Nuwer, MA 01515 42 150003.5 B.Gaud. 51B EM S0 d Nom Ah... IM 01M 42 150003.F MMeu NxMl AF Fin Sheet Nam MdMd, MA DIM 43 16 Hu. SMrena MEMS. Nam .. MA 01845 42 11 Hwem SbMm MEIm Sheet Nam Nearer, MA DIMS 13 2D Call E41IX 208 Mun SOMI Nom Md, MA DIMS 42 21 SMnq 54B.NiNal Ram Md.,M4 o1B10 42 22 ChNMIVrNlen MEOP S. Nom Mdwu, MA DIM 42 . MukIJy6M 9PIeveM Sado Nam Md ..w DIM 55 1 Nmol Laden aCaud Sheu Nom Md., MA 01MB 55 6 Tlmdl, Selaal 65 E" SISI NOMNuwa,MA 01"5 55 i Eight Fe, FIn RWIy 11 ChialaMp rend Nom Mdo ,MA DIMS Y 8 Jam. F.." P EIm SOMI Nom Mmwer. IM DIM a 9 GerFeN Scinepnp. 0 EIm SMe1 Nom Md.u. MA 019M US 19 emmm McCue WErn ShM Nam Mdwer, MA DIMS 55 M Pm Uddehhe NMI EMM Lomawy 91 HINDUISM Sheol Maduol, MA 01514 55 35 Jo Ma/r 20 P.M Street Nom Mdw., MA DIMS 55 21 GalyW .M 15PueaenlSMM Nom Mlft r, MA 01"5 51 2 HDO Meaw INV SVC; On. CIWP. to W. M. SUM, Supe 12M Inune9olh, IN 48204 Gro r4 ^/ This certifies that the names appearing on the rewrds4f� the AeSessors o1Nce as of _CI NI/.e 1/ coo Certified by: (`Dote 6170107 P,ECEIVED TOWN C_UK'S OFFICE TOWN OF NORTH ANDOVER 2009 SEP 21 AM I I: 47 ZONING BOARD OF APPEALS TOC; I; OF NORTH AITO':'E ; Property Owner & Location: MASSACHUSETTS Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OF PROCEEDING: Appeal from a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetroPCS Massachusetts, LLC (MetroPCS) or Trinitarian Congregational Church to install and operate wireless communication facilities on a residentially zoned property with less than the 600' setback between such facilities and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(c)(v) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(c)(v).. The North Andover Building Commissioner granted a building permit 0628) to MetroPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Lizetta M. Fennessy, 77 Elm Street, North Andover, filed an appeal with the Zoning Board of Appeals on May 28, 2009. She claimed, inter alia, the Decision of the North Andover Building Inspector/Zoning Enforcement Officer, Gerald A. Brown, that the 600' setback requirement of Section 8.9.3(c)(v) of the Zoning Bylaw did not apply to the MetroPCS/Trinitarian Congregational Church application for a building permit and that accordingly no variance from that requirement by the Zoning Board of Appeals was required before he could lawfully issue a building permit. She also claimed that the Building hispector/Zoning Enforcement Officer wrongfully issued a building permit (#628) to MetroPCS and Trinitarian Congregational Church in violation of Section 8.9.3(c)(v) of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, provides that "[t]he decision of the board [of appeals] shall be made within one hundred days after the date of the filing of an appeal, application or petition ... "and that "failure by the board to act within said one hundred days ... shall be deemed to be the grant of the appeal, application or petition." Section fifteen also refers to "approval [of petitioner's appeal] by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Andover Town Clerk on or before September 5, 2009 (100 days after the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September 5' being the Saturday of the Labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings "that the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit #628 granted 5/18/09 on the basis that no variance was granted for the 600 ft. setback required per 8.9.3(c)(v) of the bylaw." "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... that the Zoning Board of Appeals reverse the decision of the Building Commissioner to issue a building permit to MetmPCS 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." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice specifies, as here, that appeals, if any, of this claimed constructive approval shall be made pursuant to Massachusetts General Laws, chapter 40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21, 2009. A M. Fennessy ner DECLARATION OF SERVICE L Lizens M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, fust -class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Service List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. zetta . Fennessy Petitioner J if SERVICE LIST See attached list of addressees and addresses. Albert P. Manzi III, Esq. 24 Main Street North Andover, MA01845 Ellen P. McIntyre 23 Tanglewood Lane North Andover. MA 01845 Richard J. Byers, Esq. 97 Forest Street North Andover. MA 01845 Joseph D. LaGrasse 140 Sugarcane Lane North Andover. MA 01845 Richard M. Vaillancourt 454 Stevens Street North Andover. MA 01845 Thomas D. Ippolito 430 Osgood Street North Andover. MA 01945 Peter Morin, Esq. McDermott, Quilty, & Miler, P.C. 21 Custom House Boston, MA 02110 SERVICE LIST Daniel S. Breese, Esq. 21 Periwinkle Way North Andover, MA 01845 Michael P. Oporto 74 Heath Road North Andover. MA 01845 Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Planning Board Town of Boxford 7A Spofford Road Boxford, MA 01921 Planning Board Town of Andover -Town Offices 36 Bartlet Street Andover, MA 01810 Planning Board City of Haverhill - City Hall 4 Summer Street (Room q 201) Haverhill, MA 01830-5843 MetroPCS Massachusetts, LLC 285 Billerica Road Chelmsford, MA 01824 Page 1 of 2 Planning Board Town of Middleton Memorial Hall 48 South Main Street Middleton, MA 01949 Zoning Board of Appeals 235 North Street North Reading, MA 01864 Planning Board City of Lawrence City Hall 200 Common Street Lawrence, Massachusetts 01840 Zoning Board of Appeals City of Methuen - Quinn Building 90 Hampshire St., Methuen, MA 01844 Gerald A. Brown Zoning Enforcement Officer Town of North Andover 1600 Osgood Street North Andover, MA 01845 Thomas J. Urbelis, Esq. Urbelis & Fieldsteet, LLP 155 Federal Street Boston, MA 02110-1727 SE2vIC.E t_ts.7 ...s ..I I duodal I I I 12 11 PAGE 2 of 2 - MAP MAP PAFCEL tlard, A0+&s 41 2 TNileIW LmplyaWnel Chumo 72 Elm Small Nam MEwer. MA 01815 AM�IM $?1Mtl(q Alen PD1 Neve A�aSB 41 9 Burn MadmlM FummM Home, LLC 313)wMa. Street No. Mtlwtt, MA DIM 41 10 ". McGm 57-50M rSamal NmMMlever, MA DIM 41 11 HwU'l d3Walec SVeM Norhmo ver, W DIM 41 13 H`mR1 V.. 63 Wood DoradoNmM M., NM 01&5 41 14 JMn Omwy 64Rawo ANd— HeverNIII. MA 01M 41 10 Noanl Glnp 17Mommc, Slaw Nath AramN, MA 01045 41 20056.0 u Gory Rotlpen 0ChueN Smat No-Mtlwx, NM 01&5 41 2.0061.0 CWmo PMm 51 GUM Sbee1 NOM Mdwc, MA 01E0.5 41 2-0061A Cwlmo Pmw 01AGmM S. Noll Mtlover, 00401615 41 12 JA. VMIft N, Well Sbeet Nati Md. MA DIM 41 4J Gwltl COM .1... R. Hwmhlll. MA 01 DW 41 M Shell Pm,whor 61 Chum, Omum NaMMdcv.MA DIM 41 461M4p0 MM Sew 4S ChwM 54w1 Nam Ahd1MA DIM 41 4800510 T.Nuun PnNMm 51 Ch. StrM NOM NWwer, MA DIM 41 , GeIInAe PoMU UGeNen Sam, Nam Mtlwmr, MA 01815 41 23 Jehn Slepury 10 Boo4 "".MA 01TN 41 M Handal MWIMe WWMer Stood Nam Mtlwa, MA 01M 41 360021.0 Rpm Nmwl 21 Nummak S. NOMNgwm,MA DINS 41 26002 ]0 J.Clai 23 MCMmaW Strati North Ww Nm, MA DIM 41 V a..F.L. Www Street NoMMtlwar,101A DIM 41 40 Vil NNMn SB CNUICI Shoal Norma er. MA DIM 4141 Jump Sound. 65 Green 511mMN 1 NO ,, MA 01545 42 1L0o1L Mho Smalwo WED, a.81 HPM Mbva, M 0160.5 4210002.0 Lno Gvdlmr WElm SUM/3 Nell Mdaw.IM DIMS 42 1000].0 mt. CmMn 66 EIM S. NoM MArer. MA 01015 42 3 @im ReµuaO 4244 Chu ch Sbem NbM Mtlwer. MA O1M5 42 4-0)3'LA EImRaMlb "CII.S.Im Nmm AMMr, NM Dim 42 4 13 Adam M.1 S2 ChUM 5000 aB Noll Mdavx.IM DIMS 42 Lr031.0 John NTXtlnplon %Chum, Sheet Nam Mdova. MA 01015 42 5 RIdad Radmond WChw, SMe1 Nmm Mtlwer, MA 01.5 42 8 TMNman Colow'lmal Chinch 22 Elm So l NOMMdmm.NdI DIM 42 T No, MCPhw 242 MMn Shell No. Md. NM DIM 43 6&Ian CoMN BGONen Sol NoM1 Md., MA DIMS 42 0 JoMMmyn 23-25 Garden Show Norm NWnm, MA 01Mfi 42 35 BN. CMall BChad- SOw NOM Mmser, MA 01005 4z 12 CM1fit,.1wroo vClumM 6VM N. NWvm, NM DIMS 42 13 Man Pelle @Elm Sew NOM Md .MA DIMS 42 14 John Cane 56 EIm S. N. MJwm, MA DIMS 42 11m'LOB arm Coach. MB Elm Strati Nam Mowm, NM 01 M5 43 16,0033.1' MI,w Ke,M .FEIDSurat Nom Mower. MA 01 S45 a 10 Naaw Simms 46 Elm Show Noll Md. IM DIMS 43 tT Naem SMem 16 Elm 5tleM Nam Moamar. MA 01M5 43 20 MmMElllol 0050000053-001 Nmm AMmol 01005 42 21 Imw Nwy M BaoMxM Rea Mtlwm, lM 01010 42 22 CMIa1MmirMah 45 Elm S. No. MNwer, MA DIMS 42 N MON Down. 9Flwanl Saw NWIh Modum, NA 01645 56 1 Mama Lenders 40 CwrI5hw1 NoMAMwm.MA DIM M 6 Tlmohry ma"' e5 Elm Shoal Nom Md. NM DIMS 55 T EIOM Fft R. Re9Ny It Coal Rine No. Am. , NM 01615 55 0 J.-Fmmw PElm Show NOMMa."NA 01615 55 S GwaN SIdm gm 63 Elm S0eM Nom Mdhor. MA DIM 0 he BnOdm MCCua .EIm S. NOM Mdmm, MA DIM ED M Rrymelve Rw Elle Comal 61 w,oMa Saw MMhum, MA LIMA 55 35 JmePh MM 20 Plmua SOM Nom MMwm, MA DIM 56 21 Co, WmMaOI 15 Manana Samt Nom Mdwer, MA 01.5 M 2 HDG Mwa INV WG; wri Clow tO W. Meati Samoa. SWM 12MIrodmoDtlie, IN 462. Oab a1A/Imi This certifies that the names appearing on the records 4i� the Pssessors Me as of WN Ir a00 Certlfled by: (\Date 6120167 TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS Property Owner & Location: Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts Petitioner: Lizetta M. Fennessy 77 Elm Street, North Andover, MA 01845 FURTHER DECLARATION OF SERVICE RECEIVED iO4'1^! C! RK'S OFFICE 2009 SEP 21 PM 2-- 38 TWNII OF NORTH ANOOVi_R MASSACHUSETTS I, Lizetta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, first-class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed below at the following addresses: Mark Bobtowski, Esq. Blatman Bobrowski & Mead LLC 9 Damonmill Square (Suite 4A-4) Concord MA 01742 Community Development Board Searles Building (Room 217) 41 Pleasant St. Methuen, MA 01844 Community Planning Commission 235 North Street North Reading, MA 01864 SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. Li M.Fennessy Petitioner RECEIVED TOWN OF NORTH ANDOVER TOM%: C! ERK'S OFFICE ZONING BOARD OF APPEALS 2009 SEP 21 PM 2: 38 Property Owner & Location: Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts Petitioner: Lizetta M. Fennessy 77 Elm Street, North Andover, MA 01845 TOW11 OF NORTH AHOOWR MASSACHUSETTS In re: NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN FURTHER DECLARATION OF SERVICE L Lizetta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, fust -class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed below at the following addresses: Mark Bobrowski, Esq. Blatman Bobrowski & Mead LLC 9 Damonmill Square (Suite 4A-4) Concord MA 01742 Community Development Board Searles Building (Room 217) 41 Pleasant St. Methuen, MA 01844 Community Planning Commission 235 North Street North Reading, MA 01864 SIGNED TINDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. M. Fennessy RECEIVED TOWN OF NORTH ANDOVER TOWP CLERK'S OFFICE ZONING BOARD OF APPEALS 2009 SEP 21 PM 2: 38 Property Owner &Location: Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts Petitioner: Lizetta M. Fennessy 77 Elm Street, North Andover, MA 01845 FURTHER DECLARATION OF SERVICE TOI-NN OF NORTH ANOOVi:.R NASSACHUS_i'TS L Lizetta M. Fennessy, hereby solemnly affmn and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, fust -class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed below at the following addresses: Mark Bobmwski, Esq. Blatman Bobrowski & Mead LLC 9 Danummill Square (Suite 4A-4) Concord MA 01742 Community Development Board Searles Building (Room 217) 41 Pleasant St. Methuen, MA 01844 Community Planning Commission 235 North Street North Reading, MA 01864 SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. Li M.Fennessy Petitioner TOWN OF NORTH ANDOVER TOM; C RECEIVE OFFICE ZONING BOARD OF APPEALS 1009 SEP 21 PH 2: 38 Property Owner & Location: Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts Petitioner: Lizetta M. Fennessy 77 Elm Street, North Andover, MA 01845 FURTHER DECLARATION OF SERVICE TOWN of NORTH ANOO'Vf.,R MAS5ACNL"'E" C S I, Lizetta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, first-class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed below at the following addresses: Mark Bobrowski, Esq. Blatman Bobrowski & Mead LLC 9 Damomnill Square (Suite 4A4) Concord MA 01742 Community Development Board Searles Building (Room 217) 41 Pleasant St. Methuen, MA 01844 Community Planning Commission 235 North Street North Reading, MA 01864 SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. Wefts M. Fennessy Petitioner TOWRECEIVED CLERKS OFFICE TOWN OF NORTH ANDOVER 2009 SEP 21 AM 1h 47 ZONING BOARD OF APPEALS TO11M OF Property Owner &Location: MASSACHUSETTS Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OF PROCEEDING: Appeal from a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetroPCS Massachusetts, LLC (MetroPCS) or Trinitarian Congregational Church to install and operate wireless communication facilities on a residentially zoned property with less than the 600' setback between such facilities and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(c)(v) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(c)(v).. The North Andover Building Commissioner granted a building permit (#628) to MetmPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Lizetta M. Fennessy, 77 Elm Street, North Andover, filed an appeal with the Zoning Board of Appeals on May 28, 2009. She claimed, inter alfa, the Decision of the North Andover Building Inspector/Zoning Enforcement Officer, Gerald A. Brown, that the 600' setback requirement of Section 8.9.3(c)(v) of the Zoning Bylaw did not apply to the MetroPCS/Trinitarian Congregational Church application for a building permit and that accordingly no variance from that requirement by the Zoning Board of Appeals was required before he could lawfully issue a building permit. She also claimed that the Building Inspector/Zoning Enforcement Officer wrongfully issued a building permit (#628) to MetroPCS and Trinitarian Congregational Church in violation of Section 8.9,3(c)(v) of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, provides that "[t]he decision of the board [of appeals] shall be made within one hundred days after the date of the filing of an appeal, application or petition ... "and that "failure by the board to act within said one hundred days ... shall be deemed to be the grant of the appeal, application or petition." Section fifteen also refers to "approval [of petitioner's appeal] by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Andover Town Clerk on or before September 5, 2009 (100 days after the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September 5" being the Saturday of the Labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings "that the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit #628 granted 5/18/09 on the basis that no variance was granted for the 600 ft. setback required per 8.9.3(c)(v) of the bylaw." "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... that the Zoning Board of Appeals reverse the decision of the Building Commissioner to issue a building permit to MetroPCS for constriction 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." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice specifies, as here, that appeals, if any, of this claimed constructive approval shall be made pursuant to Massachusetts General Laws, chapter 40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21, 2009. L' etta M. Fennessy Petitioner DECLARATION OF SERVICE I, Liotta M. Fennessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed on September 21, 2009, by United States Postal Service, fust -class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Service List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER, 2009. Fennessy Petitioner SERVICE LIST See attached list of addressees and addresses. Albert P. Manzi III, Esq. 24 Main Street North Andover, MA01845 Ellen P. McIntyre 23 Tanglewood Lane North Andover. MA01845 Richard J. Byers, Esq. 97 Forest Street North Andover. MA 01845 Joseph D. LaGrasse 140 Sugarcane Lane North Andover. MA 01845 Richard M. Vaillancourt 454 Stevens Street North Andover. MA 01845 Thomas D. Ippolito 430 Osgood Street North Andover. MA01845 Peter Morin, Esq. McDermott, Quilty, & Miler, P.C. 21 Custom House Boston, MA 02110 SERVICE LIST Daniel S. Braese, Esq. 21 Periwinkle Way North Andover, MA01845 Michael P. Liporto 74 Heath Road North Andover. MA 01845 Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Planning Board Town of Boxford 7A Spofford Road Boxford, MA 01921 Planning Board Town of Andover - Town Offices 36 Bartlet Street Andover, MA 01810 Planning Board City of Haverhill - City Hall 4 Summer Street (Room q 201) Haverhill, MA 01830-5843 MetroPCS Massachusetts, LLC 285 Billerica Road Chelmsford, MA 01824 Page 1 of 2 Planning Board Town of Middleton Memorial Hall 48 South Main Street Middleton, MA 01949 Zoning Board of Appeals 235 North Street North Reading, MA 01864 Planning Board City of Lawrence City Hall 200 Common Street Lawrence, Massachusetts 01840 Zoning Board of Appeals City of Methuen - Quinn Building 90 Hampshire St., Methuen, MA 01844 Gerald A. Brown Zoning Enforcement Officer Town of North Andover 1600 Osgood Street North Andover. MA 01845 Thomas J. Urbelis, Esq. Urbelis & Fieldsteet, LLP 155 Federal Street Boston, MA 02110-1727 S&AVICE L -IST .uwroAew'I 1 aW 4a t) Cow++n t J m'+a r J PHG E 2 OF 2 nEanHEn[in: wm'.er.nrnr�v.unrr.r..xwr.wa,�.w✓�.., i.i+.rwuawi.rvxtwsr��xv.xseraw. sa1.+...ew e+ruan �s.se.eaee�w4vv.x anA ar axq�r. xww..eewar r�ayvr.- Q eeAmav TdalaIM C,h,hw .l Ahem l 72Satin l NOMMMx. NA DIM A� alp Dt SWISS A I1 B eMn WrtaMl Fu Hems. LLC 3627 M.M. RINI NaT NW'x, MA 01&5 61 10 MM/MWJ. IN W. SVetl NOMAnlwer.MA 01615 N 11 HMN6 MWee 6TWebr Str NwM NNover. MA 01015 41 l3 HMee 0kP0e. 63 WMer StrM Ncrar w,MA DIM N 14 John Dah. 61 Repsol A nue 1I .NK. MA 01832 /1 16 F4owaNNnp 11 MCMmed SUM '...MA DIM n 24000.0 O"ReBpm 53 Chugs $UM NwNMgwv.1M DIM u 2{010 CMrDP. 61 Churn Suaet NOih M ..1M aim NNOVA Co Wm P. WACIxrtrn S6M NDN,.." 0101541 41 12 JA.l4mf BB WMer S. N" Ahaleeer, MA DIM 61 Al OM6 C4I 531 B Rw6 He 1, MA 01032 61 M ft"PeM60n C1 chu. Strati NaMMdover, MA DIM M 100Np01.WY6rYtl 19 C11uN 54M h. N.l—. 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MA a1M5 u 35 PMCaSW aCaspn SNW xvN Mitlww. 2M 01. u u 0 f laMltp 27..SEM NkIdh r. eM a1M6 Q 12 N P. WElia B Naafi, /v. IM DIMS 4 H Johne wFIm SE.M Neth M .MA 01815 u ISaCOB BI CxoNxe SIB Ehn SE Nnh MMdverlw aim R 1500(O.F Mlrwd eoIW S1FFJn6 NvBiM ,MA DIMS 63 IS 14.SEn6M 490an SEM NaIflh n.MA a1815 62 17 swam SNwu 46EIm SNW N,lh W ,MAa1M5 a IN pAy120"1 2NW SOM WNIA MNar.r. NA 01815 u 21 BrynY MI3lmMWdRM Mtlw.r, 1M 01910 u n cNw,,, rNin OEISSEM NMNMMwn, NP 01M6 u M MNOapJilo 9PW D4SNM NMNMdorn. M401M5 55 1 MrcniLaeMe IO COW 58w NM11M .. MA DIME 55 9 Turn ftwwa N EM S6M N Mtlwn, eM 01M5 5S 7 EIW FMy FMR !S, 71 Chi0aM ReM N. NMwn. IM 01. 66 9 J.IIf Fe T7Em SaNI NDN Mgnw. MA DIMS N p lydrptl BCneOlpw MEIni SEM NMI NEew, eM 01M5 55 IS 0leltlon MGue wE9n6EeN Nolte tl .1M 01815 M M PropRM EI,W, Compury 91 HMnpp..d INN, Ma61w. 1M a19M SS 38 Je5N11 MM 20PWUNN* NSIS` NA arm SS 31 Wry WtlMu1N 15PWFMS6M1 NGNMMEa.r. MA 01M5 M I HOO M6IV IHV BtrC;aM: CNpp.r la W.MMMSEM.SNM1%a IMn.pahs, IN a62M [b 6'IDTb rtiA � N 1 This certifies that the names appearing on the recordsQQf the Assessors Office as of 14; J 1200 Certified by: / Date—9; 72J 07 PETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY & MILLER LLP 131 OLIVER STREET 5a' FLOOR BOSTON, MA 02110 781-985-0789 tel. PMORINQMQMLLP.COM October 12, 2009 Ms. Joyce Bradshaw, Town Clerk Town of North Andover 120 Main Street North Andover, MA 01845 866-380-6570 fax Re: MetroPCS Massachusetts LLC v. Fennessey et als. Dear Ms. Bradshaw: Please take note that MetroPCS Massachusetts LLC has filed an action in the Massachusetts Land Court pursuant to G. L. c. 40A § 17 challenging the Notice of Constructive Approval filed with your office on September 21, 2009 by Lizetta Fennessey. A copy of the Complaint is enclosed herein. Very truly yours, /S/ Peter B. Morin N o y O 3z m zz' a— Noo � �m w �p n rn Please take note that MetroPCS Massachusetts LLC has filed an action in the Massachusetts Land Court pursuant to G. L. c. 40A § 17 challenging the Notice of Constructive Approval filed with your office on September 21, 2009 by Lizetta Fennessey. A copy of the Complaint is enclosed herein. Very truly yours, /S/ Peter B. Morin PETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY & MILLER LLP 131 OLIVER STREET 5° FLOOR BOSTON, MA 02110 20090CT -9 PN 1135 866-380-6570 fax 781-985-0789 tel. October 9, 2009 RECEIVED OFFICE PMORINQMQMLLP,COM Land Court Department of the Trial Court 226 Causeway Street Boston, MA 02114 Re: MetroPCS Massachusetts LLC v. Fennessey et als. Dear Sir or Madam: Enclosed please find the Complaint in the above -captioned matter. Thank you for your assistance. Very truly yours, f A's® Peter B. Morin NORTH ANDOVER MASSACHUSETTS Commonwealth of Massachusetts Land Calm Department of the Trial Court Case Civil Cover Sheet First Plaintiff Mytro PGS I1IPSSDG:IV.72#,t'hst Defeltdmd YQ('),Ne55C5�-....— % Locus Addresa/fhscnpim � Cityrfomo N0. doytt�'� _ I m -------- /nc2ruclions `� 'G`::: Part i - To B4 Completed by PMlnliff(s)' Cannel: FOR ALL MISCELLANEOUS CASES (EXCEPT cases Ilkd patsuam m Servieemembers Civil Refit( Act): � I Using the list below, please ,amber, with the Nualba I, the main cause of scrim on which you base you complaint. and 2. Place a check mark next Ip each oder nose of action in You complaim. and 3. Is this complaint verified? ❑ Vee Ig No and 4. Are that any related assns filed in the land Cumt Department 1 ❑ Ycs iSJ No II'Yuc pluw.w provide Ue Case No.UI: ._..._ 2AC Appeal bom Z-1-91Plennmg l and li. L. c. 40A, § 17 7AV Appeal Mon Planning Bond G. L. c. 41, § SIBB 2IA VatidhY a%amng G. L cc. 240. § 14A, 195, § 16 M ) 21:N DibmcassamZoning G. L. c. 40A, § 7 M Ramnre Cloud on Title c. L o 240.§6-10 OOM Disebm9n of OW Mortgage O. L. c. 24o, § IS LVT Alfitnl Tax Fomclomrt � 1 -and of MAN Low Vda - G. L. a 6a, § BOB VIIR '1'ry l'itic G.L.c M,§1-5 MWA Rmwvcr Fmchnb Dam fWm of Day) - (i. L. c Z17 MRC Oewmine VWidhY of lirlcunitn[rxis ABA G. L. a?40, § 11 - 14 CER R4tinktiaa OIA IDr. c. L. c 240. ¢ t0A- I(K' MA11 iM mnc Mduciar, AMharity Q L. c.. 240, § 27 PAR. Panima G. L. c. MI RFA Redemption G. L. c. 6.0.176 SP Spoific Pafomanccof Conaaws G. L. t' 195.§IM MBF' Dr4ns. Municipal namal. G. L. a42,§12 MFY. tklmnine Pamderies of Plats G_ 1. C. 2A0. § W L'NC Cudam-G. 1.. c. 249,§4 MAN Maalmnor - G. L. c. 20. 15 TTRE Tics as m kod Paha hivMving Talc - G. L. c. 195, 11 Int EQA Dins W Actin Involving Any gigM'fidc a IMamt in Imd G. L c. IM, §1(k) ABA ABortimic Hama, Appal G. L c. 408, § 21 OIA I Glbar pan IL -Uniform Counsel Certificate - to be filled an by Plaintiff(s)' Counsel m the time of mrtiai filing. All other counsel shell file within thirty (30) days of inirinl entry low the dace, whether by answer, motion. appeumcc or other pleading. FOR ALL MISCELLAN COUS CASES (EXCEPT Mortgage Foreclosures under the Servide.. bers Civil Rend Act) n,, f�' l am atmmeyrobmcord for:_ OMY0 PLS L's*k( W!S s jeLL PlaintitF/Defendmt in the aboveKmritled minter. if Defendant(.)' Attorney, please provide Case N. In accordmce with Rule 5 of the Supreme Judicial Uniform Rules on Dispute Resolution (SJC Rule 1:18) which ,mics in parr. ". _ ARomeys shelf provide their clients with this gdormmim aboutcoon-conoecied dispute retolution; discuss with their climb the advmmgas and disadvmbege, ofthe various methods of dispute resoludm: and certify their compliatce with this mquncrtml on the civil cover sheet or in egoivalom .. . 1 hereby certify that I have deolshal with Ills ml. BBO# 3�a5.! 55 _A — � igoehue mrnu�y-o� Ror�ra _ Yin 16 /� 'f Please Print Name Exempt Casese Tux Roredosures, MartRnge Fomlosu res under the Servicemembd, Civil Relief Ad and all cases related to origimni and subsequent registration under C. L c 185, § 1. COMMONWEALTH OF MASSACHUSETTS ESSEX, as. LAND COURT NO.2009- METROPCS OF MASSACHUSETTS LLC PLAINTIFF V. LIZ.F.TTA FENNESSEY, and ALBERT P. MANZI, 111, ELLEN P. MCINTYRE, RICHARD J. BYERS, JOSEPH LaGRASSE, RICHARD M. VAILLANCOURT, THOMAS D. IPPOLITO, DANIEL BRAESE and MICHAEL. P. LIPORTO, as they are members of the North Andover Zoning Board of Appeals DEFENDANTS COMPLAINT Introduction This is a Complaint challenging the Defendant Lizetta Fennessey's Notice pursuant to G. L. c. 40A § 15 that her appeal to the Zoning Board of Appeals ("the Board") has been constructively approved by virtue of the Board's alleged failure to act within the time provided by statute. The record evidence clearly and unequivocally demonstrates that the Board acted upon Fermessey's appeal within the required one hundred days of her filing, and that it filed its written decision with the Town Clerk within 14 days of said action, all in compliance with the statute. The record also reveals that Ms. Fennessey's Notice was not filed in compliance with §15, and her claim must be dismissed. Parties 1. The Plaintiff, MetroPCS of Massachusetts LLC, is a Massachusetts limited liability company with a principal address of 285 Billerica Rd., 3rd Floor, '.. Chelmsford, MA 01824. 2, The Defendant, Lizetta Fennessey resides at 77 Elm Street, North Andover, MA. 3. The Defendant,Albert P. Manzi, III, is a duly appointed member of the North Andover Zoning Board of Appeals. 4. The Defendant, Ellen P. McIntyre, is a duly appointed member of the North Andover Zoning Board of Appeals. 5. The Defendant, Richard J. Byers, is a duly appointed member of the North Andover "Zoning Board of Appeals. 6. The Defendant, Joseph D. LaGrasse, is a duly appointed member of the North Andover Zoning Board of Appeals. 7. The Defendant, Richard M. Vaillancourt, is a duly appointed member of the North Andover Zoning Board of Appeals. 8. The Defendant, Thomas D. Ippolito, is a duly appointed member of the North Andover Zoning Board of Appeals. 9. The Defendant, Daniel S. Braese, is a duly appointed member of the North Andover Zoning Board of Appeals. 10. The Defendant, Michael P. Liporto, is a duly appointed member of the North Andover Zoning Board of Appeals. statement of case 11. On May 28, 2009, Fennessey filed an appeal of the decision of the Building Commissioner by which he issued building permit #628 to MetroPCS. A copy of Fennessey's appeal is attached hereto as Exhibit A. 12. The Board held a public hearing on the matter on June 18, 2009 and August 11, 2009. The public hearing was closed on August 11, 2009. 13. On September 3, 2009, ninety-eight days from the date the appeal was filed with the Town Clerk, the Board voted two in favor, three against, a motion to uphold Fennessey's appeal. The Board's vote constituted an "act" on Fennessey's appeal as the term is used in G. L. c. 40A § 15. 14, On September 17, 2009, fourteen days from the date of its action, the Board caused a copy of its decision to be filed with the Town Clerk. A copy of the Board's decision is attached hereto as Exhibit B. 15. On September 21, 2009, Fennessey filed a document entitled "Notice of Constructive Approval of Petitioner's Appeal and Grant of the Relief Requested Therein" with the North Andover Town Clerk. A copy of said Notice is attached hereto as Exhibit C. WHEREFORE, the Plaintiff requests that this Honorable Court find and declare as follows: A. The Board's September 3, 2009 vote of 2-3 denying Fennessey's appeal constitutes action on the appeal within one hundred days from the date of filing and is therefore in conformance with G. L. c. 40A § 15; B. The filing of the written decision on September 17, 2009, within 14 days of its action on the appeal is in conformance with G. L. c. 40A § 15; C. Fennessey's filing of the Notice of Constructive Approval on September 21, 2009 is untimely, as it was filed more than 14 days from the expiration of the one hundred days (September 5, 2009) as required by G. L. c. 40A § 15; D. Judgment shall forthwith enter for the Plaintiff; E. The Notice of Constructive Approval was filed with malice, and in bad faith. Respectfully submitted, MetroPCS of Massachusetts LLC By its attorney, PETER B. MORN, ESQUIRE (BBO#355155A) McDermott Quilty & Miller LLP 131 Oliver Street ._. _..... _.... _.Boston, MA 02110 _ 617-946-4600 tel. 617-946-4624 fax. pmorin@mgmllp.com EXHIBIT A FINDING TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS MAMF• LIZe+fA M, Fet Procedure & Requirements for an Application for a Finding Ten (1 D) copies of the following Information must be submitted thirty ('Lit) days prior to the fast public hearing. Failure to submit the required mfonnatlon within the lime periods prescribed may result in a dismissal by the Zonis Board of ane plication as Incem late. The damnation herein is an abstract of more specific requirements listed in the Zoning Board Rules and Regulations and is not meant to supersede them. The n ill cemdete harris ftat am u den'ned STEP 1: ADMINISTRATOR PERMIT DENIAL: The petitioner applies for a Building Permit and receivers a Zoning Bylaw Denial farts completed by the Building Commissioner. 9TEE 2 ,F DIN APPLICATION FORM' Ferrante, completes an application form to petition the Board of Appeals for a Finding, AI information as required in items 1 through and including 11 shall be completed. STEP 3 PLAN PREed pla PARATION' petitioner submits all of the required information as died in woon 10. page 4 of this form. STEP 4 OBTAIN UST OF PARTES IN RNTEREST• The petitioner requests the Assessor's Office to compile a certified list of Parties in Interest (abutters). Stump STEP 6: SCHEDULING OF HEARING AND PREPARATION OF LEGAL NOTICE: The Office of the Zoning Board of Appeals schedules the applicant for a hearing date and prepares the legal notice for melting to the parties In interest (abutters) and for pubication in the newspaper. The potitiorler is notified that the legal notice has been prepared and the cost of the Party in Interest fee. STEP 7 DE1 JVERY OF LEGAL NOTICE TO NEWSPAPER The Petitioner phis up the legal notice from the Office of the Zoning Board of Appeals and delivers the legal notice to the local newspaper publication. STEP 8: PVBUC HEARING BEFORE THE ZONING 80 OF APPEALS: The petitioner should appear in his/her behalf, or be mpresemed by an agent or attorney. In the absence Di any appearance without due cause on behalf of the petitioner, the Board shall decide on the matter by using the information it has otherwise recelved. STEP S: DECISION: After the hearing, a copy of4he Board's deolsion will be sent to all Patties in Interest, Any appeal of the Board's decision may be made Pursuant to Massachusetts General Law ch. 40A § 11, within twenty (20) days after the decision is glad with the Town Cleric. STEP 8 SUBMIT APPLICATION' S_ P 10. RECORDING THE DECISION AND JMS. Petitioner submas one (1) odgmal and an (10) Xemx The pellf,,w is responsible for recording certiflneaon of copes of all the required information to the Town Clerk's the decision and any accompanying plans at the Essex Office to be mnated try the Tom Clark with the time County. North Registry of Deeds, 364 Common St., and date of filing. The original will be left at the Town Omoe, and the 10 xerox copies will be left YAW Suite #304, Lawrence MA, 01643 and shall complete the Codification of Recording form and forward it to the Clerk's the Zoning Board of Appeals secretary. Zoning Board of Appeals and to the Building Department. .. .- � - - EtNivlluGmrunWurtudi4fnWtinirfltidtiGunMio��SrNldlrU�a�illananM1Au PHONE NUMBERS: IMPORTANT 978.$5$,9533 Ctfice of Community Dev. & Services North Andover Town Hall 129 Main Street 1500 Osgood St., Bog. 20, Suite 2-38 Andwar, MA 91845 g7e-688-9501 Town Clerk's Office North 978-888-9542 fax for Community Development offices 978688-9556 Assessors Office 9789884545 Building Department om,Ragr95prJ� Board of Appeals Office PAGE 1 of 4 hMAP 88 2009 !i- BOARD OF APPEALS PAGE 2OF4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a F1 WING Pleases com Mete all nems 1 —11 below: 1. Petitioner. `Name, -Address and telephone number: IIZe 'The pbtllorler shall M entered on the Istel notice and the decision es entered abase. 2. Owners of Land: Name, Address, telephone number, and number of years under this Years Owned Land: I 3. Location of Property: a. Street: 70 �Im 5f Pct Zoning District: R N b. Assessors: Map number. 4?- Lot Number: a c. Registry of Deeds: Book Number _Q2tZ Page Number. 297 4. Zoning Bylaw secBon(sia under which the petition for the Finding is made. �ectJ6 b,9 (c)(v) 'Refer to the Zoning Bylaw Daniel and Plan Ravlew Nandis, loan se Suppled by the Inspector of Bulidings. 5. Describe the Finding request: The above dcscriptoo ah.11 he sued hr rhe Pugwae a Lha 1-01 -shoe and dwlsion.RA.. detailed d� Pli ant ro deet w the ,squad the Zoning B." Rules and Re ulatona as Itad on page 4, aec9on 9 of this app w clearly ..Y ...it In a dach on that does M not address e Intent of the applload. Tha d.doon MII he Ranked to Na request by Ne-Pok's. _ -and will nor Ina it additional Mme not Included above. 6 A Difference from Zoning Bylaw requirements: Indl"W the dimenston(s) that will not meet cuneln Zoning Bylaw Requirements. (Lines A and B are In mse of a lot split) Lo[Area Oban Space Percentage Lot Frontage Parking Gof� 5efbd a5 )OA yr'C6 ide Sq. Ft, Sq. Ft. Coverage Feet Spaces Fant Side A Snn B Rear A. 0 A PJ A A) A ^r, /'A — 73 B.— -- % Page 3 of 4 NORTH ANDOVER ZONING BOARD OF APPEALS 6 B. Existing Lot: Lot Area OPan Space Peroent Lat Frontage Parking Sq. FL Sq. FL Coverage Feel Spares NA 6 C. Proposed Lot(s): Lot Area Open Spats Parcell Lot Frontage Pardgg Sq. Ft. Sq. FL Coverage Fast Spaces NA- -�- 6 D. Required Lot: (As required by Zoning Byline, a Table z) Lot Area Open Space pennant Lot Frontage Parking Sq. Ft. Sq. R. Coverage Fast Spam NA for a FINDING #(•a wl rrnps SF/0c Mlu m m, WE Setback {p P� Front Side Side $,93(cXo- (0_ ino0 i (2 00 TA. Existing Building(s): Ground Flax Number of Height Total Usa of Number Square feat Floors Sq. feet Building. of Unbs•' •Rsferance Uses from the Zoning Byle v S Table t. -State number of units in Gilding(s). 7B. Proposed Building(s): Ground Floor Numberof Height Total Use of Number Square feet Rome Sq. fast Building* of Unite'• 5uvlu FOLC t. -t4 'Reference Uses from me Zoning SO- a Table 7. -State numberof units in b liding(s). 6. Petitioner and Landowner signature(s): Every application for a Riding shall be made on this form. which Is me official form of Per Zoning Board of Appeals. Every application shall be tried Vilm the Town Clerk's Offlce. It shall be the responsibility of me petitioner to fumish all supporlry dacumentabon with this application. The dated copy of Ihis application reretvad by the Torn Clerk or the Zoning Board of Appeals does not absolve the appliwnl from this responsibility.. The petitioner shall be responsible for all e,,penaes for filing and legal rwtification. Failure to comply with appl'uatiun requirements. as coed herein all in the Zoning Board Rules and Regulations may resub in a dismissal by the Zopmg Board of this applkation es incomplete. Type above mantels) here LI ZC'H'a.. YY) Fr n ✓KSSI./ 1. Minimum LolSetbs Q+ "' "1't Front SidepA Side B Rear o ., PPip o d i.+y MWmum Lot SideB In-+Se,,,L In sir¢,p4 From ameA SideB - Raw 03 13 _ b y i09 ago _ #(•a wl rrnps SF/0c Mlu m m, WE Setback {p P� Front Side Side $,93(cXo- (0_ ino0 i (2 00 TA. Existing Building(s): Ground Flax Number of Height Total Usa of Number Square feat Floors Sq. feet Building. of Unbs•' •Rsferance Uses from the Zoning Byle v S Table t. -State number of units in Gilding(s). 7B. Proposed Building(s): Ground Floor Numberof Height Total Use of Number Square feet Rome Sq. fast Building* of Unite'• 5uvlu FOLC t. -t4 'Reference Uses from me Zoning SO- a Table 7. -State numberof units in b liding(s). 6. Petitioner and Landowner signature(s): Every application for a Riding shall be made on this form. which Is me official form of Per Zoning Board of Appeals. Every application shall be tried Vilm the Town Clerk's Offlce. It shall be the responsibility of me petitioner to fumish all supporlry dacumentabon with this application. The dated copy of Ihis application reretvad by the Torn Clerk or the Zoning Board of Appeals does not absolve the appliwnl from this responsibility.. The petitioner shall be responsible for all e,,penaes for filing and legal rwtification. Failure to comply with appl'uatiun requirements. as coed herein all in the Zoning Board Rules and Regulations may resub in a dismissal by the Zopmg Board of this applkation es incomplete. Type above mantels) here LI ZC'H'a.. YY) Fr n ✓KSSI./ 1. PAGE 4 of 4 8. WRITTEN DOCUMENTATION Application for a Finding must be supported by a legibly written or typed memorandum setting forth In detail all facts relied upon. Al dimensional requirements shall be Deady identified and factually supported when requesting a Finding from the requirements of MGLA ch. 40A. and the North Andover Zoning Bylaws. All points, A -C, are required to be addressed With this application. A. The particular use proposed for the land or structure. B. Fact(s) relied upon to support a Finding that the proposed extension or atterstian shall not be more substantially detrimental than the existing conforming use. use. C. Address all appropriate details of the Building Commissioner's dental. 1g. PLAN OF LAND Each application to the Zoning Board of Appeals shall be accompanied by the following described plan(s). Plans must be submitted with this application to the Town Clark's (ice and ZBA secretary at least thirty (30) days prior to the public hearing before the Zoning Board of appeals. A set of building elevation plans by a Registered Architect may be required when the application Involves new construcdonloonversior/ and/or a proposed change in use. 10. A. Major Projects Major projects are those which involve one of the follovdrg whether existing or proposed: f) five.(5)or more parking spaces, m three (3) or more dwelling units, III) 2.000 Square feet of Wi ing area. Major Projects shall require, in addNon to the 108. & 1 o C. features, that the plans show detailed utilities, soils, and topographic information. B. -Plan Specifications: 1) size of plan: Tan (10) paper copies of a plan not to exceed 11'x17", preferred scale of 1 =4g'. m One (1) Mylar, with one block for Registry Use Only, and one block for five (5) ZBA signatures and data.. tm Plan shall be prepared, stamped and cettihed by a Registered Professional Land Surveyor. Please note that plans by a Registered Professional FINDING Engineer, Registered Amhitecl, and/or a Registered Landscape Architect may be required for Major Projects. -1 o. C. 'Required Features On Plan: 1) Site Orientation shall include: 1. north point 2, zoning distdct(s) 3. names of streets 4. waaands (if applicable) 5. abutters of property, wdhln 300' radius 6. locations of buildings on adjacent properties within 50' from applicants proposed structure 7. deed resblci ons, easements. Ica Legend & Graphic Aids shall Include: 1. Proposed features in solid lines & outlined in red 2. Existing features to be removed in dashed lines 3. Graphic Scales 4. Date of Plan 5. Title of Pian 6. Names addresses and phone numbers of the applicant, owner of record, and land surveyor. 7. Locus. til. D. Minor Projects Minor projects, such as decks, sheds, and garages, shall require only the plan information as indicated with an asterisk ('). In some cases further Information may be required 11. APPLICATION FILING FEES 11. A Notificafion fees: Applicant shall provide a check ar money order to: "Town of North Andover " for the cost of fast class, certified, return receipt x # of all parties In Interest Identified in MGLA ch. 40A §11 on the abutter's ust for the legal notice postage check. Also, the applicant shall supply first class postage stamps x the # of paries of interest an the abutters list for the decision mailing. 11. B. Mailing labels: Applicant shall provide four (4) sets of malling labels no larger than 1 "x2 -tire' (3 copies for the Legal mailing and one copy for the Decision mailing). 11. C. Applicant shall provide a check or money order to: Tawe of North AndovW per 2005 Revised Fee Schedule. FENNESSY REQUEST FOR FINDING ITEM 9 Locus, Trinitarian Congrcgatlanel Church 70 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, § 11), 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 Mussachusetts 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. His purported interpretation is entirely different from that of itis predecessor (who was cortecQ. 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 defruitions 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 raw, or existing structure, as measured from the adjacent property line of properties which ale either zoned for, or contain, residential and or educational uses of my types." Buildings are explicitly excluded from the preexisting structures referenced in Section 8.9 3 (0(v)(2), which section the Building Commissioner exclusively relies upon. __. By the explicit terms of thedefinitionsection of the wireless service -facilities portion of the North Andover Zoning Bylaw, Section 8.9 3 (c)(v)(2) does B9( apply to buildings or parts thereof [see Section 8.9.2 (q)(4)]. By its own terms, Section 8.9 3 (c)(v)(2) deals exclusively with sWeture-mounted wireless service facilities. Structure -mounted is defined so as to exclude buildings ("Structure-mounted:[Antennas =1 Mounted on a structure other than a building.") See Section 8.9.2 (q) (4). Section 8.9 3 (c)(v)(2), in fact, presents setback requirements for previously existing structures other than buildings. Therefore, Section 8.9 3 (exv)(2) does not apply at all to buildings (i.e., hue, to church buildings). In any case, wtmm 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 draped 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 stmeture, shall have a minimum setback of 600 it from residential or educationally zoned properties per the requirements of Section 8.9 3) c) v) (1). Any interpretation that Section 8.9 3) e) 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 "Irmexisting" 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 0. L. c. 40A, § I1 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 pemtt. It is the Building Commissioner who claims that the Zoning Bylaw requires a special permit. That is not true. That incorrect decision by the Building Commissioner is precisely one of his mom in interpreting the Zoning Bylaw that 1 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 die Zoning. Bylaw as. duly adopted (and recently reaffirmed) by the 2009 North Andover To" 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 follow'ne 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 MetroPCSffrinitaram Congregational Church facilities hen: wilt he within 600 It of existing residential and/or educational was, 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. 5. Argument (5) 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 Cornmissioner'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 enforoe the Zoning Bylaw ss written and adopted by Town Meeting, not that he go on a toot of his own.. 1 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 L EXHIBIT Section 8.9.2 (a) (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) Structmu mounted: Mounted on a structure other than a building [emphasis added] Section 8.9 3 (e)(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, ss measured from the adjacent property line of properties which we 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. (emphasis added] XDRTry Or �O M ` r• 9 r'r(r rohXe Jl..(� r 119CXJ=@ BUILDING DEPARTMENT Community Development Division May 19, 2009 Liotta M Fenneeny 77 Elm Street North Andover, MA 01845 Re: Metro PCS Facility at Trinitarian Congregational Church on Elm 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 budding permit to Metro PCS to install a wireless facility in the steeple of the Trinitarian Congregational Church on Elm Street. Your request for the denial of the building permit is denied for the following reasons: (1) Pursue, to Mass. Crenenl 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 fool setback referenced therein as you 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 no 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(cxv)(2) reads in part:. . 'In the event that a preexistent structure is proposed as a mourn for a wireless service facility, the setback provisions of the inning 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.' INaaneeE Hexl, Mira t4 NMLn,WM Yimn.NnuMM� 0185 taws 1n.tn}515 fa 1146Me11 neb walevineruweXO.,oa 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(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)(vx2), the project is in compliance with the setback provision of the applicable zoning district. (2) Section 8.9.3(b)(1) of the Zoning Bylaw states in part: "location: Applicants seeking approval for wireless service facilities shall comply with the following: i) If feasible, wireless service facilities Bh81I be located on preexistent structures, including but not limited to buildings or structures, preexistent tele;ommunications 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 Bylaw requires ("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, 2009, 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. However, the Planning Board believes that the applicant bas 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 Mend 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 I I 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 rosy 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 (IVIPE) limits, as indicated by the submittals and reports referenced at the end of this decision in Condition 416. The Telecommunications Act of 1996 prohibits this Board from taking health effects of RF transmissions into account beyond FCC requirements. 11. The application was reviewed by a consultant retained by the Planning Board Mark Hutchins, a certified radiofrequency engineer, who verged that the application is in compliance with the Federal Communications Commission (FCC) standards and that the application wmplies 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." in accordance with the Planning Board's Findings, and the certification by the Board's radiofixquency 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 FCC regwr=erts, that a significant gap in coverage existed, and that there we no alternative sites which are available and technically feasible to close the coverage gap. If 1 were to grant your request on the grounds you have specified 1 would prohibit the provision of personal wireless services, in violation of the Federal Act, and f respectfully decline to violate that Act. For the foregoing reasons your request is denied. Very truly yours, Gerald A Bro m Metro PCS Trinitarian Congregational Church Board of Selectmen Planning Board Zoning Board of Appeals Mark Rees Curt Bellavance Judy Tymon May 15, 2009 77 Elm Street North Andover, MA01845 Gerald Brown Zoning Enforcement Officer 1600 Osgood Street Building 20 Suite 2-35 North Andover, MA 01845 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, Seaton 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 31 c) v) (1), which states: Y) Setbacks All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which the faoility 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 progeny line, shall be 2s the height of the facility/mount, including any antennas or other appurtenances. 'I his sot backis considered the "fall zone". A minimum setback of 600 feet shall M required for all wireless devices, antenna and their mounting structures, whether attached to a new or existing structure, as measured from the adjacent pmperty 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 8.93) c) v)41) 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 34 days of your receipt of this request, as required by Chapter 40A, Section 7. Thank you for your prompt attention to this matter. S�in Liibfta M. Fennessy, Zoning Board of Appeals, Attn: Chairman Alfred Manzi III Z6 January 2009 To the Planning Board: We, the undersigned, are members of the Telecommunications subcommittee that was appointed in 2000 to study the use and placement of wireless devices within the Town of North Andover, and to modify the bylaw as appropriate based on the results of our study. Our Subcommittee wasapproved unanimously by the Board of selectmen at the August Z3, 2000 Board of Selectmen meeting. Our work culminated in the amendment of the Zoning Bylaw at the December 11, 200D Special Town Meeting. The provisions for setbacks in Section 89 of the bylaw were amended at the meeting to read as follows: v) Setbacks All wireless service facilities and their equipment shelters shall comply with the building satbaoleprovisious 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 dismnee from the We o£anyground- mounted wireless service facility to any property line, shall be 2x the height of the facility/mount, including any sstenpas or other appurvenan es. This set back is considered the "till zone". A minimum setback of 600 £cel shall be requited for all tvuelass devices; antenna end their mountmg 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, residentiat and or educational uses of any types. (2) in the event that a preexistent smrctsue Is proposed as amount fir a wisoless service feclihy, the setback provisions of the zoning distrix shall apply. In the case of the preexistent non-ecnformlog structures, wireless service facilities and their equipment shelters shall not increase any non -conformity. This is the current bylaw. We understand that there has been come confusion about the meaning ofthe bylaw wkh regard M the irntalhtion of new antennas in existing buildings. The undersigned wish to clarify the confusion, 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 it from residential or educationally toned properties per the requirements of Section 8.9 3) c) v) (1). Any Interpretation that Section 9.9 3) c) v) (2) applies to existing buildings, rather than preexisting wireless strictures, is simply Incorrect. /sKS1-ien�–cere/lyr—• ` Donald �Stewart _ ®�Lyn�n. �Av, lka`qi/v Former Member, DOS Former Member, BOS j3e.^niu. �n.JL $FJLNJCE F/Na(/7L"F } / | % ; ; ■ % } } 2 /a k}\ f )k\ }\ � �f { � {kf k \k(§ \ f�\%k / \ N� Pm. n:M.n. crw.e•wTlcnnm nEJmsfi.r xoT Mmt..Mn mos e<` .1 s a.xlM..ow FrrTxTr, uc �I wm.w alvn a 1D wl.NM[Om niws.Taw.e {I It MbM mwarsrM x6T waver. 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Feunessy 77 Elm Street, North Andover, MA Date: September 17, 2009 PROCEDURAL HISTORY RECF�IVEO 'TOWN CLE K'S OFFICE 'ZOU SEP 17 AM 11155 TOWN OF NORTH ANDOVER MASSA'uWSI%40e 110maS D. Ippoato Doniel S. Bmex, Esq. Micbuel P. Lporro Zosiu2 B„/omaasat Offiwr Gemld A. Bmwn 1. On or about May 28, 2009, L'natm M. Fennessy (hereinafter, the Appellant), of 77 Elm Street, North Andover, appealed the decision of the Building Commissioner to issue a building permit (owned by granted nted m MatroPCS Massachusetts, LLC m erect a wireless communication facility on property Trinitarian Congregational Church, 70 Elm Street, North Andover, Massachusetts per M.G.L. ch. 40 § 7, S, 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" aro hereby incorporated by reference aattached exhibits ti hereto et andel ad respectively hereof, eked by as identified by exhibit numbers one (1) through twenty ( ) the Chairman at the Public Hearing and constitute documents received as to the record. The ZBA Public Heariag contained mal testimony as set forth in the Board's written and recorded record. 3. The ZBA deliberated the matter at its meeting 11, 009 on June I8, 2009, August 11, 2009, and September 3, ed 2009. Public Hearing August q 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 Accord Vote. 5, Pnsuant to M.G.L. ch. 40A, § 15, the appeal was denied. FINDINGS 6, In a decision of the Planning Board cfNorth Andover filed with the Town Clark on March 5, 2009- MetroPCS, LLC and the Trinitarian Congregational Church obtained a special permit to erect a wireless communication facility in the steeple and basement of the Church located at 70 Ehn Street, North Page 1 of AV Andover per M.G.L. ch. 40 § 7, 8, and 15 as North Andover Zoning BY -Low Section &.9.3(cxv)(1) 7. Tho Appellant, and others, appealed the Planning Board's decision in Fournier, or o, v. stinum, at a1, C.A. No.: 2009-559-C (Basra Superior Court). 8. The Building Commissioner gremed a building permit (#628) to MetraPCS, LLC and the Trinitarian Congregational Church on or about May 18, 2009, 9. The Appellant filed her appeal with the ZBA on May 28, 2009. She alleged that the Building mg permit #628 because the proposed wireless communications facility is located within 600 feet of her residential premises, in violation of Section 8.9.3(c)(v)(1) of the Commissioner wrongfully issued build Zoning BY -Law. 10. The Appellant is a "party in interest" as defined by M.0 L. ch. 40A, § 11, The ZBA finds that Ms. Fermassy is an aggrieved Person for the purposes of this appeal. 11. The ZBA finds that the Building Commissioner property issued the building permit. The building permit was, in effect, authorized by the special permit granted by the Planning Board to MumPCS, LLC and the Trinitarian Congregational Church, filed with the Town Clerk on March 5, 2009. The Building Commissioner's decision to grant the building permit was therefore a ministerial step taken in reliance upon said special Permit. RECORD OF VOTE The Board took the following action: Upon a Motion made by Ms. M"ntyro, aeeonded by Mr. Bras to support the APPosI of Ms. Fennessy and overturn the Building lnspootora findings as set forth within the filed petition, The following members of the Zoning Board of Appeals voted In SUPPORT the appeal of Ms. Femessy: Albert P. Manzi ID, Esq. and Ellen P. McIntyre The following members of the Zoning Board of Appeals voted NOT TO SUPPORT the appeal of Ms. Fannessy: Ricbard M. Vsillancourt, Thomas D. Ippolim and Daniel S. Braese, Esq. The Chairman doelarod Ms. Fennessy's petition denied as it failed to obtain four votes in support thereof as required. Chair Filed with the Town Clerk on September 17, 2009 Page 2 of 3 APPENDIX A Exhibit #1 Letter from former Telecommunications Subcommittee (dated 1/16/09) Exhibit #2 Materials list submitted by Lizetta Fennessy (12 items) Exhibit #3 Letter from Walter Soule to John Simons/Planuing Board (dated 1/23/09) Exhibit #4 Email from B Fink to Liz Fennessy (dated 126/09) 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 1/16/09) Exhibit #7 Letter from D. Robert Nicena to Rev. Andrew M. Gilman (dated 10/24/00) Exhibit #8 Letter (Page 1) from Janet K Stearns to Mr. Robert Nicetta (dated 7/27/01) Exhibit #9 Letter (Page 2) from Janet R. Stearns to Mr. Robert Nicetta (dated 727/01) Exhibit 010 Letter from Michael McGuire to Janet R. Stearns (dated 8/l/01) Exhibit #11 Letter from D. Robert Nicene to Mr. Paul Gascoigne (dated 5/25/02) Exhibit #12 Letter from Gerald Brown to Gin Vilente (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. Fennesay(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 Letts 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 #20 North Andover Zoning By-law Submitted on August 11, 2009: Exhibit A Essex Superior Court Complain4 Civil Action No. 2009-559-C Exhibit B Letter from Attorney Peter Morin to Albert P. Manzi, M, Esquire (Zoning Board of Appeals) (dated 727/09) M.G.L. ch- 39, § 23D Participation Form(s) Page 3 of 3 EXHIBIT C TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS property Owner & Location: Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OF PROCEEDING: Appeal from a Decision of the Building inspector/Zoning Enforcement Officer that no variance is required for MetroFCS Massachusetts, LLC (Ma"PCS) or Trinitarian Congregatioaal Church to install and operate wireless communication facilities on a residentially zoned property with Less thea the 600' setback between such fataEties and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(exv) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from the North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(c)(v).. The North Andover Building Commissioner granted a building permit (#628) to MetroPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Lizeta M. Fennessy, 77 Elm Street, North Andover, filed.an appeal with the Zoning Board of Appeals on May 28, 2009, She claimed, inter alia, the Decision of the North Andover Building hupector/Zoning Enforcement Officer, Oerald A. Brown, that the 600' setback requirement of Section 8.9.3(cXv) of the Zoning Bylaw did not apply to the MehnPCS/frinitarian Congregational Church application for a building permit and that accordingly W varlanca from that requirement by the Zoning Board of Appeals was required before be could lawfully issue a building. permit She also claimed that the Budding hrspectodZoning Enforcement Officer wrongfully issued a building permit (#628) to MetmPCS and Trinitarian Congregational Church in violation of Section 8.93(cxv)-of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, provides that "[t]he decision of the board [of appeals] shall be made within one hundred days atter the date of the filing of an appeal, application or petition ... "and that "failure by the board to act within said one hundred days shall be deemed to be the gram of the appeal, application or petition." Section fifteen also refers to "approval [of petitioner's appeal] by reason of the failure of the board to act within the time prescribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Andover Town Clerk on or before September 5, 2009 (100 days after the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September P being the Saturday of the Labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, and/or granted and that she is entitled to the relief requested therein from the Decision and issuance of a building permit by the North Andover Building Inspector/Zoning Enforcement Officer. She claims the allowance of the requested findings `ghat the ZBA reverse and vacate the decision of the Building Commissioner with respect to Building Permit #628 granted 5/18/09 on the basis that an variance was granted for the 600 ft. setback required per 8.9.3(exv) of bylaw." ,,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... that the Zoning Board of Appeals reverse the decision of the Building Commissioner to issue a building permit to MettoPCS for construction and operation of commercial wireless communication facilities in the Trinitarian Congregational Church and that the building permit be vacated, rescinded, and recalled m void and of no effect." and of the other relief as requested in her appeal to the Zoning Board of Appeals. The petitioner has seat a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice specifies, as here, that appeals, if any, of this claimed coustruetive approval shall be made pursuant m Massachusetts General Laws, choptef 40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice from the petitioner that the Zoning Board of Appeals failed to ad within the time pre�bed21, 2 statute. Tits Notice is filed with the North Andover Town Clerk on Monday, Sep 09. DECLARATION OF SERVICE I, Lizcna M. Fennessy, hereby solemnly affirm and declare under the penaltim of perjury, as follows: I mailed on September 21, 2009, by United States Postel Service, fust -class mail, postage -prepaid, a true copy of NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addressee listed on the attached Setvim List at the addresses therein indicated. SIGNED UNDER THE PENALTIES OF PERJURY ON THIS TWENTY-FIRST DAY OF SEPTEMBER 2009. . Femessy i� Petitioner SERVICE LIST See attached list of addressees and addresses. Page 1 of 2 SERVICE LIST Planning Board Planning Board Albert P. Manzi lit, Esq. Daniel S. Braese, Esq. Town of Middleton 24 Main Street 21 Periwinkle Way Memorial Kali Norm Andover, MA01845 North Andover, MAD1845 48 South Main Street Middleton, MA 01949 Ellen P. Mdntyre Michael P. Uporto Zoning Board of Appeals 23 Tanglewood Lane 74 Heath Road 235 Norm Street North Andover. MA 01845 North Andover. MA01845 North Reading, MA01864 Planning Board Planning Board Richard J. Byers, Esq. Town of North Andover City of Lawrence 97 Forest Street 1600 Osgood Street City Hall North Andover. MA 01845 North Andover, MA 01845 200 Common Street u 21 Custom Hose Lawrence, Massachusetts 01840 Boston, MA 02110 Planning Board Zoning Board of Appeals Joseph O. LaGresse Town of Boxford City of Methuen - Quinn Building 140 Sugarcane Lane 7A Spofford Road 90 Hampshire St., .. North Andover. MA01845 Boxford, MA 01921 Methuen, MA 01844 Planning Board Gerald A. Brown Richard M. Vai0ancourt Town of Andover -Town Offices Zoning Enforcement Officer 454 Stevens Street 36 Bartlet Street Town of North Andover North Andover. MA 01845 Andover, MA 01810 1600 Osgood Street North Andover, MA 01845 Thomas D. Ippolim Planning BoardCity of Haverhill - City Hall Thomas J. UKmlis, Esq. 430 Osgood Street 4 Summer Street (Room 0 201) Urbelis & F1eidsteet, LLP North Andover. MA 01845 Haverhill, MA01830-5843 155 Federal Street Boston,MA 02110-1727 _. _.. MebuPCS Massachusetts, LLC Peter Morin, Esq. 285 Road , & Miler, P.C. McDermott, Quilty, Chelmsford, MA 01824 Chelmsford u 21 Custom Hose Boston, MA 02110 seavice us7 PHGe 2 of 2 rreww., I.Ai04B xu...rJ Jar.I I e1�eBW06 ewe rmw. aem w z rmmw W,v.vWawn.am nBms6r xemrvaol.. MA%W eaa�aasm� my eMgy rem � % B w.WMNrurwNWrwr ac bax manlniwaB.i wmMmr.w%bs n IB J.B.. MGVe n.W wwr6Br Mm MBo..r.w BIW II 11 WJJ Nd9w wwYU Aleel Xom MbM.w BIW 1]. 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BN.ew wWAaNi.w BIW ss v e.n.,aswNMr Wvm Wein NolvlJN.levr.w mW 55 IB BriYbl Mttw WF1n0W Nv4M bW.w BiW !b N IhyRNXetl FiN WgWO 61NrpY1501 IMUT ,M 65 M JugSMr APIurBUMt xbwl b ]t PVJwuMyf, ssPMrBbleM IINIMIw..wwoi%m a z rmc N.vwvscrBcvvr. bw. xJ.Wl60w6BWY1@ mrlWew,wbBq This cartifles that the names appearing all the r1BGafdS the Aeseseara Olflce as cf _ - V r leo Certlfled hy�pete 67,u o1 Town of North Andover ZONING BOARD OF APPEALS Albw P. Maria III, Esq. Chairman Ellen P. McIntyre, G'ix-Chedmr, Richard J. Byers, Esq. Clerk Joseph D. LaGrasse Richard XL Va tancourt FINDINGS AND DECISION RE: Appeal of Lizetta M. Fennessy 77 Elm Street, North Andover, MA Date: September 17, 2009 PROCEDURAL HISTORY TOWN E ERK 5 OFFICE 2009 SEP 17 AM 11: 55 TOWN OF NORTH ANDOVER MASSA U6uj&r Thomas D. Ippol to Daniel & Braese, Esq. Sfichael P. Upoito Zoning Enf—ext Officer Gerald A. Brown 1. On or about May 28, 2009, Limits 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 lune 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 Boards 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 Pagel of 3 AV Andover per M.G.L. ch. 40 § 7, 8, and 15 as North Andover Zoning By -Law Section 8.9.3(c)(v)(1) 7. The Appellant, and others, appealed the Planning Board's decision in Fournier, et at v. Simons, et al, C.A. No.: 2009-559-C (Essex Superior Court). 8. The Building Commissioner granted a building permit (#628) to MetroPCS, LLC and the Trinitarian Congregational Church on or about May 18, 2009. 9. The Appellant filed her appeal with the ZBA on May 28, 2009. She alleged that the Building Commissioner wrongfully issued building permit #628 because the proposed wireless communications facility is located within 600 feet of her residential premises, in violation of Section 8.9.3(c)(vx I) of the Zoning By -Law. 10. The Appellant is a "party in interest" as defined by M.G.L. ch. 40A, § 11. The ZBA finds that Ms. Fennessy is an aggrieved person for the purposes of this appeal. 11. The ZBA finds that the Building Commissioner properly issued the building permit. The building permit was, in effect, authorized by the special permit granted by the Planning Board to MetroPCS, LLC and the Trinitarian Congregational Church, filed with the Town Clerk on March 5, 2009. The Building Commissioner's decision to grant the building permit was therefore a ministerial step taken in reliance upon said special permit. RECORD OF VOTE The Board took the following action: Upon a Motion made by Ms. Mcintyre, seconded by Mr. Braese, to support the Appeal of Ms. Fennessy and overturn the Building Inspectors findings as set forth within the filed petition, The following members of the Zoning Board of Appeals voted to SUPPORT the appeal of Ms. Fennessy: Albert P. Manzi III, Esq. and Ellen P. McIntyre The following members of the Zoning Board of Appeals voted NOT TO SUPPORT the appeal of Ms. Fennessy: Richard M. Vaillancourt, Thomas D. Ippolim and Daniel S. Braese, Esq. The Chairman declared Ms. Fennessy's petition denied as it failed to obtain four votes in support thereof as required. Chair q n Filed with the Town Clerk on September 17, 2009 Page 2 of 3 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. Steams to Mr. Robert Nicetta (dated 7/27/01) Exhibit #9 Letter (Page 2) from Janet R. Steams 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 #20 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) Page 3 of 3 Albert P. Manzi III, Esq. Chsim,as Ellen P. McIntym, 17o-Cbaim,as Richard J. Byers, Esq. Clerk Joseph D. LaGrasse Richard M. Paillancourt Town of North Andover ZONING BOARD OF APPEALS FINDINGS AND DECISION RE: Appeal of Lizetta M. Fennessy 77 Elm Street, North Andover, MA Date: September 17, 2009 PROCEDURAL HISTORY TOW4 E i El S ° FICE 2009 SEP 17 AM 11: 55 T(F.YN 'UP NORTH P,NOCYE? MASSACWAg*#S,, Thomas D. Ippolito Daniel S. Bnese, Esq, Shchael P. Lipon. Zssisg Es/onem'sl of/ Gerald A. Brawn I. 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)(vx1). 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 I of 3 AV Andover per M.G.L. ch. 40 § 7, 8, and 15 as North Andover Zoning By -Law Section 8.9.3(c)(vxl ). 7. The Appellant, and others, appealed the Planning Board's decision in Fournier, et al x Simons, et al, C.A. No.: 2009-559-C (Essex Superior Court). 8. The Building Commissioner granted a building permit (#628) to MetroPCS, LLC and the Trinitarian Congregational Church on or about May 18, 2009. 9. The Appellant filed her appeal with the ZBA on May 28, 2009. She alleged that the Building Commissioner wrongfully issued building permit #628 because the proposed wireless communications facility is located within 600 feet of her residential premises, in violation of Section 8.9.3(c)(v)(1) of the Zoning By -Law. 10. The Appellant is a "party in interest" as defined by M.G.L. ch. 40A, § 11. The ZBA finds that Ms. Fennessy is an aggrieved person for the purposes of this appeal. 11. The ZBA finds that the Building Commissioner properly issued the building permit. The building permit was, in effect, authorized by the special permit granted by the Planning Board to MetroPCS, LLC and the Trinitarian Congregational Church, filed with the Town Clerk on March 5, 2009. The Building Commissioner's decision to grant the building permit was therefore a ministerial step taken in reliance upon said special permit. RECORD OF VOTE The Board took the following action: Upon a Motion made by Ms. Mcintyre, seconded by Mr. Braese, to support the Appeal of Ms. Fennessy and overturn the Building Inspectors findings as set forth within the filed petition, The following members of the Zoning Board of Appeals voted to SUPPORT the appeal of Ms. Fennessy: Albert P. Manzi 111, Esq. and Ellen P. McIntyre The following members of the Zoning Board of Appeals voted NOT TO SUPPORT the appeal of Ms. Fennessy: Richard M. Vaillancourt, Thomas D. Ippolito and Daniel S. Breese, Esq. The Chairman declared Ms. Fennessy's petition denied as it failed to obtain four votes in support thereof as required. Chairruim Filed with the Town Clerk on September 17, 2009 Page 2 of 3 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. Steams to Mr. Robert Nicetta (dated 7/27/01) Exhibit 410 Letter from Michael McGuire to Janet R. Steams (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 thin F Exhibit #19 North Andover Town Charter Exhibit #20 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,111, Esquire (Zoning Board of Appeals) (dated 7/27/09) M.G.L. ch. 39, § 23D Participation Form(s) Page 3 of 3 I'm: Peter Marin TO: own Clerk (1 978 6 889 5 57) 13:4810109109GMT-04 Pg 0147 I A To; Twm Clerk From Peter Morin Fuc 19786889557 Pages: 37 Rs MeocPCS v. Fennessey note: Oct 09, 2009 Urgent For Rwlew Please Please Reply For comment Information e cmutents: Dear Ms. Bradshaw: Enclosetl please find my Notice of Appeal and the Complaint filed with the Land Court today. Please time stamp the Notice letter and provide me wth a copy via email (ptimonn@comoast. net), if you could. Thank you for your assistance and courtesyl Peter Morin m:Peter Morin To:Town Clerk (197861189567) 13:4810109MMT44 P00297 PETER B. MORIN, ESQ. OF COUNSEL, MCDERMOTT QUILTY & MILLER LLP 131 OLIVER STREET 5" FLOOR BOSTON, MA 02110 781-985-0789 tel. 866-380.6570 fax PMORIN@MQMLLP.COM October 12, 2009 Ms. Joyce Bradshaw, Town Clerk Town of North Andover 120 Main Street North Andover, MA 01845 Re: MetroPCS Massachusetts LLC v. Fennessey et als Dear Ms. Bradshaw. Please take note that MetroPCS Massachusetts LLC has filed an action in the Massachusetts Land Court pursuant to G. L. c. 40A §17 challenging the Notice of Constructive Approval filed with your office on September 21, 2009 by Lizetta Fennessey. A copy of the Complaint is enclosed herein Very truly yours, /S/ Peter B. Morin 'm: Peter Morin To. Town Clerk (19786889557) 13:48 IOIOW nCMT-04 Pp (13-37 PETER B. MORIN, EsQ. OF COUNSEL, MCDERMOTr QUIL7Y & MILLER LLP 131 OLIVER STREET 5" FLOOR BOSTON, MA 02110 781-985-0789 tel. PMORIN@MQMLLP.COM October 9, 2009 Land Court Department of the Trial Court 226 Causeway Street Boston, MA 02114 866.380-6570 fax Re: MetroPCS Massachusetts LLC v. Fennesscy ct als. Dear Sir or Madam: Enclosed please find the Complaint in the above -captioned matter. Thank you for your assistance. Very truly yours, _- Peter B. Morin m 1peter Morin TO:Town Clerk (18786889557) 13:4810/09109GMT-04 Pg 11-37 oeml nerwill complete Il ms STEP 1: ADMINISTRATOR PERMIT DENIAL The pehtimer applies for a Building Permit and mcs"M a Zoning Bylaw Denial tom completed by the Building Commissioner, STEP 2' FINDING APPLICATION FORM: pemimer completes an application form to petition the Board of Appeals for a Findlog..511 informal to.-. as required in hems 1 through and including 11 shall be completed. STEP 3• PLAN PREPARATION- Petkionar submits all of the required plan Information as cited in segtion 10, page 4 of this form. STEP 4 OBTAIN LIST OF PARTIES IN INTEREST: The petitioner requests the Assessor's Office to compile a certified list of Parties in Interest (abutters). STEP 7, DELIVERY OF LEGALNOTICE TO NEWSPAPER The petitioner pica up the legal notice from Ina Office of Zoning Board of Appeals end delivers the legal notice to the local newspaper publication. STEP aPUBLIC NEARING BEFORE THE ZOMNG BOARD OF APPEALS: The petitioner should appear in NOW beha8, or be mpmeemed by an agent or attorney. in the apsenee of any appeawoe without due muse on behalf of the paationer, the Board shall decide on the matter by using the Intonation it has otherwise received. STEP It, DECISION: Afterthe hearing, a copy of4he Board's decision wol be sem t6 all Parties in interest, Any appeal of the Spard's decision may be made purwanl to Massachusetts General Law ch. 40A § 17, within twenty (20) days after the decision is filed with the Town clerk. _.__.. -STEPS SUBMITAPPLICATION: STEP 10• RECORDING THE DECISION. AND. PLANS. Petitioner submits one (1) original and ten (10) Xerox 3� copies of all the required information to me TOwr1 Clerk's the decision and any accompanying plans at the Essex Off" to oe certified by the Tom Clerk with the time County, North Registry of Deeds, 384 Common St., antl date of filing. The original wilt be haft at the Town FINDING Clam's Of ice, and the 10 Xemx copies will he left with TOWN OF NORTH ANDOVER the Zoning Board of Appeals secretary. ZONING BOARD OF APPEALS NAME LIZe+ta, M FPI^0P551/ fir^ ADDRESS OF APPEAL: '7P Efw, S7 rret: F .'.-Tarwlndar 7yr+etrm Procedure & Requirements 978-588-9533 onto of Community Dev. A Services for an Application for a Finding 1800 Osgood St.. Bldg. 20, Suite 2-56 North Andover, MA 01845 Ten (10) mpks of aro ronowing information must be STEP 6: SCHEDULING OF HEARING AND submitted thirty W days prior to the first pudic hearing. Failure N wbmff the required Information within the PREPARATION OF LEGAL NOTICE: The Office of the Zoning Board of Appeals schedules time WOOS prescribed may resuh In a dismissal by the the apparent for a hearing date and prepares the legal Board of an application as Incom lete. notice for mailing to the parties In intemest ebafters) and rmation herein t5 an abstract of mare spa for Publication in the newspaper. The petitioner is notified that the NBaI notice has been prepared eM the ments listed In the Zoning Board Rules and rRebns end is nolmeamto supersede them. The cog of the Party in Interest fee. N tare umertined BOARD OF APKALS oeml nerwill complete Il ms STEP 1: ADMINISTRATOR PERMIT DENIAL The pehtimer applies for a Building Permit and mcs"M a Zoning Bylaw Denial tom completed by the Building Commissioner, STEP 2' FINDING APPLICATION FORM: pemimer completes an application form to petition the Board of Appeals for a Findlog..511 informal to.-. as required in hems 1 through and including 11 shall be completed. STEP 3• PLAN PREPARATION- Petkionar submits all of the required plan Information as cited in segtion 10, page 4 of this form. STEP 4 OBTAIN LIST OF PARTIES IN INTEREST: The petitioner requests the Assessor's Office to compile a certified list of Parties in Interest (abutters). STEP 7, DELIVERY OF LEGALNOTICE TO NEWSPAPER The petitioner pica up the legal notice from Ina Office of Zoning Board of Appeals end delivers the legal notice to the local newspaper publication. STEP aPUBLIC NEARING BEFORE THE ZOMNG BOARD OF APPEALS: The petitioner should appear in NOW beha8, or be mpmeemed by an agent or attorney. in the apsenee of any appeawoe without due muse on behalf of the paationer, the Board shall decide on the matter by using the Intonation it has otherwise received. STEP It, DECISION: Afterthe hearing, a copy of4he Board's decision wol be sem t6 all Parties in interest, Any appeal of the Spard's decision may be made purwanl to Massachusetts General Law ch. 40A § 17, within twenty (20) days after the decision is filed with the Town clerk. _.__.. -STEPS SUBMITAPPLICATION: STEP 10• RECORDING THE DECISION. AND. PLANS. Petitioner submits one (1) original and ten (10) Xerox The petitioner is responsible for recording certification of copies of all the required information to me TOwr1 Clerk's the decision and any accompanying plans at the Essex Off" to oe certified by the Tom Clerk with the time County, North Registry of Deeds, 384 Common St., antl date of filing. The original wilt be haft at the Town Suite µ304, Lawrenm MA, 01043 and shall complete the Clam's Of ice, and the 10 Xemx copies will he left with Cemficabw of Recording corm and forward It to the the Zoning Board of Appeals secretary. Zoning Board of Appeals and to the Building Depanmem -. ... Tnoi6tii�rmuoihrmirirexdi0191fiaimddrv`uNfid"rtlAetlntlio�tdfNiu�fi�%faritl'AhNN IMPORTANT PHONE NUMBERS: 978-588-9533 onto of Community Dev. A Services North Andover Town Hall 120 Main Street 1800 Osgood St.. Bldg. 20, Suite 2-56 North Andover, MA 01845 976A88-9501 Town Clerk's Office 978-5BB-9542 fax for Community Development offices 978860-8566 Assessor`s Office 978-888 9545 Building [)apartment aeBN9 1 miff Board of Appeals Office to I��' PAGE 1of4 MAY 282009 �1 117 BOARD OF APKALS 'm:Peter Morin To:Town Clerk (19T86e88557) 13:48 10109109GMT-04 Pg 12-37 PAGE 2 OF 4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a FINDING Piease can ldo all items 1-11 babas: 1. Petitioner: 'Name, *Address and telephone number: 'The pe8donw steel be enlared on Bte legal notice aM me decielon as entered wove. 2. Owners of Land: Name, Address, telephone number, and number of years under this Years Owned Land: S i ncr I (P5 = 3. Location of Property: e. Street: %D Jr 1irWr-:t Zoning District: RI./ b. Assessors: Map number. 42 Lot Number: a c. Registry of Deeds: Book Number: LQ3- p Page Number a dr I 4. Zoning Bylaw Seetion(s)e under which the petition for the Finding is made. g ctydr S . 3 72Xv) 'Refer to the Zoning Bylaw Denial and Plan Review hl native form as supplied by 018 lnapaetdr of BWldings. c ne.e..eihn fhe Findino rpmest: The ebaw dabs,ptba shell ba used for the purpow of the batl Maio and decision. Amass "bund descriti Is nquired purwent to the Zonbq Board Pules end Reguladons es cited on page 4. section 9 of this apPdcaaon. Fsllurs by me appbwnt to d®ulbe the r bbl clearly may result Ina d'heion that does not sadness the Intent of Me appileart The a eiblon will be timlbd to the reglxst by Me apPIkanl -and will not involve addftbnal items rat Included above. 6A Difference from Zoning Bylaw requirements: Infill ata the dimenslon(s) that will not meet current Zoning aylaw Requirements. (Unes A and B are in case of a lot split) W Area Open spaca Percentwe l-ot Frontage Parking (/.)f. v fbA ✓n -e 6 Sq. Ft Sq. Ft. Coverage Feet spaces Fran Side A Side 6 Rear A. A) A AJ A /0 A R PA 1S 109_ �. 'm:Peter Marin To:Town Clerk (19786899557) 13:48 10109109GMT-04 Pg 04-37 Commonwealth of Massachuseas Land Court Department of We Trial Court Case Na. Civil Cover Sheet First Piaimif(R7.�'�1'O PGS 1110$$dL�1vg^sfi[:irsr Uetiodmi._1=en.E,¢SSt�_.___. ��o Locus Address/Uescription Cityffown-ANc4p�LfCf , /ttSfn4CftOng 1P C,... �y Part I - Tu Be Completed by Phiatif (W Counsal: S? LO FOR ALL MISCELLANEOUS CASES (EXCEPT cures filed pulvaaat % Servicenemhen Civil Relief Act): � I. Using the list below, pluzse number, with the Number 1, oK main cause olfaction on which you hese Y.., comph im and 2. Phxe a check mark next to eadr other cause ofackon in your complaint. sad and 3. Is this complaint vmtied? ❑ Yes IW No 4. Amthore any reloled caws filed in tis Land Coon Departri? ❑ Ycs No II'yw.pk,C Pmvidel6c Cao No,(,0 7AC Appud arae, LaninF'Plemmi Boats G. L. C. 40.1.1 17 TM) Arae) Dean lasing Doaa G. L c. 41, § gl1IR ! A Validity or Zoamg G. L a. 240.1 MA, IRS, § 19 V, ) l.BN Isfirwlsaa of Zoning G. L. C. 40A, § 7 C(7f Remnvc Ckud rm Thk G.L4.2ao,§6.10 NMI thwou,aof GIdmortme G. L, c. 240.4 15 LVl Alun Tm Folccklalrc- Land of MAN Lov Value -G.L ,60,§SOB m4TD In 1W. G. L. C. 2N1, 4 1- 5 MWA Rauvct FrcollNd Fmc(Wrir of Emmy) -(i. L. C. 277 MRC Dclmlrinc Vagdhy of Imaevbeao ARA G. Lc. 240, it 11-14 CT:R Col. It siclions OTA G. L. C. 240, 4 FOA - 1042 I MAD Ikmrminc fiduciary Audown, G. L. m 240,127 PAR liltilim C L. c 211 RED Radmadnn G. L. a M.176 W $aif, PMtmmleocc of Contras G. 1... c 185-11(k) MDF Determine Munte dl Ra ux1roos C L. c. 42.112 WE -lklenaiw 9oladarics of FIaR G. I.. c 240, § 19 LTR. Corroreri-G. 1.. c. 249, 44 MAN Mmdsnuv-G. L. c. 20.15 'r1AF Tleovdss to Rol kAnae Involving 'fide - G. L e. 183,1 1(0) FOA Nuiuble Action Uwlvmg Any Right, file or Imerta in Lud G. LC 195, 11 R) ARA .ARaoll Ratdsg AryRal a L.c400,421 OTA DI6p 'm:Peter Morin To: Town Clerk (19788888557) 13:48 10109109GMT-04 Pg 05-37 Pan IL - Dollar. Counsel Certifmate -to be filled .ttby Plaintilli Counsel W the time of initial filing. All other caa svel sM8 file within tWay (30) days of inkial entry W. the case, whether by answer, mesion, appearance or other pleading. FOR ALL MISCELLANEOUS CASES (EXCEPT Mortgage Foreclosure; under the Servicememherf Civil Relief Act) lam atlomryaf-remrd f.:_M6fYU Plainti(LDct'mdanl th the ebove-e.itled mane;. If Defendam(a)' Aftoeae-v, plea., provide Case No. In meourdeoa with Rulc 5 ofdse Suprema Judicial Uniform Rules on Dispute Resolution (SIC Rule 1:18) which s..s in pet:"... Attorneys shall: provide their clients with this mfaamation about whit-wnnected dispute resolution; discus with their client The advantages and disadvantages of the various metbods of dispute maelution: and cnity their compliance with this requirement to The civilrover sheet orits equivalent . Iherebyceniiffy,hW1�wmpliodwllhthis men�,.��//�� BBOa ;�',l..�S_JIpremrc onf�--A-Lpweeyrof.Puord ._ please Not Nanee, Faempt Cases: Tax Foreclosures, Mortgage Foreclosures antler the Senice.c.bem Civil Relief Act and all cases related To....iota1 ead subsequent r Ile ratios under G. L, r. 185, § L m: Peter Morin To:Town Clerk (1 978 6 889 5 57) ESSEX, ss. 13: 4810109109GMT-04 Pg 06-37 COMMONWEALTH OF MASSACHUSETTS LAND COURT NO. 2009- METROPCS OF MASSACHUSETTS LLC PLAINTIFF LIZ.F.TTA FENNESSEY, and ALBERT P. MANZI, lel, ELLEN P. MCINTYRE, RICHARD J. BYERS, JOSEPH LaGRASSE, RICHARD M. VAILLANCOURT, THOMAS D. IPPOLITO, DANIEL BRAESE and MICHAEL P. LIPORTO, as they are members of the North Andover Zoning Board of Appeals DEFENDANTS COMPLAINT Introduction This is a Complaint challenging the Defendant Lizetta Fennessey's Notice pursuant to G. L. c. 40A §15 that her appeal to the Zoning Board of Appeals ("the Board") has been constructively approved by virtue of the Board's alleged failure to act within the time provided by statute. The record evidence clearly and unequivocally demonstrates that the Board acted upon Fennessey's appeal within the required one hundred days of her filing, and that it filed its written decision with the Town Clerk within 14 days of said action, all in compliance with the statute. The record also reveals 'm: Peter Morin To. Town Clerk (19786889557) 13:48 10109109GMT-04 Pg 0737 that Ms. Fennessey's Notice was not filed in compliance with §15, and her claim must be dismissed. Parties I. The Plaintiff, MCtroPCS of Massachusetts LLC, is a Massachusetts limited liability company with a principal address of 285 Billerica Rd., 3rd Floor, Chelmsford, NIA 01824. 2. The Defendant, Lizetta Fennessey resides at 77 Elm Street, North Andover, MA. 3. The Defendant,Albert P. Manzi, Ill, is a duly appointed member of the North Andover Zoning Board of Appeals, 4. The Defendant, Ellen P. McIntyre, is a duly appointed member of the North Andover Zoning Board of Appeals. 5. The Defendant, Richard J. Byers, is a duly appointed member of the North Andover Zoning Board of Appeals, 6. The Defendant, Joseph D. LaGrasse, is a duly appointed member of the North Andover Zoning Board of Appeals. 7. The Defendant, Richard M. Vaillancourt, is a duly appointed member of the North Andover Zoning Board of Appeals. 8. The Defendant, Thomas D. Ippolito, is a duly appointed member of the North Andover Zoning Board of Appeals. 9. The Defendant, Daniel S. Briese, is a duly appointed member of the North Andover Zoning Board of Appeals. I'm:Peter Morin To:Town Clerk (18786888657) 13:48 10109109GMT-0 P9 OB -37 10. The Defendant, Michael P. Liporto, is a duly appointed member of the North Andover Zoning Board of Appeals. Statement of Case 11. On May 28, 2009, Fennessey filed an appeal of the decision of the Building Commissioner by which he issued building permit 4628 to MetroPCS. A copy of Fennessey's appeal is attached hereto as Exhibit A. 12. The Board held a public hearing on the matter on June 18, 2009 and August 11, 2009. The public hearing was closed on August 11, 2009. 13. On September 3, 2009, ninety-eight days from the date the appeal was filed with the Town Clerk, the Board voted two in favor, three against, a motion to uphold Fennessey's appeal. The Board's vote constituted an "act" on F ennessey's appeal as the term is used in G. L. c. 40A § 15. 14. On September 17, 2009, fourteen days from the date of its action, the Board caused a copy of its decision to be filed with the Town Clerk. A copy of the Board's decision is attached hereto as Exhibit B. 15. On September 21, 2009, Fennessey filed a document entitled "Notice of Constructive Approval of Petitioner's Appeal and Grant of the Relief Requested Therein" with the Notch Andover Town Clerk. A copy of said Notice is attached hereto as Exhibit C. WHEREFORE, the Plaintiff requests that this Honorable Court find and declare as follows: m:Peter Morin To:Town Clerk (19788888557) 13:4810109109GMT-04 Pg 08-37 A. The Board's September 3, 2009 vote of 2-3 denying Fennessey's appeal constitutes action on the appeal within one hundred days from the date of filing and is therefore in conformance with G. L. c. 40A § 15; B. The filing of the written decision on September 17, 2009, within 14 days of its action on the appeal is in conformance with G. L. c. 40A §15; C. Fennessey's filing of the Notice of Constructive Approval on September 21, 2009 is untimely, as it was filed more than 14 days from the expiration of the one hundred days (September 5, 2009) as required by G. L. c. 40A § 15; D. Judgment shall forthwith enter for the Plaintiff; E. The Notice of Constructive Approval was filed with malice, and in bad faith. Respectfully submitted, MetroPCS of Massachusetts LLC By its attorney, Lam/, �• PETER B. B. MORIN, ESQUIRE (BBO#355155A) McDermott Quilty & Miller LLP 131 Oliver Street _..._ _.. Boston. MA 02110 617-946-0600 tel. 617-946-4624 fax. pmorin@mgmllp.corn :m:Pebr Morin To:Tmn Clerk (19786889557) 13:413 10109109GMT-04 Pg 10-37 EXHIBIT A m. Peter Morin To: Town Clerk t19786B895571 13:48 10109109GMT-04 Pg 33-37 Andover Town Clark on or before September 5, 2009 (100 days after the application was filed on May 28, 2009) or on or before Tuesday, September 8, 2009 (September 5'^ being the Saturday of the Labor Day weekend). The petitioner claims that her petition and appeal has been affirmed, approved, andlor granted and that she is entitled w the relief requested therein from the Decision and issuance of a building permit by the North Andover Building InspectodZoning Eoforcemem Officer. She claims the allowance of the requested findings "that the ZBA reversc and vacate the decision of the Building Commissioner with respect to Building Permit 8628 granted 5/18109 on the basis that no varlanw was granted for the 600 ft. setback required per 8.9.3(c)(v) of the bylaw." "that the Zoning Board of Appeals reverse and vacate the decision of the Building Commissioner with inspect to the setback provisions of the Zoning Bylaw for residences and schools... that the Zoning Board of Appeals reverse the decision of the Building Commissioner to issue a building pemul to MetmPCS for construction and operation of commercial wireless communication facilities in the Trinitarian Congregations] Church and that the building permit be vacated, rescinded, and recalled as void and of no effect." and of the other relief w requested in her appeal to the Zoning Board of Appeals. The petitioner has sent a copy of this Notice by mail to parties in interest (see the attached Declaration of Service, incorporated herein). Each such Notice speci irs, as here, that appeals, if any, ofthis claimed constructive approval shall be made Pasteur to Massachusetts General Laws, ch&pWr40A, section seventeen, and shall be filed within twenty days after the date the North Andover Town Clerk received this written Notice Brom the petitioner that the Zoning Board of Appeals failed to act within the time prescribed by statute. This Notice is filed with the North Andover Town Clerk on Monday, September 21, 2009. 4LM .Feumassy. I'm: Peter Morin TORown Clerk (19786889557) 13:48 10109109GMT-04 Pg 34-37 DECLARATION OF SERVICE 1, Lizette H. Fctmessy, hereby solemnly affirm and declare under the penalties of perjury, as follows: I mailed an September 21, 2009, by Urdted States Postal Service, first-class mail, postage -prepaid, s Moe copy of NOTICE OF CONSTRUCTIVE APPROVAL OP PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN to each addtessco listed on the attached Sorvice List at the addresses dietcin indicated SIGNED UNDER THE PENALTIES OF PERJURY ON TIES TWENTY-FIRST DAY OF SEPTEMBER, 2009. &" Fennessy Pilmoner SERVICE LIST Sec attached list of addressees and addresses. m: Peter Morin To: Town Clerk (19786889557) Albert P. Manzi III, Esq. 24 Main Street North Andover, 101845 Ellen P. McIntyre 23 Tanglewood Lane North Andover. MA 01845 Richard J. Byers, Esq. 97 Forest Street North Andover. MA01845 I Joseph O. LaGasse 140 Sugarcane Lane North Andover. MA 01845 I>> Richard M. Vaillanoourt 454 Stevens Street North Andover. MA 01845 Thomas D. Ippolho 430 Osgood Street North Andover. MA01845 Peter Morin, Esq. McDermott, c ugty, & killer. P.C. 21 Custom House Boston, MA 02110 13:48 10109109GMT-04 Pg 35.37 Page 1 of 2 SERVICE LIST Daniel S. Braese, Esq. 21 Periwinkle Way North Andover, MA 01045 Michael P. Liporto 74 Heath Road North Andover. MA01845 Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Planning Board Town of Boxford 7A Spofford Road Boxford, MA 01921 Planning Board Town of Andover -Town Offices 36 gantlet Street Andover, MA 03810 Planning Board City of Haverhill - City Hall 4 Summer Street IRoom R 201) Haverhill, MA0U30-5843 MetroPCS Massachusetts, LLC 295 Billerica Road Chelmsford , MA 01824 Planning Board Townof Middleton Memorial Hall 48 South Main Street Middleton, MA01949 Zoning Board of Appeals 235 North Street North Beading, MA01864 Planning Board City of Lawrence city Hall 200 Common Street Lawrence, Massachusetts01840 Zoning Board of Appeals City Cf Methuen - Quinn Building 90 Hampshire St-, Methuen, MA 01844 Gerald A. Brown Zoning Enforcement Of9cer Town of North Andover 16000sgood Street North Andover, MA 01845 Thomas J. Urbelis, Esq. Uri & Fleldsteet, LLP 155 Federal Street Boston,. MA 02110.1727 I'm:Peter Morin To.Town Clerk (19786889557) SeAVICE usT -.1 tiw .1 le ., 1.r )> , f 13:48 10109109GMT-04 Pg 36-37 PHG E 2 6 P 2- �r ,NC PPS iMmW CwpgebnEClwN l: an9ba� NaNMMs.w 01N5 PpYffiflnmY9 plre VSS' C➢:m d� N ween MamWiwnllfwn. 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Existing Lot: Lot Area Openspece Peleent Lot Frontage Parking Minimum Lot Setback Sqq-Ftt Sq. Ft Coverage Feet Spam Front SSi�dep0 /Side B Rear N 3 -L , pNp oss��� 6C. Proposed Lot(s): (UlydCii l-acd,+y Lm Area Open Speca Pamanl Lol Frontage Parking Minbrom lot Setback IA S#e¢.pL, Sq FL Sq. FL Coverage Feat Spam From Side A Side 8 Rs-.- 13 sac, q tog 200 . 6 D. Required Lot: (As required bl Zoning Bylaw & Table 2){-p- vjr reMO 5Crvlc Wilson, Opan Spam lamemlAl Frontage Parking Minimum Lot setback jr Kr Sq. R Sq. FL Covera,. Fast Spans Front Side A Side B 7A. Existing Building(s): Ground Fbor Number of Height Total Use of Number Swam feel Floss Sq. fest Building' of Unke" NA -- y GYIVYC I 'Reference Uses Nom the Zoning Bylaw S Table 1. ^Stale number of urges in bugdng(s). 76. Proposed Building(s): Gm.M Floor Numb.of Height Total Use of Norther Square feat Floors Sq. leen &dining' of'Jnila" C%r'r,(2(CUd Ww(.F55 Wyi� _ ------- --'Reference Uses from lin Zoning Bylaw d Table 1. "State number of writs in buadng(s} B. Petitioner and Landowner signature(s): Every application for a Finding shall ne made on this from, which is Ne broad krm "a Zomig Rome! of Appeals. Every application shall ba filed with tin Town Carl Oil It shall be Ne mar,onsiNNny of the petitioner to famish all supportg documentation with, this applimgar. The dated copy or Ihis application ab elved by the Tom Clerk or the Zoning Boer of Apmsla does not absti the applimin frau ibis amparib ibilRy.. The petitioner shall be responsible for all ealames for filing and legal notl5catiun. Failure to wmply War application requirement., s, and haain and In ase Zonag Board Rhes and Regulators may result in a dsmissal by the ZV49 Bram of this application es inoanplete. Type above names) here' 1-(Zeft0.- M E- Y-KSSv k 'm: Peter Morin To: Town Clerk (19786889557) PAGE 4 of 4 9. WRITTEN DOCUMENTATION Application for a Finding must be supported by a legibly written or typed memorandum setting forth in detall all facts relied upon. An dimensional requirements shall be steady identified and factually supported when requesting a Finding from the requirements of MGLA ch. 40A, and the North Andover Zoning Bylaws. All points, A -C, are required to be addressed with this application. A. The parOouar use proposed fpr the land or structure. B. Fact(s) relied upon to support a Finding that the proposed extension or Situation shall not be more substantially detrimental than the existing non- conforming use. C. Address all appropriate details of the Building Commissioners denial. in. PLAN OF LAND Each application to the Zoning Board of Appeals shall be accompanied by the following described plants). Plans must be submitted with this application to the Town Clerk's Office and ZBA s=.cretary at least thirty (30) days prior to the public hearing before the Zoning Board of appeal, A set of building elevation plans by a Registered Architect may be required when the application involves new consbuctlonlwnvers10n1 andlor a proposed change in use. 10. A Major Projects Major pmjects are those whicn involve one of the following whether epdsting or proposed: U five (5) or more parking spaces, TQ three (3) or mora dwelling units. Ill) 2,000 square feet of building area. Major Projects shall require, in addition to the 108. & 10 C. features, that the pans show detailed utilises, soils, and topographic information. -10. B. `Plan Specifications: 1) size of plan: Ten 10 ) paper copies of a plan not to exceed 11"x17", preferred scale of =M1'. 11) One (1) Mylar, with one block for Registry Use Only, and one dock for two (5) 7BA signatures and date.. Ito Plan shall be prepared, stamped and catified by a Registered Professional Land Surveyor. Please note that plans by a Registered Professional 13:48 10109109GMT-04 Pg 14-37 FINDING Engineer, Registered Architect, and/or a Registered Landscape Architect may be required fur Moor Projects. `10. C. `Required Features On Plan: D Site Orientation shall Include: 1. nod point 2. miring dialdq(s) 3, names of streets 4, wetlands (if applicable) 5. abutters of property, within 300' radius 6. locations of bulldirgs on adjacent properties within 50' from applicants proposed structure 7. deedreabictionseasemards. m Legend & Graphic Aids shall include: t. Proposed features in solid lines & outined in red 2. Existing features to be removed in dashed tines 3. Graphic Scales 4. Dade of Plan 5. Title of Plan 6. Names addresses and phone numbers of the applicant, owner of record, and land surveyor. T. Lucus. 10.0. minor Projects Minor projects, such as decks, sheds, and garages. shall require only the plan information as incirated with an asterisk (7. In some cases further Information may be required 11. APPLICATION FILING FEES 17. A. Notification fees: Apt#icant shall provide a check or money order to; "Town of North Andover' for the cosi of first class, certified, realm receipt x # of all parties in interest identified in MGLA ch. 40A §t 1 on tie abutter's list for the legal notice postage check. Also, the applicant shall supply firs) class postage stamps x the # M paries of interest on the abutter's list for Ne decision mailing. 11. B. Mailing labels: Applicant shag provide four (4) sell of mailing labels no:arger than 1W-518' (3 copies for the Legal mailing and one copy for the Decision mailing). 11. C. Applicant shall provide a check or money order to: "Town of North Andover- per 2005 Revised Fee Schedule. 'm:Peter Morin To: Town Clerk (19786898557) 13:48 10)09109GMT-04 Pg 15-37 FENNESSY REQUEST FOR FINDING ITEM Locus: Trimilarian Congregational Church 70 Elm Street, North Andover Lizena M. Fennessy, , an abutter to the locus and a party in interest with respect to the locus (within meaning of G,L. a 40A, § 11), hereby appeals to the North Andover Zoning Board of Appeals as an aggrieved party pursuant to G.L. c. 40A, § 8, and die 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 convnunications facilities on that locus, which lies in a residentially coned 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 13, 2009 (copy attached). In rejecting my request for enforcement, the Building Commissioner advances five (5). enumerated reasons. I. In argument (1), the Building Commissioner defends his previous interpretations of Section 8.9 3 (cxv) of the Zoning Bylaw. His purported interpretation is entirely different from that of his predecessor (who was correct). In my 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 feel 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 wood 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 (cXv)(2), which section the Building Commissioner exclusively relies upon. -- By the explicitterms of thedefinitionsection of the wireless service facilities portion Cf the North Andover Zoning Bylaw, Section 8.9 3 (eXvx2) does ndd apply to buildings or parts thereof [see Section 8.9.2 (qX4)). By its own terms, Section 8.9 3 (cXv)(2) deals exclusively'with structure -mounted wireless service facilities. Structure -mounted is defined so as to exclude buildings ("StniCture-mowted:[Antennas are] Mounted on a structure other flum a baildin") See Section 8.9.2 (q) (4). Section 8.9 3 (c)(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 (Le, Fere, to church buildings). In any case, where an adjacent parcel contains an educational or residential use, new or existing structmes for wireless service facilities require a 600 it setback. 'wlieter Morin To: Town Clerk (19786889557) 13:4810109109GMT-04 Pg 16-37 This view of Section 8.9. 3 (GXv) is also the view of the Telecommunications Subcommittee members who drafted this section of the Zoning Bylaw below, and as evidenced u1 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 now 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 incore:t" The Building Commissioner misreads Sections 8.9.2 (q) (4) and 8.9 3 (eXv) and has improperly issued a building permit to MetroPCS based onthis misreading. 2 Argument (2) ready makes the same erroneous comtenuon as is found in Argument (I ), with the gloss that the Zoning Bylaw "requires" that a "pre-existing" struci (church steeple) be used for the mounting of new antennas and equipment. It is hue that the Zoning Bylaw expresses a preference of sorts C'if feasible') for the use of"preexisting structures" (Section 8.9 3(b)(1)] but only for "preexisting snrucnurm" that are located more than 600 ft from residences or schools. This lest portion of the Zoning Bylaw [see below], the Building Commissioner has chosen to omit tom his explanation of his decision. 3 Argument (3) relics on a portion of G.L. c. 40A, § I I 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 pennit. It is the Building Commissioner who claims that the Zoning Bylaw requires a special permit. That is not true. 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. Argument (4) is largely irrelevant to the current appeal which explicitly seeks only _.._ _... enforcement ofthe setback requirements of Salion g,9 3 (c) (v) of die 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 Commissioners 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 dismot 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 snuctures, whether attached to a new or existing m:Peter Morin To:Town Clerk (18786888557) 18:4910109109GMT-04 Pg 1797 sWtmre, as measured from the adjacent property line of properties which aro either zoned for, or contain, residential and or educational uses of any types. The MetroPCS(frinitarian Congregational Church facilities hen; will he within 600 B 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 Byte. as adopted by Town Meeting and approved by the Attorney General, aid not to gut it. S. Argument (5) 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 whetter TCA provisions aro applicable is a given ease. 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 lis 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: May28, 2009 1 I'm: Peter Morin To: Town Clerk(19786889557) 13:4810109109GMT-04 Pg 18-37 EXHIBIT Section 8.9.2 (ql (4) Mount. The struame 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 m 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) j Section &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. Iq addition, the fol:owiag setbacks shall be observed. (1) In order to manure 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 appornemances. This set back is considered the "fall zone". A minimum setback of 600 feet shall be required for aU 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 tum a preexistent structure is proposed as a mount for a wireless service fissility, 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. [emphasis added) 'w1amer Morin To:Town Clark (19786989557) 13:4810109109GMT-04 Pg 19-37 t Pn y bhn� ✓'"f aanCXU C BUILDING DEPARTMENT Community 0evelopmant Division May 19, 2009 Linati M. Fenressy 77 Elm Street North Andover, MA 01845 Re: Metro PCS Facility at Trinitarian Congregational Church on Elm Street Dear Ms, Fennessy: I am writing in response to yew 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 :o install a wireless facility in the steeple of the Trinitarian Congregational Church on Elm Street. Your request Por the denial of the building permit is denied for the following reasons: (1) Pursuam 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. you,, 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, con. December 3, 2008,1 wrote to the North Andover Planning Board and stated in part: "The aforementioned Section does not apply m 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)tv)(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 auucmrea, wireless service facilities and their equipment shelters shall not increase any non -conformity.' "Mi SeXt Wall at LMtad,aN bMn, kaubWb gals -- nMe911MLAn N. 91111a9W or, nw.lew.ImrN.IPNIre in: Peter Morin To:Town Clerk (18786888557) 13:48 10109109GMT-04 Pg 20-37 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 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 "preexisted 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 pan: "Location: Applicants seeking approval for wireless service facilities shall comply with the following: t) If feasible, wireless service facilities £IL be located on preexistent suucmres, including but not limited m 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 Bylaw rmuires ("shall oomply"), 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, 2009, the North Andover Planning Board approved a Wireless Special Permit for the subject facilities, with detailed Findings of Pact in their decision including: "12. Neighbors and other citizens in opposition to the project submitted documentation in support or their position. However, the Planning Board believes that the applicant has demonstrated compliance with the Town of North Andover Zoning Bylaw requirements for this applica ion" 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 litgation is cueenty pending 'm:Peter Morin To: Town Clerk (19786889557) 13:4910109109GMT-04 Pg 21-37 However, M.G.L. Chapter 40A, Section I I 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 peribrmed under the permit may be ordered undone." Therefore, the building permit as requested by Metro PCS will not be denied on the bass 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 (WE) limits, as indicated by the submittals and reports referenced at the end of this decision in Condition k16. The Telecommunications Act of 1996 prohibits this Board from taking health effects of RF transmissions into account beyond FCC requirements. 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 alternative 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, Sermon 11, the building permit will not be denied on the grounds you alleged. (5) The Federal Telecommunications Act of 1996 provides that exert governments may not "prohibit m have the effect of prohibiting the provision of personal wireless services" The Planning Board Pound that the Federal Act prohibited consideration of health effects beyond m. Peter Morin To: Town Clerk (19786889557) 13: 4810t09109GMT-04 Pg 22-37 FCC requiremems, that a significant gap in coverage existed, and that there we no altematire 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 probibit the provision of personal wireless services, in violation of the Federal Act, and I respactfully decline to violate that Act. For the foregoing reasons your request is denied. very Indy yours, Gerald A Be cc: Metro PCS Trinitarian Congregational Church Board of Selectmen planning Board Zoning Board of Appeals Mark Rees Curt Bellavence Judy Tymon m:Peter Morin To:Town Clerk (18786889557) 13:40 1 010910OGMT-04 Pg 23-37 May 15, 2009 77 Elm Street North Andover, MA 01845 Gerald Brown Zoning Enforcement Officer 1600 Osgnnd Street Building 20 Suire 2-36 North Andover, MA01945 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, Seaton 7 of the Massachusetts General Lows, I hereby request that you enforce the Town of North Andover Zoning Bylaw with regard to wireless facilites, Section 8.9 3) c) v) (1), which states: v) Setbacks All wireless service foci]ifies and their equipment shelters shall comply with the building setback provisions of the zoning district in which the facility is located. I addition, the following setbacks shalt be observed. 1) In In order to ensure public safety, the minimum distance frau the base of any ground -mounted wireless service facility to any pmpenv line, shall the 2a ow height of the facility/mount, including any antennas or other appurtenances. this set backis considered the "fall zone". A minimum setback of hfa) feet shall IV required for all wireless devices, amarine and their mounting souctures, whether attached to a new or existing structure, as measured from the adjacent property line of properties which me either zonal for, or contain, residential and or educational uses of any types. On March 3, 2609, the Town of North Andover Planning Board Issued a special permit for this proposed - ---- —installation, in violation ofSection 8.93)c)v)(1)-of the town's bylaw. In accordance with C'hapter4oA, - 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, anc the reasons therefor, within 14 days of your receipt of this request, as required by Chapter 40A, Section 7. Thank you fcr your prompt attention tc this matter, Sint Lizelta M. Fennessy C'. Zoning Board of Appeals, Attn: Chairman Alfred Maori It m loeter Morin To:Town Clerk (19786898557) 26January2o09 To the Planning Board: 13: 4B 10109109GMT-04 Pg 24-37 We, the undersigned are members of the Telecommunications Submmmlttes that was appointed in 2000 to study the use and placement of wireless devices within the Town of North Andover, and to modify the bylaw as appropriate based on the results of our study. Our Subcommittee was approved unanimously by the Board of Selectmen at the August 21, 2000 Board of Selectmen meeting. Our work culminated in the amendment of the Zoning Bylaw at the December 11, 200D Special Town Meeting. The provisions for setbacks In Semon 8.9 of the bylaw were amended at the meeting to read as follows: v) Setbmlo All wireless service facilities and their equipment shelters shall comply with the building setback provisions of the zoning district in which tt¢ facility is located. In addition, the following setbacks shall be observed. (1) In order to onsume public safety. the minimum distance from the base of my ground - mounted wireless service facility to my property line, shell be Zx the height of the facility/mount including my antro as or odroreppudonarwea. This ser back is considered the "&0 acne". A esinimma setback of 600 &et shall he requited for all wireless devices; gruses19 and their mounting announce, whether attached to a naw or existing structure, as measured from the adjacent property line of properties which are either wned for, or contain, residential and or educational uses of any types. (2) in the event that a preexistent snucpue is proposed as a motet for a wireless service facility, the setback provisions of the zoning district shall apply. In the case of the preeidstmtton-cool shuengos, wireless service facilities and their equipment shelters shall Am increase my non -conformity. This isthe current bylaw We understand that there has been some contusion aI ontthe meaning ofthe bybw was, regard to the installation of new antennas in existing buiidk%s. The undersigned wish totlarl" confusion, Asthe commutes, responsible for the amended setbacks above, we affirmatively state that Section BA 3) c) v) (2) Is wrmen solely for cases of wireless structures In existence at the time of this Waw In 2000, and that all new wireless structures, whether attached to a new or existing structure, shag have a minimum setback of 500 ft from residential or edueatlonally zoned properties per the requirements of Section 8.9 3) c) v) (1), Any Interpretation that Section 8.9 3) c) v) (21 applies to existing bu8dings; rather than proexisdng wireless structures, is simply incorrect. _ Sincerely, KegYhel6 �, Donald Stewart Lynn Arvikar Former Member, 80.5 Former Member, 805 3erni w G,,�tk.. Be"Ice FIiuK 47 LIF —® M a rin ® Clerk (1 m7) } ; $ } � : | \ \ \ ZI 13:49 10109109GMT-04 Pg 25-37 ƒ 'm: Peter Morin To: Town Clerk (19786889557) .w.xw�xxl r eYmeax r r�..�.o^ r r zaw I I 13:48 10109009GMT-04 Pg 26-37 MHE P TriAaxp Cwryp♦IeulLNmf li [M SYa1 NpaNgrv.MP IIN5 RlWa. P,ee.Yp Us, asset rveme elfOs �Wme, LLC ]]-A Meu]ne55w•1 1]+5 +1 ID IMV MQ+w r 5>£pWM 3M NOMFgcx.W 01015 41 51 Mrmw MT➢reeY gYWIVBMI Nan Mh+4W 01858 NeMtlIM➢M 'ar85pr naner.IM 31N5 ♦t ♦ Jdmevv/ 4Pgmlpvnue Narwn0, W. 01852 +1 10 RVxrlemNp II MurMuq 50wl NaP Mnq, NA DINS zffipA cNr RotlxM nmamspax Nan w.w.M 31Ns Effi1.0 CwSnv Pvm 61 ChrtA Ha+1 rbNi MNrve. W, 01N5 +1 A LmImo PYm N WNI vNNrt1 N., 4.] o1N: OIB+S /A Wank OBs w4 H.M.NIMeEMR i ]+S ppN Ctle 5]BmYN Rw3Al XwMlMp 01q] Mww ♦gpyg.0 WkFVW +9UWIS3m cM Nu4rx, NP 0111+5 Y0051A i MPnNM 51 LN.N 605e1 NOMNtlrvu. M501H3 D G♦9uJr PvvCY n W OINS 51 D loM1nblyouy Pp My+� Wg1m�R N401TB �i . xxga MwM .WwrsW.l NeMmepa. Mp Dl.s ]ysbbo Rwcn EI MvM1�W suam IbarMYnu. 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M1M 01N! +z o xapw WWa +B Ems3w Na1r MAwm,W DINS y♦q yewv 16 Fln SIrM XUM Mbxv.MA 01BU ♦e, Eqx ♦r, W OINS u T Brym prCr ♦E 0 04MYJMeN NMMrv. N401010 II GfrvBqu Nbi +SEM 53ex Naln Ndpv.IM 01N5 12 J+ Yq UrPwle Ip5a+6Yee1 NPB/xOau. M40iN3 BP ' 55 1 NMnILad» 10GM SaM Ns1i HgWx. M.+01.5 SS 8 iMon/SNM BSEIn 90Ml Nwn Mdnar. W OIN] 55 EgM1lfiSynw Realty II GYdnOq HmO IwM M1Nrvg M101.5 55 Mm+S{vwrry 11 Em Sloe Nwn O,tlwv. NA DINS 55 9 GNUN $mn♦ipx B]Fm9hetl NVPMMve. Mp o1%1 y e BrWm Mtiw WFINBBM Nan MMa.W 01N] 55 ]{ P�utlw Rel EWUComMM p11 W�m$OM MNM1um. Mp o1N♦ 55 Y bxMMev 3o ISPMN4nan XYpx.M1U 01N5 3 51 Bvy WMenm 0ee1 MP/uNpn,W 01N5 SI i HW MmSuiNV SYt', Nn'. PeORr IO W.WM 9rs1.5up IXY YderydB.IN+@. This certifies that the names appeasing on ft rewres p4f� t�h'eu' 'Assessors OfvW as of yGM�p.p J, aoo CemOad by:Date S 7u u ) 7/ 'm'. Peter Morin To: Town Clerk (18786889557) 13:4810109109GMT-04 Pg 27-37 EXHIBIT B M. Peter Morin To: Town Clerk (19766889557) Alben P. M.9111, Esq. Cbolmwa But. P. Wbm,re, t sa-Cw.i Rlchrrd J. Bye., Es?. CMa Joseph D. LGnve Rich. d M. Vail)—c-1 13:48 10109109GMT-04 P9211-37 n o i og Town of North Andover ZONING BOARD OF APPFAIS FINDINGS AND DECISION RE: Appeal ofLizetta M. Fe usessy 77 Elm Sheet, North Andover, MA Date: September 17, 2009 PROCEDURAL HISTORY RECEIVED TOWN CLERK'S OFFICE ZOO SEP 17 AN 11155 TOWN OF - NORTH gqNDOVER MASSA6{Mdsw6y, Taonuu D. 1pool m Daniel S. Broea, Erq. tdichael P. upme zecirgB or Ofjmr Gerald A. Brown 1. On or about May 28, 2009, Lixodat M. Feaca y (hereinafter, the Appellant), of 77 Elm Street, North Andover, appealed the decision of the Building Cmomissiouer to issue a building permit (11628) granted to MetroPCS Mmsachusetts, 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. eh. 40 § 7, 8, and 15 ss North Andover Zoning By -Law Section 8.9.3(cxv)(1)- 2. The Zoning Board of Appeals (ZBA) held a public hearing on the matter at a Special Meeting on June I8, 2009, and continued the hearing until August 11, 2009. The documents listed and identified herein within Appendix"A" are hereby incorporated by referents 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 natter at its meeting on Jun. 18, 2009, August 11, 2009, and September 1, 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 decisionof the planning Board of North Andover filed with the Town Clerk on Match 5, 2009, Mencl LLC and the Trinitarian Congregational Church obtained a special permit to erect a wireless communications facility in the steeple and basertrent of the Church located at 70 Elm Street North Page 1 of 3 'm:Peter Worm To:Town Clerk (19788889557) 13:48 10109109GMT-04 Pg 29-37 Andover par M.G.L. ch. 40 § 7, 8, and 15 as North Andover Zoning By -Law Section 8.9.3(c)(vxl) 7. The Appellom and others, appealed the Planning Board's decision in Fournier, e! al v. Simons, at at, C.A. No.: 2009-559-C (Essen Superior Court). 8. The Building Commissioner granted a building permit (0628) to MetmpCS, LLC and the Trinitarian Congregational Church on or about May 18, 2009. 9. The Appellant filed her appeal with the Z13A on May 28, 2009. She alleged that the Building Commissioner wrongfully issued building permit #628 because the proposed wireless communications facility is located within 600 feet of her residential premises, in violation of Section 8.9.3(exv)(1) of the Zoning By -Law. 10. The Appellant is s "patty in intareaV as defined by M.G.L. ch. 40A, § 11. The ZBA finds that Ms. Femessy is an aggrieved person for the purposes of this appeal. 11. The ZBA finds that the Building Commissioner properly issued the building permit The building permit was, in effect, authorized by the special permit granted by the Planning Board in Me"PCuS, LLC and the Trinitmim Congregeti0nel Church, filed with the Town Clerk on Much 5„ Bng Commissioner's decision to grant the building permit was therefore a ministerial step taken in reliance upon said special permit. RECORD OF VOTE The Board took the following actiom Upon a Motion made by Ms. Mcintyre, seconded by Mr. Braes% to support the Appeal of Ms. Fennessy and overturn the Building Inspectors findings as set forth within the filed petition, The following members of the Zoning Board of Appeals voted in SUPPORT the appeal of Ms. Fennessy: Albert P. Menai 111, Esq. and Ellen P. McIntyre The foliowing members of the Zoning Board of Appeals voted NOT TO SUPPORT the appeal of Ms. Fennessy: Richard M. VOMOMM Thomas D. Ippolito and Daniel S. Brew , Esq. - The Chainmen declared Ms. Flannel petition denied as it failed to obtain four votes insupport thereof as required. Chair Filed with the Town Clerk on September 17, 2009 Page 2 of 3 'm:Peter Morin Te:Tmn Clerk (18766886557) 13:48 10109/09GMT 04 Pg 30-37 APPENDIX A Exhibit #1 letter free, former Telecommunications Subcommittee (dated 1/26/09) Exbibii #2 Materials list submitted by Lizetta Fennessy (12 items) Exhibit #3 Letter from Walter Soule to John Simmalplarming Board (dated 1/23/09) Exhibit #4 Email from B Fink to Liz Fenrassy (dated L26/09) Exhibit #5 Letter from Attorney Joseph Fitzgibbons to Ms. Kenai Carroll (dated 1/15/08) Exhibit 116 Letter from Attorney Edward J. Collins to Ms. Thea Foumia(dated 126/09) Exhibit #7 Letter from D. Robert Nicetta to Rev. Andrew M. Gilman (dated 10/24/00) Exhibit 98 Letter (Page 1) from Janet R. Stearns to Mr. RobertNicetta (dated 7/27/01) Exhibit #9 Letter (Page 2) from Janet R. Steams to Mr. RobertNioetta (dated 727/01) Exhibit #10 Letter from Michael McGuire to Janet R. Steens (dated 8/1101) Exhibit #11 Letter from D. Robert Nicetta to Mr. Paul Gascoigne (dated 5/2510 2) Exhibit #12 Letter from Gerald Browato Gin Vilarrte (dated 4/12106) Exhibit #13 Letter from Gerald A. Brown to North Andover Planning Board (dated 12/3108) Exhibit 914 Affidavit ofLizeda M. Fennessy(dated 6/18/09) Exhibit#15a DVD of North Andover Annual Town Meeting night one Disc 1 (dated 5/120) Exhtblt #15b DVD of North Andover Annual Town Meeting night one Disc 2 (dated 5112/09) Exhibit #16 Letter from Lizette M. Fa messy to Gerald Brown (dated 5/15/09) Exhibit #17 Letter from Gerald Brown to Lizena M. Fennessy (dated 5119/09) Fxhibit #38 Peter Morin Letter dated June 10, 2009; including attachments Tab A tbru F Exhibit #19 North Andover Town Charter Exhibit 420 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 727/09) M.G.L. ch. 39, § 23D Participation Forms) Page 3 of 3 m:Peter Morin Tn:Town Clerk (18788888557) 13:48 10109I09GMT-04 Pg 31-37 EXHIBIT C M Peter Morin To: Town Clerk (19766889557) 13:4810109109GMT-04 Pg 32-37 TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS Prop" Owner & Location: Trinitarian Congregational Church 70 Elm Street North Andover, Massachusetts NATURE OFPROCEEDING: Appeal Som a Decision of the Building Inspector/Zoning Enforcement Officer that no variance is required for MetroPCS Maauxbraaetfr, LLC (MetmPCS) or Trinitarian Congregational Church to install and openste wireless communication facilities on a residentially tuned property with less than the 600' setback between such facilities and residences, including petitioner's residence, and schools, as specified in Section 8.9.3(c)(v) of the North Andover Zoning Bylaw and from the issuance of a building permit for the construction of such facilities in the absence of a variance from tho North Andover Zoning Board of Appeals from the requirements of said Section 8.9.3(e)(v).. NOTICE OF CONSTRUCTIVE APPROVAL OF PETITIONER'S APPEAL AND GRANT OF THE RELIEF REQUESTED THEREIN The North Andover Building Commissioner granted a building permit (4628) to MetroPCS and the Trinitarian Congregational Church on May 18, 2009. The petitioner, Liietta M. Panel 77 Elm Street, North Andover, modem appeal with the Zoning Board of Appeals on May 28, 2009, She claimed, inter alfa, the Decision of the North Andover Building hrspactor/Zoning Enforcement Officer, Gerold A. Brovm, that the 600' setback requirement of Section 8.9.3(e)(v) of the Zoning Bylaw did net apply to the MehnsPCS T interim Congregational Church application for a building permit and that accordingly no variance from _ that requirtaneot by the Zoning Board of Appeals was required before he could lawfully issue a building permit She also claimed that the Building hapector/Zoning Faf ncement Officer wrongfully issued building permit (#628) to MetroPCS and Trinitarian Congregational Church in violation of Section 8-9.3(c)(v) of the North Andover Zoning By -Law. Massachusetts General Laws, chapter 40A, section fifteen, pmvidcs that "[t]he decision of the board [of appeals] shall be made within one hundred days atter the date of the filing of an appeal, application or petition ... "and that "fallum by the board to act within said one hundred days ... shall be deemed its be the grant of the appeal, application or petition" Section fifteen also refers to "approval [of petitioner'sappeal] by reason of the failure of the board to act within the time proscribed." The North Andover Zoning Board of Appeals failed to act on petitioner's appeal within the time limit provided by G.L. c. 40A, § 15. It filed no notice of any Decision with the North Town of North Andover ZONING BOARD OF APPEALS Albert P. Maw III, Esq. Ch imam Ellen P. Mctntym, Vin-Cbai moa MOXTN Richard J. Bye., Esq. Ckk D. InGreese G4 ,� +: •, Joseph M. Vill.n Oo o^yA...ah Members'Phomas (Richard D. Ippahto ^e F iaORT Darrel S. B..,EN. L�'"++..o..`".�. 19A S9Irl. Michael P. Liporto '=u,rusE� rows OCh Tipik amp 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 Tuesday the 18`s 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 #628 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, Legalnotice 2009-009. M42P2. 1600 Osgood St., Bldg 20. Suite 2-36, NoM Andover, MA 01845 Pbone-9]8.688-9541 I.-978.688-9542 Web -ww tow ofnoMandover.wm Town of North Andover ZONING BOARD OF APPEALS RECEIVED Albers P. Manzi III, Esq. Chm'ma, TOWN CLERK'S OFFICE F&n P. McIntyre, Vi'mChd ax Richa,d J. By., Esq. CAA o4„Mo er„ , Joseph D. L.Gsasse : ,,.,_ . ,� : �, 1009 JUN -2 AM 9: 38 Richard M. Vadl.,c i A,.de Mwhm �� TOWN OF Thomas D. Ipphm ;"s; a; NORTH ANDOVER bf.h.dP Lpw. q ;� B�eH,pbzr MASSACHUSETTS S" rm„, a«k 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 18' 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 #628 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 R4 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 4:3OPM. 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 SI., Bldg 20 - Suih 2-36, No Andover, MA 01845 Pbone - 97"9.9541 Fax-97M88A542 Web -w .Ww ofhonhandovenwm FINDING TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS kt&Mr. LIZe-ffo, M. Pet Procedure & Requirements for an Application for a Finding Ten (10) copies of the following information must be submitted thirty U days prior to the first public hearing. Failure to submit the required information within the time periods prescribed may result In a dismissal by the Zonino Board of an applicwtilun as incom fete. The information herein is an abstract of more spec requirements listed in the Zoning Board Rules and Regulations and is not meant to supersede them. The petitioner will complete hems that are underlined STEP is ADMINISTRATOR PERMIT DENIAL: The petitioner applies for a Building Permit and receivers a Zoning Bylaw Denial forth completed by the Building Commissioner. STEP 2• FINDING APPLICATION FORM: Petitioner completes an application forth to petition the Board of Appeals for a Finding. All information as required in hems 1 through and including 11 shall be completed. STEP 3: PLAN PREPARATION: Petitionersubmhs all of the required plan information as cited in seqtion 10, page 4 of this forth. STEP 4. OBTAIN LIST OF PARTIES IN INTEREST: The petitioner requests the Assessor's Office to compile a Certified list of Parties in Interest (abutters). a wwwia,, 0 'Y 23 . '1: Town Clerk rare Stamp STEP 6: SCHEDULING OF HEARING AND PREPARATION OF LEGAL NOTICE: The Office of the Zoning Board of Appeals schedules the applicant for a hearing date and prepares the legal notice for mailing to the parties in interest (abutters) and for publication in the newspaper. The petitioner is notified that the legal notice has been prepared and the cost of the Party in Interest fee. STEP 7: DELIVERY OF LEGAL NOTICE TO NEWSPAPER The petitioner picks up the legal notice from the Office of the Zoning Board of Appeals and delivers the legal notice to the local newspaper publication. STEP 8: PUBLIC HEARING BEFORE THE ZONING BOARD OF APPEALS: The petitioner should appear in hisrher behalf, or be represented by an agent or attorney. In the absence of any appearance without due Cause on behalf of the petitioner, the Board shall decide on the matter by using the information it has otherwise received. STEP 9: DECISION: After the hearing, a copy of -the Board's decision will be sent to all Parties in Interest. Any appeal of the Board's decision may be made pursuant to Massachusetts General Law ch. 40A § 17, within twenty (20) days after the decision is filed with the Town Clerk. STEPS, SUBMIT APPLICATION: STEP 10: RECORDING THE DECISION AND PLANS. Petitioner submits one (1) original and ten (10) Xerox The petitioner is responsible for recording certification of copes of all the required information to the Town Clerk's the decision and any accompanying plans at the Essex Office to be certified by the Town Clerk with the time County, North Registry of Deeds, 384 Common St., and date of filing. The original will be left at the Town Suite #304, Lawrence MA, 01843 and shall compete the Clerk's Office, and the 10 Xerox copies will be left with Certification of Recording form and forward it to the the Zoning Board of Appeals secretary. Zoning Board of Appeals and to the Building Department. ay�r IHNINIIIIIPaletlalNWY1111e111I1eaanaNanamallNlpW0aI1111fW11aM1a9aabaitliQIN11NXme1NHIY IMPORTANT PHONE NUMBERS: 978888-9533 Office of Community Dev. & Services North Andover Town Hall 1600 Osgood St., Bldg. 20, Suite 2-36 120 Main Street North Andover, MA 01845 97888&9501 Town Clerk's Office 976808-9542 fax for Community Development offices 97888&9586 Assessor's Office 978888-9545 Building Department 97888&9541 Zoning Board of Appeals Office PAGE 1 of 4 PAGE 2 OF 4 NORTH ANDOVER ZONING BOARD OF APPEALS application for a FINDING Please ram late all items 1 —11 below: 1. Petitioner: *Name, *Address and telephone number: '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 lnifara,u r6M(4rerutlmc�0 (;h Owned Land: 3. Location of Property: a. Street: ?0 Lrh S+rem Zoning District: R 1-1, b. Assessors: Map number: Lt 2 Lot Number. a c. Registry of Deeds: Book Number: 107to Page Number: a97 4. Zoning Bylaw Section(s)* under which the petition for the Finding is made. �c c 71 6_"5'? 3 (C)N) 'Refer to the Zoning Bylaw Denial and Plan Review Narrative form as supplied by the Inspector of Buildings. 5. Describe the Finding request: The above dmcriptlon shall be used for the purpose of the legal notice and decision. A more detailed desviptlon is required pursuant to the Zoning Board Rules and Regulations as cited on page 4, section 0 of this applicaUmt. Failure by the applicant to descrlbe the request clearly may result In a decision that does not address the intent of tbe applicant The decision will be limited to the request by the appllcaM and will not involve additional hems not Included above. 6A. 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 Sq. Ft. Sq. Ft. A tOA NA B.— — Percentage Lot Frontage Parking Coverage Feet Spaces AJA lv/ (Df- se (-ba /x s no% rite E Front,^, qq Side A���� qq Side B Rear '7 2 i 6_ 00 Page 3 of 4 NORTH ANDOVER ZONING BOARD OF APPEALS 6 B. Existing Lot: Lot Ares Open Space .Percent Lot Fmntage Parking Sq. Ft Sq. FL Coverage Feet Spaces NA - — 6 C. Proposed Lot(s): Front Side A Lot Area Open Space Sq. Ft Sq. Ft. Percent Lot Coverage Frontage Feet Parking Spaces Ca i PDO rJ A Minimum Lot Setback — 6 D. Required Lot: (As required by Zoning Bylaw & Table 2) LotArea Open Space Sq. Ft Sq. FL Percent Lot Coverage Frontage Feet Parking Spaces NA—� 7A. Existing Building(s): Ground Floor Number of Height Tote) Square feet Floors Sq. feet N A ---- fora FINDING Use of Number Building' of Units- GhX1t^c-ln •Reference Uses kom the Zoning Bylaw & Table 1. "State number of units in building(s). 7B. Proposed Building(s): Ground Floor Number of Height Square feet Floors Total Use of Sq. feet Building' rk)ran W Lot reUs5 ae. VI (.e Fa -Reference Uses from the Zoning Bylaw & Table 1. "Sone number of units in building(s). Number of Units - 8. Petitioner and Landowner signature(s): - Every application for a Finding shall be made on this 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 this application 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 Zopiqg Board of this application as incomplete. c16 I Type above narre(s) here7 bizct%a m �-yi K5st./ Minimum Lot Setback* &f 5i�¢. tc. Front Side A Side B Rear 73 Set Ca i PDO d Qp,�poliltless wfACt.Q g1�'Fu Minimum Lot Setback in 54�,pt-C Front Side A Side B Rear 13 6P 9 (09 )00 .y or wi rck5s Servlc Minimum Lot Selbedcig Front Side A Side B Rear fr,r• .13(c,)(v: (900 (do0 (dam tp00 Use of Number Building' of Units- GhX1t^c-ln •Reference Uses kom the Zoning Bylaw & Table 1. "State number of units in building(s). 7B. Proposed Building(s): Ground Floor Number of Height Square feet Floors Total Use of Sq. feet Building' rk)ran W Lot reUs5 ae. VI (.e Fa -Reference Uses from the Zoning Bylaw & Table 1. "Sone number of units in building(s). Number of Units - 8. Petitioner and Landowner signature(s): - Every application for a Finding shall be made on this 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 this application 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 Zopiqg Board of this application as incomplete. c16 I Type above narre(s) here7 bizct%a m �-yi K5st./ PAGE 4of4 9. WRITTEN DOCUMENTATION Application for a Finding must be supported by a legibly written or typed memorandum setting forth in detail all facts relied upon. All dimensional requirements shall be clearly identified and factually supported when requesting a Finding from the requirements of MGLA ch. 40A, and the North Andover Zoning Bylaws. All points, A -C, are required to be addressed with this application. A. The particular use proposed for the land or structure. B. Fact(s) relied upon to support a Finding that the proposed extension or alteration shall not be more substantially detrimental than the existing non- conforming use. C. Address all appropriate details of the Building Commissioners denial. 10. PLAN OF LAND Each application to the Zoning Board of Appeals shall be accompanied by the following described plants). Plans must be submitted with this application to the Town Clerk's Office and ZBA secretary at least thirty (30) days prior to the public hearing before the Zoning Board of appeals. A set of building elevation plans by a Registered Architect may be required when the application involves new constructioniconversion/ and/or a proposed change in use. 10. A. Major Projects Major projects are those which involve one of the following whether existing or proposed: Q five (5) or more parking spaces, IQ three (3) or more dwelling units, "2,000 square feet of building area. Major Projects shall require, in addition to the 10B. & 10 C. features, that the plans show detailed utilities, soils, and topographic information. •10. B. `Plan Specifications: I) size of plan: Ten (10 ) paper copies of a plan not to exceed 11"x17", preferred scale of 1"=40'. m One (1) Mylar, with one block for Registry Use Only, and one block for five (5) ZBA signatures and date.. IM Plan shall be prepared, stamped and certified by a Registered Professional Land Surveyor. Please note that plans by a Registered Professional FINDING Engineer, Registered Architect, and/or a Registered Landscape Architect may be required for Major Projects. `10. C. 'Required Features On Plan: I) Site Orientation shall include: 1. north point 2. zoning district(s) 3. names of streets 4. wetlands (if applicable) 5. abutters of property, within 300' radius 6. locations of buildings on adjacent properties within 50' from applicants proposed structure 7. deed restrictions, easements. 11) Legend & Graphic Aids shall Include: 1. Proposed features in solid lines & outlined in red 2. Existing features to be removed in dashed lines 3. Graphic Scales 4. Date of Plan 5. Title of Plan 6. Names addresses and phone numbers of the applicant, owner of record, and land surveyor. 7. Locus. 10, 0. Minor Projects Minor projects, such as decks, sheds, and garages, shall require only the plan information as indicated with an asterisk (`). In some cases further information may be required 11. APPLICATION FILING FEES 11.A. Notification fees: Applicant shall provide a check or money order to: "Town of North Andover " for the cost of first class, certified, return receipt x # of all parties in interest identified in MGLA ch. 40A §11 on the abutter's list for the legal notice postage check. Also, the applicant shall supply first class postage stamps x the # of parties of interest on the abutter's list for the decision mailing. 11.B. Mailing labels: Applicant shall provide four (4) sets of mailing labels no larger than 1"x2-5/8' (3 copies for the Legal mailing and one copy for the Decision mailing). 11.C. Applicant shall provide a check or money order to: ?own of North Andover" per 2005 Revised Fee Schedule. FENNESSY REQUEST FOR FINDING ITEM 9 Locus: Trinitarian Congregational Church 70 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, § 11), 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. His 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 8.9 3 (c)(v)(2) does not apply to buildings or parts thereof [see Section 8.9.2 (q)(4)]. By its own terms, Section &U (c)(v)(2) deals exclusively with structure -mounted wireless service facilities. Structure -mounted is defined so m 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 (c)(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, to 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 true. That incorrect decision by the Building Commissioner is precisely one of his errors in interpreting the Zoning Bylaw that 1 son quite properly contesting in this appeal. 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 he 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. 5. Argument (5) 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 MetmPCS 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 (a) (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 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 thew equipment shelters shall not increase any non-confortnity. [emphasis added] O< HOFiF ,� k � <i Y Y a .A]L.. i Y �S`SFCHU504 BUILDING DEPARTMENT Community Development Division May 19, 2009 Lizetta M. Femessy 77 Elm Street North Andover, MA 01845 Re: Metro PCS Facility at Trinitarian Congregational Church on Elm 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 Elm 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 antemas 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 rase of the preexistent non -conforming structures, wireless service facilities and their equipment shelters shall not increase any non -conformity.' Id600s6e96 SWxe, lu6lq tSuXu ba,Ma4M lMmer, MesseArsens 0166 PM1one 916.606.9616 Fax 9/6.666.9512 Web nw.toxnoinorlMn/overman 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(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(cxvx2), 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 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." (emphasis supplied) Therefore, it is clear that the Bylaw r%q sua ("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, 2009, 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. However, the Planning 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 Sling 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 1I 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 (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. 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 alternative 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 FCC 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 traly yours, Gerald A. Bro cc: Metro PCS Trinitarian Congregational Church Board of Selectmen Planning Board Zoning Board of Appeals Mark Rees Curt Bellavance Judy Tymon May 15, 2009 77 Elm Street North Andover, MA 01845 Gerald Brown Zoning Enforcement Officer 1600 Osgood Street Building 20 Suite 2-36 North Andover, MA 01845 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. (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. On March 3, 2009, the Town of North Andover Planning Board issued a special permit for this proposed installation, in violation of Section 8.9 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. Sine ' Lizetta M. Fennessy C: Zoning Board of Appeals; Attn: Chairman Alfred Manzi III 26 January 2009 To the Planning Board: We, the undersigned, are members of the Telecommunications Subcommittee that was appointed in 2000 to study the use and placement of wireless devices within the Town of North Andover, and to modify the bylaw as appropriate based on the results of our study. Our Subcommittee was approved unanimously by the Board of Selectmen at the August 21, 2000 Board of Selectmen meeting. Our work culminated in the amendment of the Zoning Bylaw at the December 11, 2000 Special Town Meeting. The provisions for setbacks in Section 8.9 of the bylaw were amended at the meeting to read 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 "fell 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. (1) 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. This is the current bylaw. We understand that there has been some confusion about the meaning of the bylaw wkfi regard to the installation of new antennas in existing buildings. The undersigned wish to clarify the confusion. 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 It 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. Sincerely, Keith Mitchel6 Esq. Donald Stewart Lynn Arvlkar Former Member, BBO-S Former Member, SOS 8 E2NtCE FPAK/6-7L-rw 0 § { | ) \ / / } m \ \ \ 7 fi {\�\ 0 2««_ LD §�(r ))\/ -�2 o 0 |'M0 ƒ.2 0 ƒi0(% k)}0m ; burro Mull( 1 BUVigem ( I ! 1 ]�^W ! 1 [re'a vpN'le ✓uw d This certifies that the names appearing on the records Q4�f the Assessors Office as of .kizSuK 3. .3eO Certified by: (`Dote $ Ta of ua+.nw+a nwa.re�r..um. f m..ea, •uu � uawnwhnewsm�uM�..n.u.erwuw iaMaauw uuquia�uuue aa�4syeaµ,ue reuw4�u� wn Ma ra a�rmyysua. fueM1efPimM- AI6E 42 P41tl [I 2 P(oa2M TM1NeM Cm0lglaAwel CM1urti 73 E. 50eNfl� NOM A.rbrv, MP 01&5 Alm PS.�! L RMNV 41 8 Bleml Mwmny Fw" HM, LLC �37 M.M S., Mb pnOai¢r, MA 01645 41 10 p MS 57 -%We S. Nb Ahd.,, MP 01045 41 11 H MWM WWeIr5 Na MEmer. 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Thank you. 1 TO: 46e 1�e Q&,,� FAX # 2t9 FE8 '-,6 FROM: Mary, Planning Assistant FAX #978-688-9542- PHONE #978-688-9535 Please sign your name and fill in address of premises affected, fill in current date, return same to fax #978-688-9542. Thank you. "REQUEST FOR A CONTINUANCE NAME:�t���t_,r ADDRESS OF PREMISES PHONE NUMBER: AREA CODE:_) "I WISH TO REQUEST A CONTINUANCE UNTIL TILT SCHEDULED PLANNING BOARD MEETING, THEREFORE WAIVE THE TIME CONSTRAINTS FOR ISSUING OF ANY AND/ALL DECISIONS RELATIVE TO ANY/AND ALL PERMITS OF THE PLANNING BOARD FOR THE TOWN OF NORTH ANDOVER, MA. SIGNED BY u�m�wc DATE:,/ a -D. -6q fill in current date TIVE: Jan 14 09 06:06p Bill McQuade 2D7 363 3697 p.i ]an 14 09 04,27P NORTH ANDOVER 9786889542 P-1 i FAX # TO: t "—dam 3(- FROM: c FROM: Mary, Planning Assistant ago 7 34 FAX #978-688-9542 - PHONE #978-688-9535 Please sign your name and fill in address of premises affected' fill in current date, return some to fax #978-688-9542. Thank you - MT anD a CONTINUANCE„ NAME ADDRESS OF PREMISES AFFIB Cru: Av l; e,-m,T ^-5 AREA CODE -C —) rb- a "I WISH TO REQUEST A CONTINUANCE UNTIL T7T SCHEDULED PLANNING BOARD MEETING, THEREFORE WAIVE THE TIME CONSTRAINTS FOR ISSUING OF ANY AND/ALL DECISIONS RELATIVE TO ANYJAND ALL PERMITS OF THE PLANNING BOARD FOR THE TOWN OF NORTH ANDOVER, MA. % ENTTIE: GDEO V DATE: 11111 in current date r.4.carta4.TAWE Jan, 5. 2009 11:30AM Metro PCS Boston No. 2813 P. 2 TO: FAX# dol- r FROM: May, Planning Assistant 19zo Z�09✓AN,S FAX #978.688-9542 - PHONE #978-688-9535 Please sign your name and fill in address of premises affected, fill in current date, return same to fax #978-688-9542. Thank you. "REQUEST FOR A CONTINUANCE' ADDRESS OF PREMISES AFFECTED: ,/ 70 91m .rfiYi ,e 7' PHONE NUMBER: AREA CODE: f �Avu.t<ry dr, Soot'y "I WISH TO REQUEST A CONTINUANCE UNTIL THE NEXT SCHEDULED PLANNING BOARD MEETING, THEREFORE WAIVE THE TIME CONSTRAINTS FOR ISSUING OF ANY AND/ALL DECISIONS RELATIVE TO ANY/AND ALL PERMITS OF THE PLANNING BOARD FOR THE TOWN OF NORTH ANDOVER, MA. DA current date WtONTMURp E17ea R� y>g-ayv- �a8"7 —Pr"S—'g' wavier Ippolito, Mary From: Peter Morin [pmorin@mqmllp.com] Sent: Monday, January 05, 2009 11:45 AM Page 1 of 2 To: Ippolito, Mary r —+ o Cc: Bill McQuade Subject: RE: sign wavier Mary, Cori It It seems that both Bill and I are out of our offices, with no access to a printer m sign and return your waiVeJ. r T CD I will not be back until tomorrow at the end of the work day. If it will suffice for your purposes, by this email I acknowledge the content of the waiver and on behalf of my client, Metro PCS, I submit this email as an "electronic signature" to the waiver. Peter Morin McDermott Quilty & Miller LLP ----Original Message ----- From: Bill McQuade [mailm:wmcauade(alearthlink.ngt] Sent: Sat 1/3/2009 5:48 AM To: Peter Morin Subject: FW: sign wavier From: Ippolito, Mary [ma Im,mippolit(almwnofnorthwdover.coml Seat: Wednesday, December 31, 2008 10:19 AM To: wmcquade@eartidink.net Cc: Tymon, Judy Subject: FW: sign wavier Hi Bill, Please fill out the attachment and return it to my attention. I f"'d it yesterday but havn't heard from you. Best personal regards, Mary Ippolito, Planning Department Osgood Landing Town of North Andover 1600 Osgood Street Bldg. 20, - Suite 2-36, Planning Department North Andover, MA 01845 P 978-688-9535 F 978-688-9542 mippolim@mwnofnorthandovef.com 1/5/2009 Please time stamp both copies and return one copy to Mary Ippolito. TO: 4 as Di0✓ FAX # —Thank you. FROM: Mary, Planning Assistant FAX #978-688-9542 - PHONE #978-688-9535 Please sign your name and fill in address of premises affegted,1 in current date, return same to fax #978-688-9542. Thankyou. a "REQUEST FOR A CONTINUANCE" r' `�D NAME:_ ADDRESS OF PREMISES AFFECTED:� PHONE NUMBER: AREA CODE: ( 3;'0%" "I WISH TO REQUEST A CONTINUANCE UNTIL THE 1' SCHEDULED PLANNING BOARD MEETING, THEREFORE WAIVE THE TIME CONSTRAINT'S FOR ISSUING OF ANY AND/ALL DECISIONS RELATIVE TO ANY/AND ALL PERMITS OF THE PLANNING BOARD FOR THE TOWN OF NORTH ANDOVER, MA. 7Of�•r�St. _�EiVEO F �L Town of North Andover Planning Board Application for Special Permit rl�•ss, c"' Please type or print clearly I. Petitioner: Bill McQuade Agent for MetmPCS Massachusetts Address: 17 Indian Trail York, ME 03909 _ Telephone Number: 207-363-0006 2. Owners of the Land: Trinitarian Congregational Church of North Andover k$63VO-6 Address: 70 Elm Street North Andover. MA Telephone Number: 978-685-3765 Number of years ownership: If applicant isnot the owner, please state interest in property: Lease for a Wireless Service Facility 3. Request for a Special Permit under Section 8_9 of the North Andover Zoning Bylaw to install 6 panel antennas at a centerline of 80' in the existing church steeple and related BTS Cabinet 4. Location of Property: 70 Elm Street Zoning District: R-4 Assessors: Map: 42 Lot # 2_ Registry of Deeds: Book #: 1076 Page # 297 5. Existing Lot: Lot Area (Sq. Ft): 45 600 Street Frontage: 172' Front Setback: 73' Floor Area Ration: 6. Proposed Lot (if applicable): Lot Area (Sq.Ft): N/A Street Frontage: Front Setback: Floor Area Ratio: Building Height: 150' Side Setbacks: 69' Rear Setback: 200' Lot Coverage: Building Height: Side Setback: Rear Setback: Lot Coverage: 7. Required Lot (as required by Zoning Bylaw); Lot Area (Sq.Ft.): 12,500 Building Height: Street Frontage: 100' Side Setback: 15' Front Setback: 30' Rear Setback: 30' Floor Area Ratio: Lot Coverage: 8. Existing Building (if applicable): Ground Floor (Sq.FL). H/A Total Sq. Ft; Use: # of Floors Height: Tvoe ofConstruction: 9. Proposed Building: Ground Floor (Sq.Ft.) no chance # of Floors Total Sq. Ft.; Height: Use: Type of Construction: 10. Has there been a previous application for a Special Permit from the Planning Board on these premises? No . If so, when and for what type of construction? -- 11. Petitioner and Landowner signature(s): Every application for a Special Permit shall be made on this form which is the official form of the Planning Board. 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 this application received by the Town Clerk or Planning Office does not absolve the applicant from this responsibility. The petitioner shall be responsible for all expenses fm filing and legal notification. Failure to comply with application requirements, as cited herein and in the Planning Board Rules and Regulations may result in a dismissal by the Planning Bp*,4this ap�pjicatio;r as incomplete. Petitioners Signature: Print or type name here: Bill McQuade aaent for MetroPCS Massachusetts Owners Signature: Print or type name here: See letter of authorization New England Wireless Solutions, Ilc October 27, 2008 North Andover Planning Board Town of North Andover 1600 Osgood Street North Andover, Massachusetts 01845 Re: Application for a Special Permit for a Wireless Services Facility at the existing church steeple located at 70 Elm Street, North Andover, MA (Town of North Andover Map 42 Lot 2) Property Address: 70 Elm Street North Andover, MA (the "Property") Applicant: MetmPCS Massachusetts, LLC ("MehoPCS") BOS0380_C Dear Chairman and Members of the Board: As agent for and on behalf of MetroPCS Massachusetts, LLC ("MetroPCS") the "Applicant" we respectfully submit the enclosed Application for a Special Permit for a Telecommunications or Wireless Services Facility from the North Andover Planning Board (the. "Board'). Pursuant to Zoning By -Law Section 2.65 Special Permit Granting Authority: 8.9 Wireless Service Facilities or other similar communications use of the Town of North Andover Zoning Ordinance (the "Zoning Ordinance'l, the Board is vested with the authority to grant the requested Special Permit and site plan approval. The Applicant seeks to co -locate and operate its Wireless Facility in an existing church steeple that is owned by Trinitarian Congregational Church of North Andover. MetroPCS's antennas are proposed to be located at a centerline height of 80 feet in the existing church steeple. MetroPCS has entered into a lease agreement for antennas and equipment space with the building owner, Trinitarian Congregational Church. The Wireless Facility is shown on the plans submitted herewith and incorporated herein by reference (the "Plans"). In addition to the request for all necessary zoning approvals, MetroPCS offers the following supporting information. A. Backeround MetmPCS is licensed by the Federal Communications Commission to construct and operate a wireless telecommunications network in various markets throughout the country, including the State of Massachusetts and, in particular, in the Town of North Andover. MetroPCS is in the process of designing and constructing a telecommunications system to serve all of the State of Massachusetts. One of the key design objectives of MetroPCS's system is to 17 Indian Trail York, ME 03909 (207) 363-0006 wnnoquade@earthlink. net Chairman North Andover Planning Board October 27, 2008 Page 2 provide seamless coverage without gaps or dead spots. Such a system requires a grid of radio transmitting and receiving links located approximately 1.5 to 2.5 miles apart, depending on the location of existing and proposed installations in the surrounding area as well as the existing topography. The radio transmitting and receiving facilities operate on a line -of -sight basis, requiring a elm path from the facility to the user on the ground. This dynamic requires the antennas to be located above the tree -line, and in a location where the signal is not obstructed or degraded by other buildings or by topographical features such as hills. B. The Facility As shown on the Plans, the wireless facility equipment will be placed in the existing church within a 7'x13' lease area. MetroPCS will have six (6) panel antennae mounted in the church steeple at a centerline of 80 feet. The antennas will be connected via co -axial cable to three (3) equipment cabinets located in the basement of the building. After MetroPCS's installation, the facility will be unmanned and will only require twice a month maintenance visits. The only utilities required to operate this facility are standard 120 -volt electrical power as well as telephone service. These are presently in place within the existing building. The traffic generated by the facility will be about two vehicle trips per month by maintenance personnel who will inspect the facility to ensure it remains in good working order. The facility will comply with all applicable local, state and federal safety codes. C. Compliance with the Zoning Ordinance and Site Plan Review Reealations As set forth above, the Applicant believes that it satisfies the requirements set forth in the Zoning Ordinance, and that the proposed site meets all of the objectives of the Special Permit criteria for a Telecommunications or Wireless Services Facility to the extent applicable, of the Town of North Andover's Site Plan Review Regulations. The Applicant hopes that the Board agrees that the Property is a sensible location for a co -location of MetroPCS's personal wireless services facility and satisfies the Town of North Andover's goal of rational siting of such facilities, as well as the Zoning Ordinance's requirements for such facilities. D. Conclusion MetroPCS is one of a limited number companies licensed by the FCC to provide service to the residents and businesses of North Andover. As a licensee of the FCC, MetroPCS is mandated to build out and operate its systems such that adequate wireless service is provided to the general public. Based upon the radio frequency studies and computer models, MetroPCS has determined that the proposed co -location in the existing church steeple at 70 Elm Street is Chairman North Andover Planting Board October 27, 2008 Page 3 needed to provide wireless technology to the Town of North Andover. Accordingly, MetroPCS respectfully requests that the requested Special Permit be granted pursuant to the submitted application. Due to the importance of this proposed facility and the construction time line, MetmpCS respectfully requests that the zoning approval process be completed as soon as possible and as required by the Ordinance. Please feel free to contact me regarding any questions concerning the application at 207- 837-0127. V BMcQuade New England Wireless Solutions Agent for MetmPCS BOS0380 C Attachments Application for Special Permit with Fees Request for Waivers — Site Plan Review and Site & Design Filing Requirements Radio Frequency Coverage Plots RF Affidavit FCC License Letter of Authorization Certified Abutters List Photo Simulations Structural Analysis Plans REQUEST FOR WAIVER of SITE PLAN REVIEW The Applicant, MetroPCS Massachusetts, respectfully requests a waiver from the requirements of the Town of North Andover's site plan review regulations: 8.3. (2) (C) (i) (ii) Waiver of Site Plan Review The proposed MetroPCS facility will be unmanned and will not require water or sewer. No noise, smoke, fumes or other nuisances are produced by the facility. There will be no pedestrian traffic generated by the facility. The only vehicular traffic will be one or two trips per month per carrier by a technician in a SUV or similar vehicle. For all these reasons, the Applicant respectfully submits that the use is a very passive use, and does not create any detriment to the public safety, health or welfare. In addition, there will no injury to other individuals or property. The Applicants believe that the impact of the proposed facility will be very slight, and in fact, from most areas of the Town, non- existent. Accordingly, granting this waiver will be in the public interest. There are no subdivision plans, additional sites or buildings on the property at issue, and therefore the applicants requests a waiver from this provision as it is not applicable. REQUEST FOR WAIVER of SITE & DESIGN FILING REQUIREMENTS The Applicant, MetroPCS Massachusetts, respectfully requests a waiver from the requirements of the Town of North Andover's site plan review regulations: 8.9 (5) (d) (iii) (9) Waiver of Site Filing Requirements — Contours at each 2 feet AMSL for the subject property and adjacent properties within 300 feet. 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. 8.9 (5) (d) (iv) (13) Waiver of Design Filing Requirements — Landscape plan including preexistent trees and shrubs and those proposed to be added, identified by size of specimen at installation and species. The proposed MetroPCS church steeple facility will be an .unmanned collocation on an existing building. The Applicants believe that the impact of the proposed facility will be very slight, and in fact, from most areas of the Town, non-existent. Accordingly, granting this waiver will be in the public interest. There are no subdivision plans, additional sites or buildings on the property at issue, and therefore the applicants requests a waiver from these provisions as it is not applicable. 1 i � c C d c6 U V/ G 7 f6 m dr :1 mo c / ki El N metro Unlimit Yourself" STATEMENT OF Frantz Pierre, RADIO FREQUENCY ENGINEER I, Frantz Pierre, state as follows I have a degree in Electdcal Engineering from Miami Dade College and an IT degree from American Intercontinental University and have worked as a Radio Frequency Engineer for the past 11 years. I am a Senior Radio Frequency Engineer for the New England Region of metroPCS, with an office at 285 Billerica Road, Chelmsford, Massachusetts. I am responsible for the metroPCS network design in North Andover. I write this Statement based upon my personal knowledge and in support of the accompanying application. metroPCS is an FCC licensed provider of wireless communications services throughout New England including North Andover, MA. In order to meet its obligations under the Code of Federal Regulations 47 C.F.R. 6 27.14(al , metroPCS must have in place a network of "cell sites" to serve mobile telephones or portable wireless devices throughout its license areas which includes the City of North Andover. As shown in the attached application, a typical "cell site" consist of equipment cabinets installed on the ground, roof, or in a room connected to antennas mounted on a tall structure such as a tower, a building or other structures. The antennas are connected to the equipment cabinet via thick coaxial cables, and the equipment cabinet is then connected to regular telephone lines from which calls will be routed to their intended destinations. 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. I have reviewed the accompanying application for the proposed installation of a wireless communications facility at 70 Elm St. 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. An evaluation of the proposed location has indicated that an antenna height of eighty feet (80) 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. The antenna of the proposed facility would consist of a total of 6 antennas. In my opinion, the proposed location is well suited to meet metroPCS' network requirements in the area due to its location and topographic characteristics. The absence of a wireless communications facility at or near this location would adversely impact metroPCS' ability to provide the FCC mandated quality wireless communications services in the area. The metroPCS installation will not interfere with public safety communications, commercial television and/or radio signals and other licensed forms of radio frequency communication. All metroPCS equipment operating at the proposed communications facility and the resulting radio frequency exposure level will be compliant with Federal Communications Commission requirements as well as health and safety standards. Frantz Pierre Radio Frequency Engineer metroPCS October 23, 2008 POWER DENSITY CALCULATION metr VI ^S Unfirnit Yourdi Site Information Site Name: Site Address: Antenna Information Antenna Centerline (ft) @6ft Antenna Type: ERP: MPE Calculation MAXIMUM MPE (uW/cm') MAXIMUM %MPE: 29.143174 Power Density = 2.91% SUMMARY Meets FCC Controlled Limits for The Antennas Systems. Meets FCC Uncontrolled Limits for The Antenna Systems. No Further Analysis Required. 0.64 x EIRP nxR2 x1000 2438.4 cm 74 2255.52 cm Kathrein 742351 58.62 dBm 727.78 Watts 29.143174 Power Density = 2.91% SUMMARY Meets FCC Controlled Limits for The Antennas Systems. Meets FCC Uncontrolled Limits for The Antenna Systems. No Further Analysis Required. 0.64 x EIRP nxR2 x1000 metro ICS. Unlimit Yourself. October 23, 2008 RE: COMPLIANCE WITH FCC REGULATIONS REGARDING MAXIMUM PERMISSABLE EXPOSURE (MPE) LIMITS I have reviewed the accompanying application for the proposed installation of a wireless communications facility at 70 Elm St., North Andover, MA. In 1985, the FCC established rules to regulate radio frequency (RF) exposure from FCC licensed antenna facilities. In 1996, the FCC updated these rules, which were further amended in August 1997 by a Second Memorandum Opinion and Order. These new rules represent a consensus of the federal agencies responsible for the protection of public health and the environment, including the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the National Institute for Occupational Health and Safety (NIOSH), and the Occupational Safety and Health Administration (OSHA). Under the laws that govern the delivery of wireless communications services in the United States, as amended by the Telecommunications Act of 1996, the FCC has exclusive jurisdiction over RF emissions from personal wireless antenna facilities, which include cellular, PCS, AWS, messaging and aviation sites. Pursuant to its authority under federal law, the FCC has established rules to regulate the safety of emissions from these facilities. Table 1 below shows the MPE limits as stated by the FCC for public/uncontrolled and occupational/controlled environments. Table 1: Maximum Permissible Exposure limits Frmuency PublidUmomrolled Ikc ' nallcm% ed Cellular 550 µW/cm 2,750 µ W/cm PCs 1000 µ W/cm 5,000 µ W/cm As shown in the table above, the limits for MPE levels for PCS is 1000/[ W/cm'. The attached calculation shows the maximum power density from the metroPCS installation at this location to be 29.14µ W/cm' or 2.91% of the FCC limits for Personal Wireless Communications systems. Please feel free to forward any additional questions regarding the MPE limits to me. Sincerely, �qyq �en6- Frantz Pierre Radio Frequency Design Engineer FPierre@metroPCS.com ,> to Federal Communications Commission N Page 1 of 2 is Wireless Telecommunications Bureau 93 VY.. Radio Station Authorization LICENSEE NAME: wet -OPCS AWS. LLC MARK A. STACHIW METROPCS Ads, LLC 9144 WALNUT HILL LANE. SUITE 800 DALLAS TX 75231 FCC Registration Number (FRN) 0015005598 Call Sign File Number WOGA731 0002773570 Radio Service AW - AWS. 1710-1755/2110-2155 MHz bands Grant Dab Effective Date Expiration Date Print Date 1 11-29-2006 11-29-2006 I il-2 11-30-2006 Market Number Channel Block Sub- Market Designator REA001 D 0 Market Name: Northeast 3rd Build -out Date SPECIAL CONDITIONS OR WAIVERS/CONDITIONS This authorization is conditioned upon the licensee, prior to initiating operations from any base or fixed station, making reasonable efforts to coordinate frequency usage with known co -channel and adjacent channel incumbent federal users operating in the 1710-1755 MHz band whose facilities could be affected by the proposed operations. see, e.g., FCC and NTIA Coordination Procedures in the 1710-17E5 MHz Banc, Public Notice. FCC 06-50. WTB docket No. 02-353. rel. April 20. 2005. AWS operations must not Cause harmful interference across the Canadian or Mexican Border. The ('Special Conditions or Waivers/Conditions" continued on next page ...) Pursuant to Section 309(h) of the Communications Act of 1934, as amended, 47 U.S.C. Section 309(h), this license is subject to the following conditions: This license shall not vest in the licensee any right to operate the station nor any right in the use of the frequencies designated in the license beyond the term thereof nor in any other manner than authorized herein. Neither the license nor the right granted thereunder shall be assigned or otherwise transferred in violation of the Communications Act of 1934, as amended. See 47 U.S.C. Section 310(d). This license is subject in terms to the right o1 use or control conferred by To viewthe geographic areas associated with the license, go to the Universal Licensing System (ULS) homepage at http://wireless.fcc,goviuls and select "License Search'. Follow the instructions in how to search for license Info rmaSon. Fabniary 2C0` metro P C S 285 Billerica Rd 3rd Floor Chelmsford, MA 01824-4120 LETTER OF AUTHORIZATION This Letter of Authorization dated February 18, 2008 provides written authorization for New England Wireless Solutions, LLC to apply for any necessary zoning petitions, permits or any other approvals, including, but not limited to the filing of a building permit application (atter required zoning approval has been completed), which are necessary for the placement of a wireless communications facility on behalf of MetroPCS Massachusetts, LLC. If you have any questions regarding this authorized agency please feel free to contact me. Thank you. Kate ugman Site Acquisition Manager metroPCS Boston Market 285 Billerica Rd., 3rd Floor Chelmsford, MA 01824 Office: 978-244-7287 Fax: 978-244-7240 LETTER OF AUTHORIZATION This Letter of Authorization dated this I — day of , 2008, provides written authorization for MetroPCS Massachusetts, LLC, a Delaware limited liability company ("Lessee"), its attorney, agents or representatives, to apply for any necessary zoning petitions, permits or any other approvals, including, but not limited to the filing of a building permit application (after required zoning approval has been completed), which are necessary for Lessee's placement of a wireless communications facility within a portion of the Lessor's real property, commonly known as: Trinitarian Congregational Church of North Andover, located in the State of Massachusetts, County of Essex, City/Township of North Andover, legally described as: 70 Elm Street (Map 042 / Lot -0002). This Letter of Authorization shall not constitute an agreement to enter into a binding agreement and neither party shall be bound with regard to the leasing of the above mentioned property until a final agreement has become fully executed between the parties. LESSOR: By. 4A William W Pickles III Chairman, Trustees Trinitarian Congregational Church North Andover, Massachusetts Site No. BOS0380C_ Site Name: Trinitarian Congregational Church State: Massachusetts nONM1rk,nann r ) euuMrp Capt. ( ) fO1WNYT ( ) loaq ( ) AWttda P.Movid biyi Pa�fl No - 41 9 41 10 41 11 41 13 41 14 41 m 41 17 41 16 41 19 41 21 41 22 41 0 41 34 41 35 41 27 41 4D 41 0 42 1-0001.0 42 1 O 0 42 1-000.1.0 42 8 42 4 W82A 42 420.1213 42 4 ODM4 42 5 42 12 42 13 42 14 42 15.0000.8 42 15400 F 42 10 42 17 42 20 42 21 42 22 42 34 55 1 55 5 56 7 55 8 55 9 55 13 55 34 55 35 Blaen Mornmel FUMRI Home, LLC Amur McCue Harold McPhee Harold MCPIce RkS. Tlwmton Rich Geeing Barbara Oakea Eland Cannella Cad, Nulell JaMph MonRMla GanMe Paradis John Snd1a1 Hari wphee Rpn Nai Swan FOnahro Mlr0inM Kallen rel C." A Mress 3137 Melmnatk Street 57-59 Water Saw 63 Was, SLad .3 W0*, Sdetl 46 Chinch Slreet 17 Me moa& Stleet 15 MerhmaQ SVBH 11 Marmai Smaid 222 Main Used 36 Nam SPeN 22 Garden Stand PO B. 4 63Waler Street 21 Mearni Went 53 Wide, Sheol 56 Church Street 65 Grein SkeH 66 Elm Seem R1 86 Elm SbM 12 Be Elm S. 03 42e4 cwrm Street 32 Chi SdeetM 32 Cha.h SIRet 1B a4Om,roa Sreet 30 Church SaeM 27 Gump Street 92 Elm Street Be Elm S11ead 5,011 Elm Sired 54F Elm Street 0 Elm Seem 46 Elm Street 265 Men Sheet 54 Brocaded Road 45 Elm Sbait 9 Pleasant SOaet 40 Coup street 65 Elm Sire4 71 Chickw g Road 77 Elm So. 838mStreet 59 EM S. 91 Handseled Stmet 20 Pleeum Sbetl This certifies that the insures appearing on the records ofthe Psses-T Office as of �wAaa.l� is pq� Certified bi 4 pate /051 41 MOM Andimer. IM 01845 NOM Podded, rM DIMS NOM Anlpvar, Mi DIMS NOM Andover, Mi DIMS Nand Anoover, IM 01845 NOM Amman. 054 01815 NOM Arl MA 01845 Nam Andover, MA 01045 NOM ArdOwr, Mi 01055 NOM AMOver, W OIMS Saul Me 01905 NOM Andmb, lM 01845 Mayland, NA 01778 NOMMM va,IM Ot&5 MOM Are..MA 01015 NOM Andwx, lee 0180 Month Andowv. 054 01845 NOM Andmi SM 0IMS Ndlh Amax. MA 01845 Norm Andover , MA 01846 NOM Andwtt, MA 0180 NOM Andmer and 01845 NOM Andartt, lee DIMS NOM Andand, FM 01545 NOM Andover, MA 01 US Norm AnWrer, MA 01845 Nom, And>rtt, MA 01845 Norm Andover, MA, 01845 NMh Andover, MA 01846 Nath Molded, MA 0IM5 NOM An(bwr, FM OINS NOM AnBc ,MA SIM NMnAndoter MA 01845 Noon AMwYr, MA 01845 Andover Ml 01810 NOM AndOwr, W DIMS Nam A., NM 01&5 N}01Andwer, Ni 01845 NOM Pori MA 01815 NOdh Andover, MA 01845 Nam AndoverMA 01845 NOM Andover, MA 0180 Soon Aamc— MA 01845 Meemen, klA On NOM AndwV, MA 01845 Coro wn2nd9 aqe ' 1 d rr .. ammr wwam+rvwaan>.aw.mw.suoan u.we.n.a.. m.mau. rnrww....a Km�r+e maa..+r�.wwarmm..��� 9rpFr/roun.' b19C PARCEL N8O4 ALldrs 42 12 Tani COrgre9MOnsl Chame 72EAn500e1 AWttda P.Movid biyi Pa�fl No - 41 9 41 10 41 11 41 13 41 14 41 m 41 17 41 16 41 19 41 21 41 22 41 0 41 34 41 35 41 27 41 4D 41 0 42 1-0001.0 42 1 O 0 42 1-000.1.0 42 8 42 4 W82A 42 420.1213 42 4 ODM4 42 5 42 12 42 13 42 14 42 15.0000.8 42 15400 F 42 10 42 17 42 20 42 21 42 22 42 34 55 1 55 5 56 7 55 8 55 9 55 13 55 34 55 35 Blaen Mornmel FUMRI Home, LLC Amur McCue Harold McPhee Harold MCPIce RkS. Tlwmton Rich Geeing Barbara Oakea Eland Cannella Cad, Nulell JaMph MonRMla GanMe Paradis John Snd1a1 Hari wphee Rpn Nai Swan FOnahro Mlr0inM Kallen rel C." A Mress 3137 Melmnatk Street 57-59 Water Saw 63 Was, SLad .3 W0*, Sdetl 46 Chinch Slreet 17 Me moa& Stleet 15 MerhmaQ SVBH 11 Marmai Smaid 222 Main Used 36 Nam SPeN 22 Garden Stand PO B. 4 63Waler Street 21 Mearni Went 53 Wide, Sheol 56 Church Street 65 Grein SkeH 66 Elm Seem R1 86 Elm SbM 12 Be Elm S. 03 42e4 cwrm Street 32 Chi SdeetM 32 Cha.h SIRet 1B a4Om,roa Sreet 30 Church SaeM 27 Gump Street 92 Elm Street Be Elm S11ead 5,011 Elm Sired 54F Elm Street 0 Elm Seem 46 Elm Street 265 Men Sheet 54 Brocaded Road 45 Elm Sbait 9 Pleasant SOaet 40 Coup street 65 Elm Sire4 71 Chickw g Road 77 Elm So. 838mStreet 59 EM S. 91 Handseled Stmet 20 Pleeum Sbetl This certifies that the insures appearing on the records ofthe Psses-T Office as of �wAaa.l� is pq� Certified bi 4 pate /051 41 MOM Andimer. IM 01845 NOM Podded, rM DIMS NOM Anlpvar, Mi DIMS NOM Andover, Mi DIMS Nand Anoover, IM 01845 NOM Amman. 054 01815 NOM Arl MA 01845 Nam Andover, MA 01045 NOM ArdOwr, Mi 01055 NOM AMOver, W OIMS Saul Me 01905 NOM Andmb, lM 01845 Mayland, NA 01778 NOMMM va,IM Ot&5 MOM Are..MA 01015 NOM Andwx, lee 0180 Month Andowv. 054 01845 NOM Andmi SM 0IMS Ndlh Amax. MA 01845 Norm Andover , MA 01846 NOM Andwtt, MA 0180 NOM Andmer and 01845 NOM Andartt, lee DIMS NOM Andand, FM 01545 NOM Andover, MA 01 US Norm AnWrer, MA 01845 Nom, And>rtt, MA 01845 Norm Andover, MA, 01845 NMh Andover, MA 01846 Nath Molded, MA 0IM5 NOM An(bwr, FM OINS NOM AnBc ,MA SIM NMnAndoter MA 01845 Noon AMwYr, MA 01845 Andover Ml 01810 NOM AndOwr, W DIMS Nam A., NM 01&5 N}01Andwer, Ni 01845 NOM Pori MA 01815 NOdh Andover, MA 01845 Nam AndoverMA 01845 NOM Andover, MA 0180 Soon Aamc— MA 01845 Meemen, klA On NOM AndwV, MA 01845 Coro wn2nd9 aqe ' 1 d STRUCTURAL ANALYSIS REPORT For BOS0380C 70 Elm Street North Andover 70 Elm Street North Andover, Massachusetts Antennas in the Steeple and Equipment on the Ground Floor MetroPCS WIRELESS 285 Billerica Road, Third Floor Chelmsford, MA 01824 Dated: October 7, 2008 Prepared by: �0 HUDSON DESIGN GROUP, LLC. 1600 Osgood Street Building 20 North, Suite 2-101 North Andover, MA 01845 Phone: (978) 557-5553 Hudson©, Design Groupuc O SCOPE OF WORK: Hudson Design Group LLC (NDC) has been authorized by MetroPCS to conduct a structural evaluation of the existing roof structure supporting the proposed MetroPCS equipment located in the areas depicted in the Hudson Design Group Lease Exhibit dated 10-02-2008. This report represents this office's findings, conclusions and recommendations pertaining to the support of MetroPCS's proposed BTS, Battery and PPC cabinets. This office conducted an on-site visual survey of the above areas on September 26, 2008. Attendees included Michael Cabral (HDG-Project Engineer), Andrew Powers (HDG-Associate). CONCLUSION SUMMARY: No design documents were available for our use. A limited visual survey of the structure was complete in or near the areas of the Proposed Work. Based on our evaluation, we have determined that, in general, structural designs to support the proposed MetroPCS Equipment within or near the Proposed Lease Area can be completed and components installed with NO STRUCTURAL UPGRADES REQUIRED to the existing structure. The proposed antennas are to be secured to pipe masts attached at the top and bottom with lag screws to the existing wood structure directly behind the existing louvers. The louvers are recommended to be replaced with an FRP material. A summary of the proposed support types and attachment locations are as follows: Proposed BTS (wt= 734 lbs) ...Located at inside an existing closet supported at the ground level. Proposed Battery Cabinet (wt= 2210 lbs).... Located at inside an existing closet supported at the ground level. Proposed Galaxy Power Cabinet (wt= 27201bs).... Located at inside an existing closet supported at the ground level. Proposed PPC (wt=200+/- lbs) .... Located at inside and existing closet secured to the wall. Proposed (8) Antennas ............ Mounted directly behind the existing louvers supported on pipe masts directly below the clock tower. Hudson� Design Group4 Calculations and referenced documents are attached. DESIGN CRITERIA: I. Massachusetts State Building code, latest edition. Wind Analysis. (N/A due to Antennas being enclosed with the staple) Reference Wind Speed, q(z): 110 mph [780CMR 1604.10] Exposure: C Category: 11 [ASCE 7-05 T1.l] Gust -effect Factor, G: .85 [ASCE Sect 6.5.8.1] Force Coefficient, C(f): varies [ASCE Fig 6-21] F = q(z) x G x C(f) x A(f) [ASCE 7.05 Eq 6-281 Snow Loading: Basic Ground Snow Load: 55 psf [780CMR 1604.10] 2. EIAMA -222- F Structural Standards for Steel Antenna Towers and Antenna Supporting Structures County: Essex Wind Load: 90 mph 3. Approximate height above grade to antennas: 80'-0" Hudson� Design Group: rcO EQUIPMENT SUPPORT RECOMMENDATIONS: HUG recommends that the proposed equipment be located inside the existing closet below the stairs supported by the existing concrete slab. ANTENNA SUPPORT RECOMMENDATIONS HUG recommends the antennas he located directly behind the existing louvers (See photos attached). The antennas will he supported by new pipe masts secured at the top and bottom with standard lag screws attachments to the existing wood structure. The existing louvers are recommended to be replaced with an PRP material painted to match the look of the existing louvers. Lag screws will be designed and furnished in the construction drawings Hudsonr Design GrOupuC O LOCATION OF PROPOSED EQUIPMENT: Photo 1: Sample photo of the existing closet located at the ground level below the stairs when the equipment is proposed to be located. Hudson©r Design Group «O Photo 2: Sample photo of the existing closet below other stairwell on opposite end of proposed equipment location. Be advised of the concrete Floor shown above similar to what is supporting the proposed equipment. Hudson© Design Group acO LOCATION OF PROPOSED ANTENNAS WITHIN THE CHURCH STEEPLE: Photo 3: Sample photo of where new MetroPCS antennas are proposed to be located behind the existing louvers shown above. These louvers are recommended to be replaced with an FRP material. Hudson© Design GroupucO . PROPOSED PRELIMARY SKETCHES TOP OF EXISTING SPIRE ELEV. 150'-0`f (AGE) PROPOSED ANTENNA (TYR. OF B) BEHIND FIBERGLASS LOWERS TO MATCH EXISTING PROPOSED ANTENNAS (TOTAL Bi EXISTING AFL I. EtEV. 60'-O'i (ACL) TOWER PROPOSED COV( RUN FROM EQUIPMENT TO ANTENNAS EXISTING CHURCH \\ FLOOR LEVEL ELEV. 31-1 (AGL) i 1 I 8 PROPOSED PROPOSED 12'-10'%7'-O' LEASE AREA UNDER STAIRS GROUND CONWTS 8 (MPR%. 120 SD. F'f) INSIDE CHURCH EAS ELEVA ��N — _ _ jo GROUND iD�VLOEVO10/AGE 02/08 REV 1: DS 29 0B SITE NO: BOS0380C tpCS DATE: SITE NAME: TRINITARIAN CONGREGATIONAL S. SITE TYPE. CHURCH 09/25/08 CHURCH V~\YnW. ADDRESS: 70 ELM STREET 10.5 §i II "0Wl$ Toon NORTH ANDOVER, MA 01845 CXOImOIO, W 01!14 DRAWN BY: PG SCALE: NTS EXPAND INTO DEAD AREA IF AVAILABLE WM NAAO /AMN CONGREGATIONAL CHURCADDS w ELO s>Rm NORM NIDDM, MIA 01845 FA 17D PROPOSED WDOOR MOOCELL CASINEr LOW CEILING EL. -6'-8' _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ II II II II I II I SLOPE UP II I EXISTING WALL Y TI TO REMOVED II I I HIGH CEILING IEL. -10'-5' II � L 50' EQUIPMENT PLAN CLOSET UNDERNEATH STAIRS GRADE LEVEL 115 ALM RD* -MEI FLOM OWIVOR), VA 61814 � z 1001/06 //05 DATE: 09/30/00 I.- ..- C SITE«ti T 5- y,5 f E J� 10 PHOTO LOCATION / •vnNx. Z HoxTry J) PHOTO LOCATION MAP STE NO: B0S0380C SITE TYPE: CHURCH DATE: .E Nom: TRINITARIAN CONGREGATIONAL metro _J. 10/20/08 CHURCH ADDRESS 70 ELM STREET 255 SIUFRICA ROAD -THIRD FLOOR DRAWN BY: PC SCALE: NTS NORTH ANDOVER, EIA 01845 CHELMSFORD. MA 01824 { i r 4 G SED ANTENNA B) BEHIND n r R l !®�FIBERL !® TO MATCHSE%6 NGS 4 r \ y - L PHOTO LOCATION #1 PROPOSED CONDITIONS PROPOSED EOUIPMENT AND ANTENNAS NOT VISIBLE SITE NO: BOS0380C p SITE TYPE: CHURCH DATE: .SITE NAME: TRINITARIAN CONGREGATIONAL metro 10/20/08 CHURCH Md'wdt Yo N. ADDRESS 70 ELM STREET 785 BILIERICA R -THIRD FLOOR CHELMSFORD, w 0182 DRAWN BY: PC SCALE NTS NORTH ANDOVER, MA 01845 r' T PHOTO LOCATION #2 EXISTING CONDITIONS SITE NO+ HOS0380C SITE TYPE: CHURCH DATE: SRE NAME: TRINITARIAN CONGREGATIONAL metro 10/20/08 CHURCH wF.++Yoiii11' ADDRESS Co ELM STREET zes CHELMSF ROAD-THIRDMA018 noon CHELMSFORD, MA mB24 DRAWN BY: PG SCALE: NTS NORTH ANDOVER, MA 01845 PHOTO LOCATION #2 PROPOSED CONDITIONS PROPOSED EQUIPMENT AND ANTENNAS NOT VISIBLE SITE NO: BOS0380C �.y SITE TYPE: CHURCH DATE. SITE NAME: CONGREGATIONAL metro 10/20/08 CHURCH ADDRESS 70 ELM STREET 285 NUERIC4 R61 THRD FUWR NORTH ANDOVER. MA 01845 CHELMSFORD, M6 01924 DRAWN BY: PG SCALE: NTS PHOTO LOCATION #3 EXISTING CONDMONS SITE NO: B050380Ct SITE NAME: TRINITARIAN CONGREGATIONAL CHURCH `C` met �J, SITE TYPE: CHURCH DATE: to/20/OR ADDRESS 70 ELM STREET NORTH ANDOVER. MA 01845 285 C1[wSFORO D- o1RO FLOOR DRAWN BY: Pc SCALE rs PROPOSED ANTENNA (TP. OF 8) BEHIND: FIBERGLASS LOUVERS TO MATCH EXISTING A 1 _ U ■ it PHOTO LOCATION #3 PROPOSED CONDITIONS PROPOSED EOUIPMENT AND ANTENNAS NOT VISIBLE Sn NO: BOS0380C metro SITE TYPE CHURCH 20/08 10/2 Sr E NAME: TRINITARIAN CONGREGATIONAL It DRAWN BY: PG SCALE: NTS CHURCH ADDRESS' 70 ELM STREET 285 BCLLERCA ROAD-THIRDRD, D F � NORTH ANDOVER, MA 01845 PHOTO LOCATION #4 EXISTING CONDITIONS SME NO: BOS0380C may, SITE TYPE: CHURCH DATE SME NAME: TRINITARIAN CONGREGATIONAL metro 10/20/08 CHURCH jwi tY rW". ADDRESS 70 ELM STREET 185 BILLERICA ROAD-THIRD FLOOR DRAWN BY: PG SCALE: NTS NORTH ANDOVER, MA 01845 CHELMSFORD, M 01824 PHOTO LOCATION #4 PROPOSED CONDITIONS PROPOSED EQUIPMENT AND ANTENNAS NOT VISIBLE SITE NO BOS0380C p SITE TYPE: CHURCH DATE: SFE NAME; TRINITARIAN CONGREGATIONAL metro 10/20/06 CHURCH U"Min14 � ADDRES& 70 ELM STREET 295 DULERICA ROAD-THIRD FLOOR CHELMSFORD, MA 01824 DRAWN BY: PG SCALE: NTS NORTH ANDOVER, MA 01845 6er-k4�-Pr- /a.-/ 1,30 NOTICE OF FILING OF ACTION RE: NORTH ANDOVER PLANNING BOARD WIRELESS SPECIAL PERMIT DECISION RELATING TO 70 ELM STREET, NORTH ANDOVER. APPLICANTS: METROPCS MASSACHUSETTS, LLC & TRINITARIAN CONGREGATIONAL CHURCH OF NORTH ANDOVER Please take NOTICE according to Massachusetts General Laws, c. 40A, § 17, that an action was commenced on June 13, 2012 in the Essex County Division of the Superior Court Department of the Massachusetts Trial Court. The action is styled and captioned as below. Attached to this Notice is a copy of the Complaint to which is affixed a certified copy of the Decision of the North Andover Planning Board appealed from. The Complaint alleges that the Decision of the Planning Board exceeds its authority and prays that it be annulled for that reason. ESSEX, ss. COMMONWEALTH OF MASSACHUSETTS TRIAL COURT SUPERIOR COURT DEPARTMENT Civil Action No. ESCV2012- ANDREW FOURNIER, MARK DEPOLITO, LIZ FENNESSY, DAGMAR SCHNELLINGER, LAURETTA E. WENTWORTH, and MARTHEA FOURNIER, Plaintiffs, V. JOHN SIMONS, MICHAEL COLANTONI, DAVE KELLOGG, and RICHARD ROWEN, as they are members of the Planning Board of the Town of North Andover, Massachusetts, TRINITARIAN CONGREGATIONAL CHURCH OF NORTH ANDOVER, and METROPCS MASSACHUSETTS, LLC, Pwfnn rinnfn_ Tw ," TiU W �> to rl ESSEX, ss. COMMONWEALTH OF MASSACHUSETTS TRIAL COURT SUPERIOR COURT DEPARTMENT Civil Action No. ESCV2012- ANDREW FOURNIER, MARK DEPOLITO, LIZ FENNESSY, DAGMAR SCHNELLINGER, LAURETTA E. WENTWORTH, and MARTHEA FOURNIER, Plaintiffs, V. JOHN SIMONS, MICHAEL COLANTONI, DAVE KELLOGG, and RICHARD ROWEN, as they are members of the Planning Board of the Town of North Andover, Massachusetts, TRINITARIAN CONGREGATIONAL CHURCH OF NORTH ANDOVER, and METROPCS MASSACHUSETTS, LLC, Defendants. 01845. COMPLAINT 1. Plaintiff Andrew Fournier resides at 247 Main Street, North Andover, MA 01845. 2. Plaintiff Mark Depolito resides at 9 Pleasant Sheet, North Andover, MA 01845. 3. Plaintiff Liz Fennessy resides at 77 Elm Street, North Andover, MA 01845. 4. Plaintiff Dagmar Schnellinger resides at 83 Elm Sheet, North Andover, MA 01845. 5. Plaintiff Lauretta E. Wentworth resides at 15 Pleasant Sheet, North Andover, MA 6.. Plaintiff Marthea Fournier resides at 247 Main Street, North Andover, MA 01845. 7. All plaintiffs are parties in interest as defined in G.L. c. 40A, § I I and all plaintiffs are aggrieved, as defined in G.L. c. 40A, § 17, by the Decision of the Planning Board of the Town of North Andover filed on May 24, 2012 with the North Andover the Town Clerk with respect to the application of defendant MetroPCS Massachusetts LLC for renewal of a Special Permit affecting the premises of defendant Trinitarian Congregational Church located at 79 Elm Street, North Andover, Massachusetts ("the Decision"). 8. Defendant John Simons resides at 25 Ironwood Road, North Andover, MA 01845. He is the Chairman and a member of the Planning Board of the Town of North Andover, Essex County, Massachusetts. 9. Defendant Michael Colantoni resides at 50 Christian Way, North Andover, MA 01845. He is a member of the Planning Board of the Town of North Andover, Essex County, Massachusetts. 10. Defendant David Kellogg resides at 19 Ciperpress Way, North Andover, MA 01845. He is a member of the Planning Board of the Town of North Andover, Essex County, Massachusetts. 11. Defendant Richard Rowen resides at 102 Bear Hill Road, North Andover, MA 01845. He is a member of the Planning Board of the Town of North Andover, Essex County, Massachusetts. 12. Defendant MetmPCS Massachusetts, LLC ("MetroPCS"), is a Delaware limited liability company with offices located c/o New England Wireless Solutions, 17 Indian Trail, York, Maine 03909. 13. Defendant Trinitarian Congregational Church of North Andover ("Trinitarian Congregational Church") has its offices at 72 Elm Street in the Town of North Andover, Essex County, Massachusetts. Trinitarian Congregational Church is a congregation of the United Church of Christ. and is a "place of worship" within the meaning of § 2.60 of the North Andover Zoning Bylaw. Trinitarian Congregational Church is located in a single residence zoning district (denominated "RV).. The plaintiffs' homes are also located in the same R 4 single family zoning district. Dover Amendment 14, Trinitarian Congregational Church, a place of worship, and its structures, including its steeple, is located in a R-4 residentially zoned district only by virtue of the Dover Amendment, G.L. c. 40A, § 3. 15. As relevant hem, the Dover Amendment protects only those uses of land and associated stmctures that have as their bona fide goal something that can reasonably be described as religiously significant. 16. Further, to maintain the exemptions provided by the Dover Amendment from otherwise applicable zoning requirements, the religiously significant goal must be the "primary or dominant' purpose for which the land or structures will be used. 17. Providing commercial wireless service facilities, or telecommunications uses, or structures, or other radio facilities uses, or the like, is act a bona fide religiously significant goal for Trinitarian Congregational Church as a place of worship 18. Further, the provision of commercial wireless service facilities, or telecommunications uses, or structures, or other radio facilities uses, or the like, is not the primary or dominant purpose for which the Trinitarian Congregational Church land or structures will be used. 19. Thus, the Decision violates the purpose of a Special Permit as set forth in G.L. C. 40A, § 9: 20. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ... [zoning] by-law ... 21, Indeed, the North Andover Planning Board does not make in its Decision the necessary finding under G.L. c. 40A, § 9, that the uses ostensibly provided by the Decision are in harmony with the general purpose and intent of the ... [zoning] by-law ... Property Values 22, § 1 of the North Andover Zoning Bylaw provides in relevant part: The purpose of this Bylaw is the promotion of the health, safety, convenience, morals and welfare of the inhabitants of the Town of North Andover .... by regulating and restricting the use of land and buildings, thereby: 1. encouraging the most appropriate use of land; ... 3. conserving the value of land and buildings; 23. § 8.9, Wireless Service Facilities, of the North Andover Zoning Bylaw provides: 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 ... 24. The Decision and the wireless service facilities it would allow in a place of worship has a deleterious impact on the value of plaintiffs' properties and does not conserve the value of plaintiffs' land and buildings, as required by the North Andover Zoning Bylaw. Setbacks 25. According to the Decision, the Planning Board approved a Wireless Special Permit for the installation of a Wireless Facility on" existing structure" [emphasis added]. 26. The Decision purports to renew the grant a Wireless Special Permit under Section 8.9 of the Zoning Bylaw of the Town of North Andover. 27. Section 8.9.3(v)(1) of the Zoning Bylaw of the Town of North Andover provides: v) Setbacks ...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. 28. Section 8.9.3(v)(2) of the Zoning Bylaw of the Town of North Andover provides: (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 [emphasis added] . 29. The definitions section of the North Andover wireless services facilities bylaw (Section 8.92 (q) defines "Mount' in relevant part as "The structure or surface upon which antennas are mounted, including the following four types of mounts:... (4) Structure -mounted: Mounted on a structure other than a buildine [emphasis added] .... 30. The original drafters of Section 8.9 filed the following memorandum with the Planning Board during the public hearing on the Application: 31. The Zoning Bylaw establishes front, rear, and sideyard requirements [see Table 2 of the North Andover Zoning Bylaw] between wireless services facilities and properties in the R4 zoning district that are zoned or used for permitted uses other than residential or educational uses [Section 8.9 3 (c)(v)(1)]. For example, the Zoning Bylaw requires setbacks between wireless services facilities and the lot lines of properties used for agriculture, farming, the sale of products grown on the farmland, as a cemetery, a golf course, a municipal recreation area, a public building, or a recreation area [see Table 2 and Section 8.9.4.122]. 32 At a minimum, all wireless services facilities must comply with the building setback provisions of the zoning district in which such wireless services facilities are located [Section 89.3 (cxv)]. 33. In addition, however, there must be a distance of 600 feet (setback) between wireless devices, antennas, and their mounting structures and properties zoned or used for residential or educational purposes [Section 8.9 3 (c)(v)]. 34. The Decision seeks to read that setback requirement, adopted by the North Andover Town Meeting, out of the North Andover the Zoning Bylaw. 35. A 600 foot setback requirement is mandated for the distance between wireless services facilities and properties used for educational or residential uses. 36. Section 8.9 3 (c)(v) addresses the appropriate setback requirements for "[A]II" wireless services facilities." Wireless services facilities are defined to include "towers, antennae, antennae support structures, panels, dishes, and accessory structures" [Section 8.92 (z)]. 37. Subsection (I) of Section 8.9 3 (cxv) distinguishes among ground mounted wireless services facilities, new structures, and existing structures (all as antenna mounts). 38. Subsection (2) of Section 8.9 3 (cxv) distinguishes between preexisting structures and preexisting nonconforming structures (as antenna mounts). It establishes that all of them must comply with the building setback provisions of the zoning district in which such wireless services facilities are located. 39. 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." 40. Buildings are explicitly excluded from the preexisting structures referenced in Section 8.9 3 (cxv)(2), 41. Section Section 8.9 3 (c)(v)(2), presents setback requirements for previously existing structures other than buildings. 42. The setback requirements for structure mounted wireless service facilities are established in. Section 8.9 3 (c)(vx2). 43. By the explicit terms of the definition section of the wireless service facilities portion of the North Andover Zoning Bylaw, Section 8.9 3 (c)(v)(2) does not apply to buildings or parts thereof [see Section 8.9.2 (qx4)]. The word "mount" is defined as "[[]he structure or surface upon which antennas am mounted." 44. The term "mount" is further defined for roof mounted, side -mounted, ground - mounted, and structure -mounted antennas. 45.By its own terms, Section 8.9 3 (c)(v)(2) deals exclusively with structure -mounted wireless service facilities. 46. Stmctum-mounted is defined so as to exclude buildings ("Structure- mounted:[Antennas] Mounted on a structure other than a building.") See Section 8.92 (q) (4). 47. Therefore, Section 8.9 3 (c)(v)(2) does not apply at all to buildings (ie., here, to church buildings or places if worship). 48. In any case, where an adjacent parcel contains an educational or residential use, new or existing structures for wireless service facilities require a 600' setback. See 9 277, above. 49. The North Andover Zoning Bylaw establishes a setback requirement of at least six hundred feet (600') between wireless service facilities (including devices, antennas, and their mounting structures) and properties that am zoned for any type of residential or educational use. 50. Despite the clear language of Section 8.9 3 (c)(v), the past history of the Zoning Board of Appeals in considering variances from the 600 foot setback requirement, and the intervention of the drafters of Section 8.9 of the North Andover the Zoning Bylaw, the North Andover Planning Board saw fit to act in a contrary fashion and purported to renew the grant of a Wireless Special Permit instead of requiring the Applicant to submit a petition for a variance(s) under the the Zoning Bylaw Findines of Fact 5l. In its Decision, the Planning Board made certain Findings of Fact. 52. So-called Finding of Fact d) is a conclusion of law that misstates the import of the federal Telecommunications Act of 1996 and the holding after appeal of a referenced Essex County Superior Court case. 53. The applicant did not has demonstrate compliance with the Town of North Andover Zoning Bylaw requirements for this application. 54. The applicant did not comply with the renewal provisions of the first half of the second sentence of § 8.9.12 (a) of the North Andover Zoning Bylaw 55. The Planning Board did not comply with the renewal provisions of the first half of the second sentence of § 8.9.12 (a) of the North Andover Zoning Bylaw and did not in its Decision make the finding(s) required there, thereby invalidating its Decision to renew a Special Permit. 56. The Planning Board has a responsibility to act seriously and to make reasoned decisions based on substantial evidence, which it has not done in the Decision.. The North Andover Zoning Bylaw (Section 8.95(ix) contemplates that the Planning Board will make a "thorough review" of a proposed personal wireless services facilitiy, which it has not done in the Decision. 57. For all of these reasons, the Decision of the North Andover Planning Board was in excess of its authority and must be annulled. Other Issues 58. In addition„ the North Andover Zoning Bylaw improperly allows wireless services facilities in any zoning district by Special Permit (Section 8.9.3(aXiii)), in violation of G.L. c. 40A, § 11, 9 1. 59, The Applicant has not carried its burden of proving that there are no feasible preexistent structures upon which to locate its antennas, as required by Section 8.93(b)(iii), 60. The operation of the antennas purportedly permitted by the renewed Wireless Special Permit approved by the Planning Board in the Decision will alter the character defining features, the distinctive construction materials, and the original historic materials of the building in violation of Section 8.8.3(c)(i). 61. The placement and operation in the Trinitarian Congregational Church, allegedly "a place of worship" for zoning purposes, of wireless antennas and other wireless service facilities purportedly permitted by the renewed Wireless Special Permit approved by the Planning Board in the Decision will not preserve the character and integrity of the church, as required by Section 8.9.3(bxii) of the Zoning Bylaw. 62. The Applicant has not complied with the provisions of the Radiofrequency Radiation (RFR) Filing Requirements as set forth in the North Andover the Zoning Bylaw, especially in Section 8.9.5(d)(7).. 63. Defendant MetroPCS submitted with its Wireless Special Permit application a statement of a radio frequency engineer that refers, vaguely, to MetooPCS' alleged obligations and needs necessary to provide covemge, to resolve an alleged significant gap in the MetroPCS' wireless coverage and to resolve significant existing MehwPCS coverage inadequacy in North Andover. There are, however no specific details, only unverified and unsubstantiated conclusions. 64. The statement submitted by the MetroPCS engineer as part of the Application refers to radio frequency propagation modeling, computer simulations, and field tests but offers absolutely no specific information or data that would allow a knowledgeable person (or anyone else) to evaluate the merits of his conclusory self-serving claims. 65. Trinitarian Congregational Church is not a preexisting structure within the meaning of the bylaw with respect to wireless service facilities' uses; it was a new or existing structure for antenna mounting purposes and is governed by the requirements of Section 8.9.3(c)(1)of the North Andover Zoning Bylaw, which establishes a 600 foot setback from educational or residential uses. 66. The operation of wireless service facilities at the locus under the renewed Wireless Special Permit allowed by the North Andover Planning Board in the Decision constitutes a nuisance which is being imposed upon the legitimate expectation of the quiet enjoyment of their property by each plaintiff. 67'Their unconsented to exposure to health risks and the fear, anxiety, and anguish associated with such possible risks to their health is an injury to each plai miff, his or her family, and property, particularly where no defendant has demonstrated or can demonstrate that the plaintiffs and each of them and their families and property are nor exposed to harm from such exposures. 68. Under Massachusetts General laws, c. 40A, § IA, zoning ordinances and bylaws, are adopted by cities and towns to regulate the use of land, buildings and structures to the full extent LLI of the independent constitutional powers of cities and towns and to protect the health, safety and general welfare of their present and future inhabitants. 69. The protection of the health, safety, convenience, morals, and general welfare of the inhabitants of the Town of North Andover is an explicit purpose of the North Andover Zoning Bylaw.. 70. The preexistent structures referred to in Section 8.9.3(v)(2) of the North Andover Zoning Bylaw are water towers, guyed towers, lattice towers, fire towers, monopoles, telephone and electric utility structures that actually existed and that were actually being used as such before Section 8.9 of the current Zoning Bylaw became effective. 71. Because Section 8.9.3(v)(2) does not apply to buildings or to structures not actually being used for the mounting of antennas at the time the current bylaw became effective, it offers no comfort to those who claim that Section 8.93 (vx2) warrants the attaching or mounting of wireless service facilities to a church steeple unless there is a 600 foot setback from adjacent properties containing residential or educational uses. 72. The preexistent structure referred to in Section 8.9.3 (vx2) cannot be a building and it is plain error to construe the tern "preexisting structure in Section 8.9.3 (v)((2) as a building. . 73. There is no warrant in Section 8.9.3 (v)(2) for a claim that a church is the kind of preexisting structure that would somehow excuse adherence to the clear command of Section 8.93 (v)(1) that a 600' setback is required here for wireless services facilities. 74. The applicable section of the North Andover Zoning Bylaw is Section 8.9.3 (v)(1) and that section requires a 600 foot setback for either new or existing wireless devices, antennas, or their mounting structures from the property line of adjacent properties that contain educational or residential uses. I1 75. Them are both residences, including those of plaintiffs, and a school located closer to Trinitarian Congregational Church than 600 feet. 76, The allowance of a Wireless Special Permit by the North Andover Planning Board in the Decision is in excess of its authority and must be annulled. 77. The distance of less than 600 feet between the proposed ammrma mounts and the property line of adjoining properties and a school does not support an application for a renewed Wireless Special Permit by either MetroPCS or Trinitarian Congregational Church in the cimunstances here. 78. Despite language in the Planning Board Decision that merely parrots selected portions of the North Andover Zoning Bylaw, the Applicant did not comply with all of the general requirements or applicable provisions of the Zoning Bylaw as set forth in Section 8.9 thereof . 79. The Planning Board Decision asserts that "the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.9 ... 80. Neither the Application nor the Decision complies with the requirements for the issuance of a renewed Wireless Special Permit. 81. The Decision establishes illegal spot zoning. 82.Allowing special zoning treatment as detailed here for church owned property situated in the same zoning district the plaintiffs occupy, while denying such treatment to the plaintiffs, in effect, constitutes unequal protection of the laws under both the United States and Massachusetts constitutions to the detriment of the plaintiffs. 12 83. Thus, for all of these reason and each of them, the plaintiffs, all residents of the same North Andover single residence zoning district (R 4) as the similarly zoned locus, request that this honorable court annul as in excess of the authority of the Planning Board the renewal of Wireless Special Permit granted to MetroPCS and the Trinitarian Congregational Church by the North Andover Planning Board as filed with the North Andover Town Clerk on May 24, 2012 relating to 70 Elm Streetr, North Andover . 84. A certified copy of the Planning Board Decision is attached to this complaint. WHEREFORE, the plaintiffs, pursuant to G.L. c. 40A, § 17, request that this honorable court determine that the Decision granting renewal a Wireless Special Permit to MehoPCS and Trinitarian Congregational Church as filed with the North Andover Town Clerk on May 24, 2012 relating to 70 Elm Street, North Andover, is in excess of the authority of the Planning Board and must be annulled; and they also request that this court award them their costs and reasonable attorney's fees incurred in this action according to G.L. c. 40A, § 17, . Dated: Jane 13, 2012: Andrew Fournier Mark Depolito Liz Fennessy Dagmar Schnellinger Lauretta E. Wentworth Marthea Fournier By their att ey: Edw Ilinsl Post Office Box 35 Wayland, Massachusetts 01778 [508]-358-6666 ejclawRcomcast.net B.B.O. No. 092240 13 e RECEIVEo Town of North Andover iM' �:'CLERK'SC°°fFICE Office of the Planning Department 2012 HAY 24 PN 2: 39 Commtmity Development and Services Division 1600 Osgood Street North Andover, Massachusetts 01845 MASSAP,ChiUSEMOR " Uc;E'cil I i F NOTICE OF DECISION 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 l 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 D. Kellogg and a 2nd by R. Rowen, the Planning Board hereby APPROVES the renewal of a Wireless Special Permit, by a vote of 4 in favor and 0 against. On ehalf of the No i Andover Planning Board John'Simons, Chairman Michael Colantoni Dave Kellogg Richard Rowen A7fEST: A''rue CVY ria'—a St ..A� Town Cltric Special Petmit Renewal MetmPCS 70 nlm St. May 23, 2012 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: a) 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 (NOE) 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. b) 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. c) 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. d) 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 Special remit Renewal MatmPCS 70 Elm SL May 23, 2012 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. e) Finally the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.9 but requires conditions in order to be fully in compliance. The Planning Board hereby grants an approval to the applicant provided the following conditions are met: SPECIAL CONDITIONS: 1) Discontinuance Abandonment a) At such time that a licensed carrier plans to abandon or 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 to the equipment to be installed on the tower would require a new L Special Permit Renewal MetmPCS 70 Elm St. May 23, 2012 structural report to be submitted to the Planning Board for review. 3) Annual Certification: a) 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. 4) Term of Special Permit: a) 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. b) 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. c) 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 we 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. Spiel Permit R...] MetmPCS 70 Elm St. May 23, 2012 5) 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) 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. 7) The following information shall be deemed part of the decision: a) Application Titled: Application for Special Permit Renewal Metro PCS Massachusetts, LLC c/o New England Wireless Solutions, LLC 17 Indian Trail York, ME 03909 b) Documentation Submitted: 1 Roof -Top Communications Site Lease Agreement; Lessor: Trinitarian Congregational Church of North Andover, Lessee: MetroPCS Massachusetts, LLC a Delaware limited liability company. 2 MetroPCS Massachusetts, LLC & Trinitarian Congregational Church of North Andover Notice of Decision dated March 3, 2009 3 Structural Assessment Letter, dated February 12, 2012, prepared by Hudson Design Group LLC. 4 Noise Study, dated February 16, 2012, prepared by Noise Control Engineering, Inc. 5 RF Site Compliance Report, dated November 16, 2011, prepared by Sitesafe. 6 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 1a�tiY,a� Za F� 2. a,-49-t ert 9,00 9ef c 59��1 ,5e IAIL$ 5 Town of North Andover Office of the Planning Department 2012 MAY 24 PH 2: 39 Community Development and Services Division 1600 Osgood Street North Andover, Massachusetts 018451ASS�� tIAS., NOTICE OF DECISION 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 do 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 D. Kellogg and a 2nd by R. Rowen, the Planning Board hereby APPROVES the renewal of a Wireless Special Permit, by a vote of 4 in favor and 0 against. e�t� On ehalf of the Nor)fi Andover Planning Board John Sinions, Chairman Michael Colantoni Dave Kellogg Richard Rowen Special Permit Rmmw MwoPCS 70 Elm St May 23, 2012 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: a) 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. b) 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. c) 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. d) 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 a1 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 SpecialPermit Renewal Mtt PCS 70 Elm St May 23, 2012 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. e) Finally the Planning Board finds that this project generally complies with the Town of North Andover Zoning Bylaw requirements as listed in Section 8.9 but requires conditions in order to be fully in compliance. The Planning Board hereby grants an approval to the applicant provided the following conditions are met: SPECIAL CONDITIONS: 1) Discontinuance Abandonment a) At such time that a licensed carrier plans to abandon or 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 to the equipment to be installed on the tower would require a new Special Permit Removal Me PCS 70 Elm St May 23, 2012 structural report to be submitted to the Planning Board for review. 3) Annual Certification: a) 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. 4) Term of Special Permit: a) 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 pemtit, 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) 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. c) 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. Special Pemil Renewal Met PCS 70 Elm Sc May 23, 2012 5) 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) 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. 7) The following information shall be deemed part of the decision: a) Application Titled: Application for Special Permit Renewal Metro PCS Massachusetts, LLC C/o New England Wireless Solutions, LLC 17 Indian Trail York, ME 03909 b) Documentation Submitted: 1 Roof -Top Communications Site Lease Agreement; Lessor: Trinitarian Congregational Church of North Andover, Lessee: MetroPCS Massachusetts, LLC a Delaware limited liability company. 2 MetroPCS Massachusetts, LLC & Trinitarian Congregational Church of North Andover Notice of Decision dated March 3, 2009 3 Structural Assessment Letter, dated February 12, 2012, prepared by Hudson Design Group LLC, 4 Noise Study, dated February 16, 2012, prepared by Noise Control Engineering, Inc. 5 RF Site Compliance Report, dated November 16, 2011, prepared by Sitesafe. 6 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-15 A-1, A-2, A-3, S-19 E-19 E-2, M-1. Dated 4/l/09 and 4/14/09. CC: Abutters Applicant URBELIS & FIELDSTEEL, LLP 155 FEDERAL STREET ,9�p1I� AU6 Z Ri a' BOSTON, MASSACHUSETTS 02110-172 THO uS1. UUELIS e-mail yU uf-lew.w. August 8, 2013 North Andover Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 i,r', -.Telephone 976475-4552 Telephone 617-335-2200 Telempier 617-336-0122 RE: Marthea Fournier, et al. v. North Andover Planning Board, et al. Superior Court No. 12-1130-B Dear Members: The plaintiffs in this Superior Court case appealed the Board's renewal of a special permit for a wireless communication facility within the steeple of the Trinitarian Congregational Church on Elm Street. I filed a Motion and Memorandum of Law for Summary Judgment requesting dismissal. The Court heard arguments on April 18. Enclosed are the Superior Court's Summary Judgment and Memorandum dismissing the case. The plaintiffs have thirty days within which to file a Notice of Appeal to the Massachusetts Appeals Court. As always, please call if you have any questions. TJU/lunp Enclosure cc: Joyce Bradshaw (w/enc) Curt Bellavance (w/enc) Gerald Brown (w/enc) Judy Tymon (w/enc) .Iw,III-.I-vdowYomeylplanniryb,rE. ea rwmi .— Very truly yours, Thomas J. Vbelis Commonwealth of Massachusetts County of Essex The Superior Court CIVIL DOCKET# ESCV2012-01130 Andrew Fournier, Mark Depolito, Liz Fennessy, Dagmar Schnellinger, Laurette E. Wentworth and Marthea Fournier, Plaintiff(s) vs. John Simons, Michael Colantoni, Dave Kellogg and Richard Rowan in their official capacities as members of the Planning Board for the Town of North Andover, Trinitarian Congregational Church of North Andover and MetroPCS Massachusetts, LLC, Defendant(s) SUMMARY JUDGMENT M.R.C.P. 56 This action came on to be heard before the Court, Maynard Kirpalani , presiding, upon motion of the defendants, John Simons, Michael Colantoni, Dave Kellogg and Richard Rowan, in their official capacities as members of the Planning Board for the Town of North Andover and MetroPCS Massachusetts, LLC, for Summary Judgment pursuant to Mass. R. Civ. P. 56- the parties having been heard - and the Court having considered the pleadings -depositions -answers to interrogatories -admissions- and affidavits, the Court having rendered a " MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT" dated July 25, 2013, having found that there is no genuine issue as to material fact and that the defendants are entitled to a judgment as a matter of law, It is ORDERED and ADJUDGED: That the Complaint of the Plaintiffs, Andrew Fournier, Mark Depolito, Liz Fennessy, Dagmar Schnellinger, Laurette E. Wentworth and Marthea Fournier, be and hereby is DISMISSED against the Defendants, John Simons, Michael Colantoni, Dave Kellogg and Richard Rowan in their official capacities as members of the Planning Board for the Town of North Andover and MetroPCS Massachusetts, LLC. Dated at Newburyport, Massachusetts this 7'" day of August, 2013. E, -C:. .. ..... .. As tant Clerk CVG]ud3filr� 1198353 mem[G tloylejoE RAP V COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT CIVIL ACTION NO. 1241130 N ANDREW FOURNIER &others' — - _ v c Vs. - N JOHN SIMONS, in his official capacity,' & others' - c� MEMORANDUM OF DECISION AND ORDER ON o DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT ^' The plaintiffs Andrew Fournier, Mark Depolito, Liz Fennessy, Dagmar Schnellinger, Lauretta E. Wentworth, and Marthea Fournier (collectively, "Plaintiffs'), residents of the Town of North Andover ("Town"), commenced this action under G.L. c. 40A, § 17, to challenge the decision of the Town's Planning Board to renew the Wireless Special Permit of defendant MetroPCS Massachusetts, LLC ("MetroPCS"). The Wireless Special Permit allows MetroPCS to install antennas inside the steeple of the defendant Trinitarian Congregational Church of North Andover ("Church"); the antennas are not visible from outside of the Church. This case is before the court on the Planning Board's and MetroPCS' motions for summary judgment. The Plaintiffs did not file a written opposition but appeared at oral argument to oppose the two motions. For the following reasons, the Planning Board's and MetroPCS' motions for summary judgment are ALLOWED. 'Mark Depolito, Liz Fennessy, Dagmar Schnellinger, Lauretta E. Wentworth, and Marthea Fournier 'As a member of the Planning Board of the Town of North Andover, Massachusetts 'Michael Colantoni, Dave Kellogg, and Richard Rowen, in their official capacities as members of the Planning Board of the Town of North Andover, Massachusetts; Trinitarian Congregational Church of North Andover; and MetroPCS Massachusetts, LLC the [C]hurch building, within the Residential 4 District." Id. In a decision dated March 3, 2009, and entered in the Town Clerk's Office on March 5, 2009, the Planning Board approved the Wireless Special Permit ("2009 Board Decision"). Id. In the 2009 Board Decision, the Planning Board found that MetroPCS had satisfied its filing requirements and met its burden under Zoning Bylaw, § 8.9,' of demonstrating that a significant gap in coverage existed and that no alternative sites were available or technically feasible to close that gap. Id. The Planning Board approved MetroPCS's petition subject to a series of conditions.' Five Town residents appealed the 2009 Board Decision by seeking judicial review in the Superior Court under G.L. c. 40A, § 17 ("2009 Action"). The Town residents were Marlhea Fournier, Lizetta Fennessy, Aaron Pertus, Dagmar Schnellinger, and Lauretta Wentworth ("2009 Plaintiffs"). The 2009 Plaintiffs named as defendants the same Defendants as in this current action, i.e., the Planning Board,' the Church, and MetroPCS, and asserted sixteen claims. The Defendants moved for summary judgment which this court (Murtagh, J.) allowed in a decision dated December 18, 2009 ("2009 Court Decision"). In the 2009 Court Decision, the court noted that the 2009 Plaintiffs asserted "nothing other than the minimum of 600 feet zoning setback provision [set forth in zoning Bylaw, § 8.9.3(c)(v)(1)] requires a variance before a permit for the installation can issue" and `khat they 'The Town's Zoning Bylaws are available at www.townofnorthandover.com/pages/nandoverna_zba/zoningbylaw.pdf (last visited July 22, 2013). Section 8.9, the bylaw governing Wireless Services Facilities, appears at pages 94 through 105 of that document. 'For the most part, the list of sixteen conditions restate the provisions of § 8.9 of the Zoning Bylaw. 'Some of the members of the Planning Board have changed since the 2009 Action The 2009 Plaintiffs appealed the 2009 Court Decision to the Appeals Court;' MetroPCS filed a cross appeal on the basis that the 2009 Court Decision failed to address its claim that the 2009 Plaintiffs lacked standing. In a decision dated February 11, 2011, the Appeals Court affirmed the 2009 Court Decision. Fourier v. Planning Board of N Andover, 78 Mass. App. Ct. 1125, 2011 WL 382988, * 1 (2011). The Appeals Court held that "sole basis asserted for [the 2009 Plaintiffs'] purported standing was that the town by-law should be deemed to apply to all wireless facilities, and that, rather than the special permit granted, the by-law required that a variance be sought." Id. This argument was "an insufficient basis to confer standing on the [2009] plaintiffs as aggrieved parties[,]" id. and the court held that `the [2009] plaintiffs' appeal was foreclosed by lack of standing." Id. at * 1 n.4. The Appeals Court further held that, "[g]iven [its] determination that the [2009] plaintiffs lack standing, [the court] [did not need to] ... reach the variance versus special permit question." Id. at * 1 n.5. "[Elven if one were to construe the applicable by-law as requiring a variance, [however,] the [D]efendams ultimately would still be entitled to install the wireless device and antenna under the Federal Telecommunications Act of 1996,47 U.S C. § 332(c)(7)(B). The [2009] plaintiffs [did] not mount any serious challenge to that conclusion." Id. (citation omitted). `The 2009 Plaintiffs also appealed a Land Court decision;. the Appeals Court considered the two appeals together even though they were not formally consolidated. Fournier v. Plannine Board of N. Andover78 Mass. App. Ct. 1125, 2011 WL 382988, *1 (2011). The Land Court decision appears to have concerned the zoning board of appeals' issuance of abuilding permit to MetroPCS to install the antenna in the Church. Id. at *2; see MetroPCS Mass.. LLC V. Fennessev [sic], 09 MISC 413762 (Mass. Land Court Dec. 29, 2009) (Piper, J.). According to theAppealsCourt, "[t]he zoning board of appeals .....determined that the special permit was proper in that the wireless tower installation posed no public safety issues, and that the setback limits required by a zoning by-law did not apply within the existing structure of the [C]hurch steeple." Fournier 2011 WL 382988, at *1. Emissions are within compliance with FCC guidelines "c) ... [T]he 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 Mown's requirements under section 8.9 of the [Town's] ... Bylaw. "d) The Federal Telecommunications Act of 1996 takes precedent over the [Town's] Zoning Bylaw. In the recent [2009 Court Decision] ..., the Plaintiffs' ... challenge to [the 2009 Board Decision] ... was on the basis of a 600 foot setback provision in the [Z]oning [B]ylaw, 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. "e) Finally the Planning Board finds that this project generally complies with the [Town's] ... Zoning Bylaw requirements as listed in 8.9 but requires conditions in order to be fully in compliance. The Planning Board hereby grants an approval to the applicant provided ... [certain] conditions are met[.]" 2012 Board Decision, at 2-3. The 2012 Board Decision lists six conditions that are similar to some of the conditions listed in the 2009 Board. Decision and essentially restate provisions of Zoning Bylaw, § 8.9. The Plaintiffs have appealed the 2012 Board Decision in this action currently before the court. In this complaint ("2012 Complaint"), the Plaintiffs are the 2009 Plaintiffs plus Andrew Fournier and Mark Depolito. Andrew Fournier has the same address as 2009 plaintiff Marthea Fournier, and Mark Depolito appears on the list of certified abutters and spoke at, at least, one judgment on the merits, therefore MetroPCS has met the first element of both doctrines. The Plaintiffs argue that MetroPCS cannot satisfy the second element of the doctrines, despite the fact that the 2009 Plaintiffs appear in the current action, because of the addition of two new plaintiffs m the current action. Andrew Fournier has the same address as 2009 plaintiff Marthea Fournier; Mark Depolito is an abutter and participated in at least one public hearing on the original special permit application. For purposes of this decision, the court concludes that the 2009 Plaintiffs represented their interests in the 2009 Action; and, therefore, that the two new plaintiffs are in privity with the 2009 Plaintiffs. MetroPCS cannot satisfy the remaining elements of clam preclusion and issue preclusion. The 2009 Action was an appeal of the Planning Board's original grant of a wireless special permit; this action is an appeal of the Planning Board's grant of a renewal of MetroPCS' Wireless Special Permit. The two matters are therefore not identical. See, e.g., Restatement (Second) of Judgments § 24, illus. 9 ("A pays state income taxes for the years 1.973 and 1974 and state property tax for the year 1973. Each of these annual taxes is considered separate ...."). The language of Zoning Bylaw, § 8.9.12(a) suggests that the Town intended for each renewal application to constitute a separate transaction. Under that provision, a special permit "may be renewed under the same criteria as the original special permit," thereby requiring the permit - holder to participate in the application process anew. Zoning Bylaw, § 8.9.12(a). Moreover, precluding purportedly aggrieved parties from seeking judicial review of a special pematrenewal would render G.L. c. 40A, § 17, meaningless. The Defendants therefore cannot invoke res judicata in this case. This conclusion is not dispositive of the matter, however, because, as discussed below, the Plaintiffs' appeal of the 2012 (alteration in original) (citation omitted); see G.L. c. 40A, § 17 (setting out requirements for contents of complaint). This review "involves a `peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y.. hic., 454 Mass. at 381.. Specifically, "a judge is to give `no evidentiary weight' to the board's factual findings," but at the same time, "ajudge must give `substantial deference' to a board's interpretation of its zoning bylaws and ordinances.... [and] the decision of a board `cannot be disturbed unless it is based on a legally untenable. ground' or is based on an `unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Id. at 381-382 (citations omitted). A court that "decides the case on motions for summary judgment engages in no fact finding at all. Instead, the [court] looks at the record to determine whether there is any genuine issue of material fact and, if not, whether the evidence, viewed in the light most favorable to the nonmoving party, shows that the moving party is entitled to judgment as a matter of law." Albahari v. Zonin¢ Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248-249 (2010) (footnote omitted). As noted above, there are no facts in dispute because the court has deemed the facts as -.. admitted.12 "In addition to failing to demonstrate a genuine issue of material fact, it is questionable that the Plaintiffs sustained their burden of setting forth "a short and plain statement of the claim showing that [they] [are] entitled to relief' with respect to certain claims. Mass. R Civ. P. 8(a)(1); see Ashcroft v. Iqbal. 556 U.S. 662, 677-678 (2009) (holding that, to survive motion to dismiss, plaintiff s complaint must plausibly suggest entitlement to relief); Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). 11 2. Setback The Plaintiffs argue that the 2012 Board Decision failed to take into consideration the 600 -foot setback requirement in Zoning Bylaw, § 8.9.3.(c)(v)(1). That provision states: "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 setback 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 education uses of any types." Zoning Bylaw, § 8.9.3(c)(v)(1) (emphasis added). The Plaintiffs contend that the Planning Board should have required MetroPCS to obtain a variance from this setback requirement." The reference to the "`fall zone"' in the above -italicized sentence is significant as it suggests that the purpose of the setback is to protect individuals and properly from falling wireless devices, antennas, and mounting structures. Placing those items inside a building, however, eliminates that danger. The 600 -foot setback requirement cannot reasonably apply to MetroPCS' antennas, and therefore it is not arbitrary, capricious, or legally untenable for the Planning Board not to have required MetroPCS to obtain a variance from the 600 -foot setback requirement. See Wendy's Old Fashioned Hamburgers of N.Y.. Inc.. 454 Mass. at 381-382. The Plaintiffs' challenge of the 2012 Board Decision on this basis therefore fails. 3. Plaintiffs' Remaining Claims The remaining allegations in the Plaintiffs' complaint fail as well. First, there is no basis "There is no evidence in the summary judgment record that the antennas inside the Church steeple are fewer than 600 feet from the adjacent property line, but the parties do not appear to dispute this fact. 13 contend that the Planning Board failed to comply with its duty under Zoning Bylaw, § 8.9.12(a), to apply "the same criteria as the original special permit" when considering whether to renew a wireless special permit. The summary judgment record does not support this allegation. See sunm n.12. Fourth, the Plaintiffs make the conclusory claim that the presence of MetroPCS' Wireless Services Facility has had a deleterious impact on the value of their properties. The express purpose of Zoning Bylaw, § 8.9, governing wireless service facilities, is "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." Zoning Bylaw, § 8.9.1(a). To achieve that purpose, "[n]o wireless service facility shall be placed, constructed or modified within the Town without first obtaining site plan approval from" the Planning Board. Id. Compliance with Zoning Bylaw, § 8.9, therefore preserves the value of the property located in the Town. As MetroPCS complied with the Zoning Bylaw, the Plaintiffs cannot claim that their properties have decreased in value." Fifth, the Plaintiffs claim that the antennas in the Church steeple constitutes a nuisance because it exposes the Plaintiffs to health risks, fear, anxiety, and anguish. The Plaintiffs have not identified the particular health risks towhichthey fear they have been exposed as a result of the presence of the antennas on the Church steeple, despite the fact that the antennas have been in "As this appeal concerns the renewal of MetroPCS' Wireless Special Permit, the Plaintiffs have had three years in which to document the alleged decrease in the value of their properties as a result of the presence of the antennas in the Church steeple. 15 480 (1999). "To facilitate the spread of this technology, and to promote transparency and accountability in local zoning decisions regarding permits for [wireless service] providers, the [Act] imposes procedural and substantive obligations on local zoning authorities." ]d. at 480, citing 47 U.S.C. § 332(c)(7). A local authority's denial of a request "to site such a [wireless service] facility must be `in writing and supported by substantial evidence contained in a written record."' Id. at 482, quoting 47 U.S.C. § 332(c)(7)(B)(iii); Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 196 n.12 (2005) (noting that Act "prohibits municipalities from denying permission to construct wireless service facilities unless the denial is in writing and supported by substantial evidence'; see Sangiolo v. Board of Aldermen of Newton. 57 Mass. App. Ct. 911, 914 (2003) (Rescript) (holding that, where "die permit reflects an appropriate exercise of local government's statutory power over `decisions regarding the placement, construction, and modification of personal wireless service facilities[,]... the Act precludes denial of the application (quoting 47 U.S.C. § 332(c)(7)(A))). "Congress enacted these standards to prevent local authorities from `mask[ing] hostility to wireless communications facilities with unreasoned denials that make only vague references to applicable legal standards."' Roberts, 429 Mass. at 491 (alteration in original) (citation omitted). The Act "does not preempt State and local authority with respect to any zoning and land uses pertaining to [wireless service] facilities, other than as delineated in [47 U.S.C.] § 332(c)(7)" and it does not preempt "de novo judicial review of all local zoning authority decisions pursuant to G.L. c. 40A, § 17." Id. at 482. The Act does, however, prevent state and local governments from "regulat[ing] the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions 17 affected them, they may petition the FCC for relief. See 47 U.S.C. § 332(c)(7)(B)(v). OIRDER For the foregoing reasons, the Defendants' motions for summary judgment are ALLOWED. Date: July 25, 2013 19 o MORIN, O • o O R;'==,<+�+'�• Town of North Andover Office of the Planning Department Commmity Development and Services Division P (978) 688-9535 1600 Osgood Street F (978) 688-9542 Building 20, Suite 2-36 North Andover, Massachusetts 01845 RECEIVED TOWN CLERK'S OFFICE 1012 FEB 21 PM 2145 TOWN OF NORTH ANDOVER MASSACHUSETTS Town of North Andover Planning Board Application for Special Permit 7 Please type or print clearly. 1.Petitioner: Metro PCS Massachusetts LLC do New England Wireless Solutions, LLC PetiOoner'sAddress: 17 Indian Trail York ME 03909 Telephone number: 207363-0006 2. owners of the Land: Trinitarian Congregational Church of North Andover Address: 70 Elm Street North Andover MA 01845 Number of years of ownership: 3. Year lot was created: 4. Description of Proposed Project: MptrnPCS is requesting a Renewal nfit Wireless Special Permit unanimously appmd March 19nnq,and manded' the Essex North Egaistry of Dppdq 0 - 11595 P---, 299 I =t#9a0T S. Description of Premises: Existing MetroPCS Wireless Telecommunications Facility fully concealed within the Trinitarian Congregational Church. 6. Address of Property Being Affected: 70 Elm Street Zoning District: R 4 Assessors Map: 42 Lot#: 2 Registry of Deeds: Book #: 1076 Page #: 297 7. Existing Lot LotArea(Sq.Ft): 45,600 Building Height: 150' StmtFromage: 172' Side Setbacks: 69' 73 Front Setback: ' Rear Setback: 200' Floor Area Ratio: Lot Coverage: 6. Proposed Lot (if applicable): Lot Area (Sq. Ft): WA Building Height: Street Frontage: Side Setbacks: BOARD OF APPEALS 6889541 BURDW0688-9545 CONSERVATION MM530 NEAI.TH 688-9540 PLANNING68"535 Front Setback: Rear Setback: Floor Area Ratio: Lot Coverage: 9. Required Lot las required by Zoning Bylaw): Lot Area (Sq. Ft): 12 500 Street Frontage: 100' Front Setback: 30' Floor Area Ratio: 10. Existing Building (if applicable): GfoundFloogSq.Ft): NIA TotalSq.FL: Use: 11. Proposed Building: GroundFloor(Sq.Ft): no change TotalSq.FL Use: Building Height: Side Setbacks: 15' Rear Setback: 30' Lot Coverage: # of Floors: Height: Type of Construction: # of Floors: Height: Type of Construction: 12. Has there been a previous application for a Special Permit from the Planning Board on these premises? Yes MetroPCS Special Permit Attached N so, when and for what type of construction? Wireless Telecommunications Facilities 13. Section of Zoning Bylaw that Special Permit 1s Being 14. Petitioner and Landowner signatum(s): Every application for a Special Permit shall be made m Ihis tong which is the o0"iciel form of Ne Plaming Board. Every Vir icatim shall be filed with the Town Clark's office. It shall bathe responsibility of the pgnianer m famish all supporting documantatim with this application. The dated copy ofilds application r wcxl by &a Torn Clark m Manning Office does ml absolve the applicant fmm this resporeibility. The pefifima shall be responsible for all expaaaa for filing aW legal mtilkatim. Failure b comply with WpRmfim requirmimts, a cited herein as] m die Planning Bond Rales ars] RegWffians may teesWl in a dismissal by the Planning Road of this applimtim u itrcmipl`�j rn/� nn q Petitioner's Signature: � Print or type name he 111 k uAJ1r Owner's Signature: Sea Attached Lease Print or type name here: 15. Please list title of plans and documenmyou will be attaching to this application. Plans entitled "MetroPCS BOS0380C Trinitarian Congregational Church" RF Compliance Report "MetroPCS BOS0380C 70 Elm Street North Andover MA" Post Construction Noise Survey "MetroPCS BOS0380C 70 Elm Street North Andover. MA" Structural Analvsis "MetroPCS BOS0380C 70 Elm Street North Andover MA" Wireless Special Permit Approved March 3.2009 Redacted Lease A14W..' 1 sauddi r) C -..es.., rx J 2m.9 r 1 n,.,..... .. _.. - __ sem-- vm MAP PAR NL 42 2 Trinitarian Cmgreg8bwal Cl AOulhrs kora PmoetOu Pa., And. 41 2.59 Gary ROEged 41 2.51 Coal Pvw 41 2.61A Continental Pa= 41 9 Breen Mamvid Funmal Hama tlC 41 1113&34 HamIJ Ml 41 12 JA. Vamps 41 14 John Cars, 41 15 Relad Geeing 41 12 J.R. Vemile 41 22 Carl Paadis 41 23 John Sha3oury 41 35.21 Ryan Nowtan 41 39.23 JMn Cumin 41 40 Muslim Kollm 41 41 Jame. SmeEna 41 43 Call Cole 41 41 Jams Shuman 41 44 Sh"Pa. 41 .49 Meek Slael 41 45.52 Taneremse Pwbeha 42 1.1 Plints Samp.m 42 1.2 Lm Gardner 42 13 KaNbm C—in 42 3 &Ian Repasm 42 43M Enc RcMrd 42 43213 Mand Mowll 42 4.M John YMttlk Rm 42 5 Richard! RMmond 42 6 - TrinlMnan Cmgasatadd ChurtA 42 T Marilyn McPhee 42 Baas Bran Ccdeu 42 9 John Mors. 42 10 Chale. Ellin. 42 12 ChnalphwtmNOP 42 13 Aarw Patty 42 14 Dal HIM 42 15B Bnm GaWne 42 15.F MidvM Rehm 42 18 A tT Wraw Sievma 42 A Donald Ellet 42 21 Bryan Kiey 42 22 CnnslaNlm 42 MOA Oilal 54 2 2 SDG Mutu..ur INV SVC: eM: Glasser 54 3 Sharon Lae 54 4 Redmond Msis 55 1asD gall 55 5 Tia rima 55 T FiR, Fant FuFIe Realty 55 B Jams Funned, Jams 55 9 Gema. m ea5 18 B.M.Brz. Md t 55 20 wa. EdSdmar 55 21 Gary WanM* 55 Coany Real ESeatsmp 55 35 M a Jweph Mayr J.,h Must,� 70 Elm Street Mass. 59 Chu" Street 61 ch.. Street 91 Chumth Street 35.37 Mel Street WWaler Sheet 69 WMer Sltcel 84 Regent Auenue 17 Merml Stied 84 Valued, Street U Sudden Street PO Baa 4 21 Memm l Sbeat 23 Mertiums SOaet 58 Chunfl Slreel 0 Gnead Shad 531 BOMwE Roe] 85 Gwen Street 54 Ch.. Street 49 ChuM Slee 51 Chuli sheet 88 Elm 3hs1 Yi 80 Elm Stress 02 80 Elm Street C3 42-44 Chu" Steed 32 Chu. Street YA 32 ChmN sant YB M ChuM Side 30 Chl Saeed M Elm Streit 242 Mein Stated! 9 Gdal Stress 2335 Gorden Saeed 12 Garden S. 27 ChuM SIwN 62 Elm Streit W Elm Street 545 Elm Street ME Elm Soret 46 Elm Sall 265 Main Street 54 Brno l Rodd 45 Elm Street 9 Pleasant Slwd 10 W. Manned Street. Sued 12M 52 Walker Road 526 Olmon Street 48 Cowl Sheet 55 Elm Street 71 Chuserin9 Road 77 Elm St. 83 Elm Street 59 Elm Street 2301 Means Lane 15 pl-amet Street 91 Harmmead S9ee1 20 Pleas. Saeed NOM Anal MA 01845 NoM AMrnm+, MA 01895 North MEova, AM 01095 Nwlh Mddhm , MA 01845 Norah Ammar, MA 01845 NoM Md.,, MA DIM Hal t 01e32 North M loner, MA 01845 NwN Andover, MA D1845 NOM Mull MA 01545 Would. MA OMB WMA'alm"MA 01045 NOM "ma, MA 01845 North Mama, MA 01845 NoM MOwm. MA 01845 Hawmgl, MA .1832 IbM Ndmmr.MA 01845 NOM Mdmd, M4 01845 NOM MEorer. M4 D180.5 NCM Md. IM 01043 Noll Md. MA 01845 Norm Mdisr,W 01845 NOM Md., M4 01845 NwN Anel., MA DIM Nath Md., MA 01845 NoM Mdmer, MA D1845 NOM Amil MA 01845 NOM Mtl.' MA 01845 NOM Md., MA 01095 NOM Arxi., M4 01815 NOM Axims, MA 01815 NoM Md. MA 01815 NoM Mdover. MA 01015 North Andl MA 01845 NwM Md.,, MA 01845 NwM Md., MA 01845 Nunn Mdme, IM 01.5 NOM Mdovar, MA 0180.5 NoM Md—,, MA 0100.5 N" Md.,, MA 01845 Mdomr, MA 01810 NaN MM.. MA 01845 North Md., M4 01845 Indianapolis, W 452w Atkins., NH =11 Norm Mdmr, MA DIM Norm MWsx, MA 01815 With Md.,, MA 01845 N.". MA 01845 NoRh Amt, MA 01845 North M., M4 01845 Norm Md.v., MA 01845 NOM Mdwer, MA 01845 NOM M lone MA 91845 Mentum; MA 01844 North MEovw,MA 01845 This certifies that the names appearing on the records of the Assess fice as of Certified b , Date New England Wireless Solutions, lic February 2, 2012 Assessor Manager Board of Assessors Town of North Andover 120 Main Street North Andover, MA 01845 Re: Request for Certification of Abutters List for a Wireless Service Facility Special Permit Renewal located at 70 Elm Street (Trinitarian Congregational Church), North Andover, MA (Town of North Andover Man 42 Lot 2) Property Address: 70 Elm Street North Andover, MA (the "Property') Applicant: MetroPCS Massachusetts, LLC ("MetmPCS') BOS0380_C Dear Assessor: As agent for and on behalf of MetmPCS Massachusetts, LLC ("MetroPCS') the "Applicant" we respectfully submit the enclosed check number 2450 in the amount of $25.00 to cover the costs incurred by the Town of North Andover to prepare a Certified Abutters List for 70 Elm Street (Map: 42 Lot: 2). Please send me a copy of the Certified Abutters List when completed. Please feel free to contact me regarding any questions concerning the request at 207-363- 0006 or 207-837-0127. V�yy1i Bi .wade New England Wireless Solutions Agent for MetroPCS BOS0380_C Enclosure: Check # 2450 17 Indian Trail York, ME 03909 (207) 363-0006 ROOF -TOP COMMUNICATIONS SITE LEASE AGREEMENT THIS ROOF -TOP COMMUNICATIONS SITE LEASE AGREEMENT ("Lease Agreemenfl dated as of is made by and between MetroPCS Massachusetts, LLC, a Delaware limited liability company CLessco and Trinitarian Congregational Church of North Andover ("Lessor"). RECITALS This Lease Agreement is entered into based upon the following facts, circumstances and understandings: 'A. Lessor owns certain real property located in Map, 42, , Lot 6 , located in the City of North Andover, County of Essex, State of Massachusetts and having an address of 70 Elm Street ("Lessor's Real Property'). Lessee desires to lease a portion of space on and within the building (the "Building'] located within Lessor's Real Property for the placement of a wireless communications site, together with any necessary easements over portions of Lessor's Real Property and the Building and/or shared use of Lessor's easements over other real property necessary for Lessee's access and utilities to the leased area (altogether the "Premises'), as described and/or depicted on Exhibit "A" attached hereto. Lessor represents and warrants that it has the right to grant the rights set forth herein and that it has full rights of ingress to and egress from the Premises from a public roadway. B. Lessee desires to construct and operate a wireless communications site at the Premises as part of its communications network- C. etworkC. Based on the Premises set forth herein and on the terms and conditions set forth below, Lessor is willing to lease the Premises to Lessee for Lessee's proposed use subject to the terms and conditions of this Lease Agreement. WHEREFORE, in consideration of the Premises set forth above and the terms and conditions set forth herein, the parties, intending to be legally bound, hereto agree as follows: 1. Grant of Lease. Lessor hereby leases to Lessee the Premises for Lessee's proposed use, subject to the following terms and conditions for the Term. 2. Permitted Uses. The Premises may be used by Lessee for the operationof a wireless communications site. Under this Lease Agreement, Lessee may install, place, alter, upgrade, repair, replace and maintain on the Premises such antennas, radio transmitting and receiving equipment, conduits, wires, batteries, back-up generators, utility lines and facilities, supporting structures, storage facilities, telephone facilites, microwave equipment, and related equipment (collectively "Lessee's Facilities") as Lessee deems necessary for the operation of its wireless communications site at the Premises or as required by any county, state or federal agency or department, as long as such actions do not unreasonably interfere with Lessor's own use. of the Premises. Further, Lessee may perform construction, alterations, upgrades, maintenance, repairs, additions to, and replacement of Lessee's Facilities as necessary and appropriate for its ongoing business and has the right to do all work necessary to prepare, modify and maintain the Building or the Premises to accommodate Lessee's Facilities and as Site No.: BOS0380C Page 1 of 17 Site Address: 70 Elm Street, North Andover, MA required for Lessee's communications operations at the Premises, so long as any such activities do not unreasonably interfere with Lessor's own use of the Premises. Lessor shall have the right to reasonably restrict any construction, alteration, upgrade, maintenance, repair, addition to or replacement of Lessee's Facilities if, in the reasonable opinion of the Lessor, such actions would unreasonably interfere with Lessor's use of the Premises. Nothing contained in this Agreement shall be deemed to prohibit or restrict in any manner Lessor's unfettered right to grant additional leases or other permitted rights to others to operate a wireless communication site on the Premises, subject to the terms of this Agreement including, but not limited to, Section 11. 3. Conditions Precedent: Prior Approvals. This Lease Agreement is conditioned upon Lessee obtaining all governmental licenses, permits and approvals enabling Lessee to construct and operate wireless communications facilities at the Building and on the Premises without conditions which are not standard or typical for premises where wireless communications facilities are located. Lessor agrees to cooperate with Lessee's requests for Lessor's signatures as real property owner on permit applications, for allowing site inspections by governmental agencies required in connection with reviewing permit applications, and for assistance in obtaining such necessary approvals, provided that such cooperation and assistance shall be at no expense to Lessor. 4. Term. The term of this Lease Agreement ("1'erm') shall be five (5) years commencing 60 days from issuance of a building permit. ("Commencement Date"). Lessee shall have the right to extend the Term of this Lease Agreement for four (4) additional terms (each a "Renewal Terni') of five (5) years each. The terms and conditions for each Renewal Term shall be the same terms and conditions as in this Lease Agreement, except that the Rent shall be increased as set forth hereinbelow. This Lease Agreement shall automatically be extended for each successive five (5) year Renewal Term unless Lessee notifies Lessor in writing of Lessee's intention not to extend this Lease Agreement at least thirty (30) days prior to the expiration of the fust Term or any Renewal Term. Lessor shall have the right to not permit a renewal of this Agreement, if the operation of Lessee's Facilities unreasonably interferes with Lessor's use of the Premises, which Lessee is unable to remedy as provided for herein. If Lessor fails to grant any renewal it most notify Lessee in writing of such intention at least thirty (30) days prior to the expiration of the first Term or any Renewal Term. 5. ' Rent. Within thirty (30) days of the Commencement Date, Lessee shall pay Lessor, as rent, the sumo Rent shall be payable on the fust day of each month, in advance, to Lessor or Lessor's alternate payee specified in Section 23, Notices and Deliveries. If the Commencement Date of this Lease Agreement is other than the first day of a calendar month, Lessee shall prorate Rent for the remainder of the calendar month in which the Term commences and include such partial Rear payment with the Rent due for the succeeding month's Rent, thereafter Lessee shall pay full month's Rent on the fust day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease Agreement, or if this Lease Agreement is terminated before the expiration of any month for which Rent should have been paid. During the Initial Term and any Renewal Terris, monthly Rent shall be adjusted annually, effective on the anniversary of the Commencement Date by JMr4dIW*pwIW of the monthly Rent in effect immediately prior to the adjustment date. 6. Due DiReence Continency and Pre-Commencement Date Access to Premises. Lessee shall have the right at any time following the full execution of this Lease Agreement and prior to the Commencement Date, to enter the Premises for the purpose of making necessary inspections, taking measurements and conducting engineering surveys (and soil tests where applicable) and other reasonably necessary tests to determine the suitability of the Premises for Lessee's Facilities ("Due Diligence"), and Site No.: BOS0380C Page 2 of 17 Site Address: 70 Elm Street, North Andover, MA for the purpose of preparing the Premises for the installation or construction of Lessee's Facilities. During any Due Diligence activities or pre -construction work, Lessee shall have insurance which covers such activities as set forth in Section16, Insurmce. Lessee will notify Lessor of any proposed tests, measurements or pre -construction work and will coordinate the scheduling of such activities with Lessor. If in the course of its Due Diligence Lessee determines that the Premises are unsuitable for Lessee's contemplated use, then Lessee shall have the right to terminate this Lease Agreement prior to the Commencement Date by delivery of written notice thereof to Lessor as set forth in Section 13, Termination. 7. Ongoing Access to Premises. Throughout the Term and any Renewal Term of this Lease Agreement, Lessee shall have the right of access to the Premises for its employees and agents at no additional charge to Lessee. For any non -emergency situation, Lessee shall have the right to access the Premises at my reasonable time and for any reasonable duration if Lessee gives Lessor twenty-four (24) how advance notice. Lessee shall have right of access at my time in any emergency situation, with notice to be given to Lessor as soon as practicable. In exercising its right of access to the Premises herein, Lessee agrees to cooperate with any reasonable security procedures utilized by Lessor at Lessor's Real Property and further agrees not to unduly disturb or interfere with the business or other activities of Lessor or of other tenants or occupants of Lessor's Real Property. Lessor shall maintain all existing access roadways or driveways extending from the nearest public roadway to the Premises in a manner sufficient to allow for Lessee's access to the Premises. Lessor shall be responsible for maintaining and repairing such roadways and driveways at Lessor's sole expense, except for any damage caused by Lessee's use of such roadways or driveways. If Lessee causes any such damage, Lessee shall promptly repair the same at its sole expense. Lessor, not Lessee, shall be responsible for the maintenance and compliance with laws of the Building and the roof top, including, but not limited my Federal Commmications Commissions' ("FCC") Rules relating to the lighting and marking of the Building. In the event that Lessee's use of the Premises results in my increase in Lessor's obligation to comply with applicable laws relating to marking and lighting of the Building, Lessee shall be responsible for those additional costs, 8. Lessee's Work Maintenance and Repairer. All of Lessee's construction and installation work at the Premises shall be performed at Lessee's sole cost and expense and in a good and workmanlike manner. Lessee shall submit copies of the site plan and specifications to the Lessor for prior approval, which approval will not be unreasonably withheld, conditioned or delayed. Lessor shall give much approval ol"provide Lessee with its"ftiests" foichanges'Miliid twenty (20) business days of Lessor's receipt of Lessee's plans. If Lessor does not provide such approval or request for changes within such twenty (20) business day period, Lessor shall be deemed to have approved the plans. Lessor shall not be entitled to receive my additional consideration in exchange for giving its approval of Lessee's plans, Lessee shall maintain Lessee's Facilities and the Premises in neat and safe condition in compliance with all applicable codes and governmental regulations. Lessee shall not be required to make my repairs to the Premises except for damages to the Premises caused by Lessee, its employees, agents, contractors or subcontractors, or wising out of the Lessee's use of the Premises. 9. Title to Lessee's Facilities. Title to Lessee's Facilities and my equipment placed on the Premises by Lessee shall be held by Lessee. All of Lessee's Facilities shall remain the property of Lessee and are not fixtures. Lessor waives my and all lien rights it may have statutory or otherwise concerning the Lessee's Facilities. Lessee has the right to remove all or my portion of Lessee's Facilities at its sole expense on or before the expiration or termination of this Lease Agreement, provided that Lessee repairs my damage caused to the Premises or Lessor's Real Property by Lessee's removal. Lessor acknowledges that Lessee may enter into financing arrmgements including promissory notes and financial and security Site No.: BOS0380C - Page 3 0£ 17 Site Address: '70 Elm Street, North Andover, MA agreements for the financing of Lessee's Facilities (the "Collateral") with a third party financing entity and may in the future enter into additional financing arrangements with other financing entities. In connection therewith, Lessor consents to the installation of the Collateral to the extent that the Collateral is part of the approved Lessee's Facilities. 10. Utilities. Lessee shall have the right to install utilities, including, the installation of necessary conduit and sleeving from the roof of the Building to the point of connection within the Building, at Lessee's expense, and to improve the present utilities on or near the Premises (including, but not limited to the installation of emergency back-up power). Subject to Lessor's approval of the location, visual characteristics and effect of the utilities conduit and sleeving, which approval shall not be unreasonably withheld, conditioned, or delayed, Lessee shall have the right to place utilities on (or to bring utilities across) Lessor's Real Property in order to service the Premises and Lessee's Facilities. Upon Lessee's request, Lessor shall execute mutually agreeable recordable eascracm(s) evidencing this right. Lessee shall fully and promptly pay for all utilities furnished to the Premises for the use, operation and maintenance of Lessee's Facilities. Upon Lessee's request, Lessor shall allow Lessee to install sub - metering equipment on Lessor's existing utility service(s). Lessee agrees to install, at Lessee's cost, the required equipment, meters and connections and will reimburse Lessor for Lessee's use of utilities at a rate equal to Lessor's unit cost for the utilities. Lessee shall pay the cost of utility service provided to the Premises and attributable to Lessee's use. During the term of this Lease Agreement, at Lessor's request (which request shall not be more frequent than twice every twelve months), Lessee shall calculate the actual utilitycharge for the immediately preceding twelve (12) months based on the readings from the privately installed sub -meter at Lessor's property. If the actual utility charge varies from the estimated utility charges paid, the parties shall reconcile past payments of utility charges and adjust future estimates of the utility charge to reflect Lessee's actual wage. Lessor shall diligently comet any interruption or failure of utility service to the Building. Lessor shall have the right to evaluate, test, or examine the sub - metering equipment to ensure its accuracy, reliability or operability Lessor shall also have the right to evaluate, test a examine Lessee's Facilities, including but not limited to measuring RF signals and any other emissions. Not more than one time per calendar year, unless exceptional circumstances warrant otherwise, Lessor shall have the right to demand an independent evaluation and measurement of RF signals and other FCC -licensed emissions generated by the Lessor's PWS transmissions within a one -mile distance from Lessor's Premises, with all such costs and expenses of such evaluation and measurement to be home by Lessee. 11. Interference with Communications. Lessee's Facilities and operations shall not interfere with the communications configurations, frequencies or operating equipment which exist on Lessor's Real Property on the effective date of this Lease Agreement ("Pre-existing Communications'), and Lessee's Facilities and operations shall comply with all non-interference rules of the Federal Communications Commission ("FCC'). In the event that the Lessee's Facilities are shown to cause interference with Pre-existing Communications, Lessor shall provide written notice to Lessee of such interference and Lessee shall be responsible for powering down or shutting off Lessee's Facilities within twenty four (24) hours, provided that Lessee shall be responsible for correcting such interference within thirty (30) days, or a reasonable time thereafter, provided that Lessee has commenced a cure of such interference within the thirty (30) day period and such cure is capable of being completed within a reasonable time thereafter.. Lessor shall not, nor shall Lessor permit any other tenant or occupant of my portion of Lessor's Real Property to, engage in any activities or operations within Lessor's Real Property which interfere with the communications operations of Lessee described in Section 2, above. Nor shall Lessee engage in any activities or operations within the Premises or Lessor's Real Property which interfere with the communications operations of any other lessee of the Premises. Lessor agrees to make reasonable efforts to incorporate equivalent provisions regarding non-interference with Pre-existing Site No.: BOS0380C Page 4 of 17 Site Address: 70 Elm Street, North Andover, MA Communications into any subsequent leases, licenses or rental agreements with other persons or entities for any portions of Lessor's Real Property. 12. Taxes. Lessee shall pay personal property taxes assessed against Lessee's Facilities and all real property taxes and all other taxes, fees and assessments attributable to this Lease Agreement, and Lessor shall pay when due all real property taxes and all other taxes, fees and assessments attributable to the Premises. 13. Termination. This Lease Agreement may he terminated by Lessee effective immediately by delivery of written notice thereof to Lessor prior to the Commencement Date for any reason resulting from Lessee's Due Diligence, or if a title report obtained by Lessee for Lessor's Real Property shows any defects of title or any Gens or encumbrances which my materially affect Lessee's use of the Premises for Lessee's intended use, or for any other or no reason. This Lease may also be terminated on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant, condition, or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default; (ii) by Lessee if it does not obtain licenses, permits or other approvals necessary to the construction or operation of Lessee's Facilities ('Permits"), is unable to obtain such Permits without conditions which are not standard or typical far premises where wireless communications facilities are located or is unable to mai sin such licenses, permits or approvals despite reasonable efforts to do so; (iii) by Lessee if Lessee is unable to occupy or utilize the Premises due to Wiling or directive of the FCC or other governmental or regulatory agency, including, but not limited to, a take back of frequencies; (iv) by Lessee if Lessee determines, in its sole discretion, that the Premises are not appropriate for its operations for, environmental or, technological reason, including, without limitation, signal strength or interference; or (v) any other reason upon three (3) months prior written notice; or by Lessor if the operation of the Lessee's Facilities, unreasonably interferes with Lessor's use of the Premises, such unreasonable interference to be construed under the default provisions of this Agreement for reasons of notice. Upon the expiration, aancelhdion or termination of this Lease Agreement, Lessee shall, within thirty (30) days, remove its equipment from the Premises and surrender the Premises in good condition; however, Lessee shall not be required to remove any frames or supports for Lessee's Facilities or conduits which have been installed by Lessee unless specifically requested by Lessor. 14. Destruction of Premises: If the Premises, the Building or Lessor's Real Property is destroyed or damaged so as in Lessee's judgment to hinder its effective use of Lessor's Property for the ongoing operation of a wireless communications site, Lessee may elect to terminate this Lease Agreement as of the date of the damage or destraction by so notifying Lessor no more than thirty (30) days following the date of such damage or destruction. In the event that Lessee elects to terminate this Lease Agreement, all rights and obligations of the parties which do not survive the termination of this Lease Agreement shall cease as of the date of the damage or destruction. In the event that Lessee does not elect to terminate this Lease Agreement as provided for shove, Lessor shall use reasonable efforts to find an alternative location within the Property suitable for the placement of Lessee's Facilities or any temporary facilities of Lessee such that Lessee is able to utilize the Property as contemplated herein (the "Alternative Facilities'). During my period in which Lessee is unable to utilize the Premises as contemplated herein due to destruction or damage to the Premises not arising out of the Lessee's use of the Premises, Rent shall be reduced or abated in proportion to the actual reduction or abatement of use, until the Premises are restored. 15. Condemnation. If a condemning authority takes all of Lessor's Real Property, in a portion which in Lessee's reasonable opinion is sufficient to render the Premises unsuitable for Lessee's ongoing operation of a wireless communications site, then this Lease Agreement shall terminate as of the Site No.: 130S0380C Page 5 of 17 Site Address: 70 Elm Street, North Andover, MA date when possession is delivered to the condemning authority. In any condemnation proceeding each party shall be entitled to make a claim against the condemning authority for just compensation recoverable under applicable condemnation law. Sale of all or part of the Premises to a purchaser with the power of eminent domain in the face of the exercise of its power of eminent domain shall be treated as a taking by a condemning authority. 16. Insurance. Lessee shall maintain the following insurance: (1) Commercial General Liability with limits of One Million Dollars ($1,000,000.00) per occurrence, (2) Automobile Liability with a combined single limit of One Million Dollars ($1,000,000.00) per accident, (3) Workers Compensation as required by law, and (4) Employer's Liability with limits of One Million Dollars ($1,000,000.00) per occurrence. Lessor, at Lessor's sole cost and expense, shall procure and maintain on the Properly, bodily injury and property damage msmance with a combined single limit of at least One Million Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against liability of Lessor, its employees and agents arising out of or in connection with Lessor's use, occupancy and maintenance of the Property. Lessee shall name Lessor as an additional insured on the Lessee's policy. Each party shall provide to the other a certificate of insurance evidencing the coverage required by this paragraph within thirty (30) days of the Commencement Date. 17. Assignments or Transfers. Lessor may assign or transfer this Lease Agreement to any person or entity, provided that such assignee or transferee agrees in writing to fultill the duties and obligations of the Lessor in said Lease Agreement, including the obligation to respect Lessee's rights to nondisturbance and quiet enjoyment of the Premises during the remainder of the Term and any Renewal Term hereof. Lessee may assign or transfer this Lease Agreement without prior approval by Lessor to any of Lessee's partners, shareholders, members, subsidiaries, or affiliates, to any entity in which Lessee or any of its affiliates holds an ownership interest, to a person or entity acquiring by purchase, merger or operation of law a majority of the value of the assets of Lessee ("Permitted Assign") or to any entity whose business is the ownership of wireless communications facilities. Upon an assignment to a Permitted Assign, Lessee shall only be relieved of all future liabilities and obligations incurred hereunder by the permitted Assign, and Lessor shall look solely to the assignee for all future obligations hereunder. Except as otherwise provided for herein, Lessee shall not assign or transfer this Lease Agreement to any other person or entity without the prior written approval of Lessor, which approval shall not be unreasonably withheld, conditioned, m delayed. Notwithstanding anything to the contrary contained in this Agreement, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent, its interest in this Agreement many financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by loans, bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 18. Subleases. Lessee shall not have the right, without the Lessor's prior written consent, to license or sublease all or a portion of the Premises and the Lessee's Facilities to others whose business includes the provision of wireless communication services. Lessee's ficensee(s) and sublessee(s) shall be entitled to all rights of ingress and egress to the Premises and the right to install utilities on the Premises as if said licensee or sublessee were the Lessee under this Lease Agreement. 19. Nondisturbance and Ouiet Eniovment: Subordination: Estoppel Certificates. (a) Lessor covenants and warrants to Lessee that (i) it has good and unencumbered title to the Building and Lessor's Real Property free and clem of any liens or mortgages which will materially interfere with Lessee's rights to or use the Building or the Premises; (ii) that the execution and Site No.: BOS0380C Page 6 of 17 Site Address: 70 Elm Street, North Andover, NA performance of this Lease Agreement by Lessor will not violate any laws, ordinances, covenants, or the Provisions of any mortgage, lease, or other agreement binding on Lessor; and (iii) That so long as Lessee is not in default under this Lease Agreement, Lessee shall be entitled to quiet enjoyment of the Premises during the term of this Lease Agreement or any Renewal Term, and Lessee shall not be unreasonably disturbed in its occupancy and use of the Building or the Premises. (b) This Lease Agreement shall be subordinate to each and every deed of trust, mortgage or other security instrument which may now or hereafter affect Lessor's Real Property and to any renewals, extensions, supplements, amendments, modifications or replacements thereof in confirmation of such subordination, Lessor and Lessee shall execute and deliver promptly a mutually agreeable commercially reasonable certificate of subordination that the other may reasonably request, provided that such certificate acknowledges that this Lease Agreement remains in full force and effect, recognizes Lessee's right to quiet enjoyment of the Premises so long as Lcssee is not in default under this Lease Agreemeet, only contains true and accurate statements. If any mortgagee or lender succeeds to Lessor's interest in Lessor's Real Property through a foreclosure proceeding or by a deed in lieu of foreclosure, Lessee shall attom to and recognize such successor as Lessor under this Lease Agreement. (c) At any time upon not less than ten (10) days' prior written notice from the other, Lessor or Lessee shall execute, acknowledge and deliver to the other or any other party specified by the requesting party a statement in writing certifying that this Lease Agreement is in full force and. effect, if true, and the status of any continuing defaults under this Lease Agreement. 20. Indemnifications. (a) Lessee's Indemnity. Lessee hereby agrees to defend against, indemnify and hold Lessor and Lessor's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors harmless from and against any and all losses, claims, liabilities, damages, costs and expenses (including reasonable attorney's fees and costs) and injuries (including personal injuries or death) arising from or in connection with (i) Lessee's negligent acts or willful misconduct in the use, operation, maintenance or repair of Lessee's Facilities at the Premises or access over Lessor's Real Property or Lessee's shared use of Lessor's easements for access to the Premises; or (ii) a breach by Lessee of any obligation under this Lease Agreement, except those resulting from the negligence or willful misconduct of Lessor or Lessor's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors. (b) Lessor's Indemnity. Lessor hereby agrees to indemnify and hold Lessee and Lessee's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors harmless from and against any and all losses, claims, liabilities, damages, costs and expenses (including reasonable attorney's fees and costs) and injuries (including personal injuries or death) due to (i) Lessor's negligent acts in willful misconduct in the use, operation, maintenance or repair of the Building or improvements on Lessor's Real Property; (ii) a breach by Lessor of any material obligation under this Lease Agreement; (iii) any willfi l violation of governmental regulations by the Lessor relating to the Building and Lessor's Real Property, except those arising out of or in connection with. the negligence or willful misconduct of Lessee or Lessee's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors. (c) Survival of Indemnity Provisions. The indemnity provisions of this section shall survive the expiration, cancellation or expiration of this Lease Agreement and shall not extend to indirect, special, incidental or consequential damages, including, without limitation, loss of profits, Site No.: BOS0380C Page 7 of 17 Site Address: 70 Elm Street, North Andover, MA income or business opportunities to the indemnified party or anyone claiming through the indemnified party. 21. Hazardous Materials. Lessee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Lessor's Real Property in violation of my law or regulation. Lessor represents, warrants and agrees (1) that neither Lessor nor, to Lessor's knowledge, any third party has used, generated, stored or disposed oC or permitted the use, generation, storage or disposal of, any Hazardous Material (defined below) on, under, about or within Lessor's Real Property in violation of any law or regulation, and (2) that Lessor will not, and will not willfully permit any third party to use, generate, store or dispose of my Hazardous Material on, under, about or within Lessor's Real Property in violation of my law or regulation. Lessee shall not be responsible for handling removal, or treatment of my Hazardous Materials, hazardous substance or hazardous wastes which is present prior to the delivery of the Premises to Lessee, or which is brought onto the Lessor's Real Property by some party outside the control of Lessee and not arising out of the use of the Premises by the Lessee, and no costs incurred in connection with the clean-up, removal, or treatment of hazardous materials, hazardous substances or hazardous wastes shall be allocated to Lessee. Lessor and Lessee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities; claims and/or costs (including reasonable attorneys' fees and costs) arising from my breech of my representation, warranty or agreement contained in this paragraph. As used it this paragraph, "hazardous Material" shall mean petroleum or my petroleum product asbestos, my substance known by the state in which Lessor's Real Property is located to cause cancer and/or reproductive toxicity, mil/or my substance, chemical or waste that is identified as hazardous, toxic or dangerous in my applicable federal, state or local law or regulation. This paragraph shall survive the termination of this Agreement. _ 22. Riehl of First Refusal. If during the tern of this Agreement Lessor receives a written offer from an unaffiliated third party to purchase (in whole or in part) Lessor's interest under this Lease Agreement and Lessor's rights to receive rents under the term of this Agreement that Lessor is willing to accept (the "Purchase Offer'j, Lessee shall have the right of first refusal ("Right of First Refusal') to so lease or purchase the same: Lessor shall provide Lessee with a written copy of the Purchase Offer, and Lessee shall have not less than fifteen (15) days following its receipt thereof to notify Lessor in writing as to whether it wishes to exercise its Right of First Refusal with respect thereto. If Lessee fails to exercise its Right of First Refusal, then such Right of First Refusal shall lapse with respect to the Purchase Offer (but not with respect to my subsequent Purchase Offers if Lessor fails to sell to the third party pursuant to the exact terns of the Purchase Offer within one hundred eighty (180) days of the date of Lessee's waiver of such Right of First Refusal). The parties agree and acknowledge that the Right of First Refusal set forth in this paragraph shall not apply to offers pertaining to the sale of the entire Property and/or property adjacent thereto owned by Lessor. 23. Node" and DeRvertes. Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or rationally recognized overnight delivery service to the address of the respective parties set forth below: Lessor: Trinitarian Congregational Church of North Andover 72 Elm Street - - North Andover, MA 01845 Attn: Bill Pickles Telephone: 978-685-3765 or 978-697-9254 Site No.: BO$0380C Page 8 of 17 Site Address: 70 Elm Street, North Andover, MA Facsimile: N/A Federal Taxpayer ID Number: Lessee: MetroPCS Massachusetts, LLC o%MetroPCS, Inc. 2250 Lakeside Blvd Richardson, TX 750824303 Attn: Property Manager Telephone: 214-265-2550 Facsimile: 214-265-2570 With a copy to: MetroPCS Massachusetts, LLC 285 Billerica Road Chelmsford, MA 01824 Attention: Property Manager Lessor a Lessee may from time to time designate any other address for notices or deliveries by written notice to the other party. 24. - Miscellaneous. (a) Severability. If any provision of the Lease Agreement is held to be invalid or unenforceable by a court of competent jurisdiction with respect to my party, the remainder of this Lease Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable shall not be affected, each provision of this Lease Agreement shall be valid and enforceable to the fullest extent permitted by law, and the parties shall negotiate in good faith to amend this Lease Agreement to retain the economic effect of the invalid or unenforceable provisions. (b) Binding F.tfect Bach party represents and warrants thatsaidparty has full power and authority, and the person(s) executing this Lease Agreement have full power and authority, to execute and deliver this Lease Agreement, and that this Lease Agreement constitutes a valid and binding obligation of each party, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, morganimtion, moratorium or other laws affecting the enforcement of creditor's rights generally and by general equitable principles (whether enforcement is sought in proceedings in equity or at law). This Lease Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (c) Waivers. No provision of this Lease Agreement shall be deemed to have been waived by a party unless the waiver is in writing and signed by the party against whom enforcement of the waiver is attempted. No custom or practice which may develop between the parties in the implementation or administration of the terms of this Lease Agreement shall be construed to waive or lessen my right to insist upon strict performance of the terms of this Lease Agreement. (d) Governing Law. This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. (e) Attorneys' Fees and Costa. The prevailing party in my legal claim arising hereunder shall be entitled to its reasonable attorneys' fees and court costs. Site No.: BOS0380C Page 9 of 17 Site Address: 70 Elm Street, North Andover, 14A (Q Survival. Terms and conditions of this Lease Agreement which by their sense and context survive the termination, cancellation or expiration of this Lease Agreement will so survive. (g) Memorandum of Lesse. Lessor acknowledges that a Memorandum of Agreement substantially in the form annexed hereto as Exhibit B will be recorded by Lessee in the Official Records of the County where the Property is located. (h) Entire Agreement; Amendments. This Lease Agreement constitutes the entire agreement and understanding between the parties regarding Lessee's lease of the Premises and supersedes all prior and contemporaneous offers, negotiations and other agreements concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease Agreement must be in writing and executed by duly authorized representatives of both parties. (i) No Presumptions Regardine Negotiation of Lease Agreement. The parties acknowledge and agreethateach of the parties has been represented by counsel or bas had full opportunity to consult with counsel and that each of the parties has participated in the negotiation and of this Lease Agreement. (1) Exhibits. All Exhibits referred to herein and any Addenda are incorporated herein. The parties understand and acknowledge that the legal description of the Lessors Real Property and the description/depiction of the Premises and the Memorandum of Lease, are in preliminary form. Accordingly, the parties agree that upon the preparation of final, more complete exhibits, of the Lessor's Real Property and the description/depiction of the Premises, may be replaced by Lessee with such final, more complete exhibit(s). [SIGNATURE PAGE FOLLOWS] Site No.: BOS0380C Page 10 of 17 Site Address: 70 Elm Street, North Andover, NA IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be executed by their duly authorized representatives on the dates set forth below and acknowledge that this Lease Agreement is effective as of the date first above written. LESSOR: Trinitarian Congregational Church of North Andover By: AN -- v^-' — (� (Sign/a��re) Print Name: Title: aa�7 Date: LESSEE: MetroPCS Massachusetts, LLC, a Dela limited liability Co any By: =L!a�-y*i E t 4(Si ture)//tee *Z4,�X. Print Name: Bruce Martin Title: Vice -President & General Manager Date: jA* Site No.: eOS0380C Page 11 of 17 Site Address: 70 Elm Street, North Andover, MA RECEIPT Printed:03-31-2009 0 10:54:54 Essex North Registry Robert F. Kelley Register Trans#: 39197 Oper:OELIAL NEN ENGLAND WIRELESS SOLUTIONS Book: 11525 Page: 2999 Inst#: 8302 Ctl#: 73 Rec:3-31-2039 9 10:54:50a NAW 70 ELM ST WC DESCRIPTION TRANS ANT --- ----------- ----____- NOTICE Suvharge CPA $20.00 20.00 50.00 recording fee 50.00 5.00 TECH FEE 5.00 Total fees: ---75.00 ... Total charges: 75.00 CIECK PM 1547 75.00 5 Bk 11525 Ps299 08302 03-3.1-2009 a'S 10=54u 9VEFOR REGISTRY OFDEEDS USE on COVER SHEET HE FIRST PAGE OF THIS DOCUMENT DO NOT REMOVE Essex North Registry of Deeds Robert R Kelley, Register 354 Merrimack St. Suite 304 Lawrence, MA 01843 (978)683- 2745 Www.lA Wrr+n rarlanAo ........ ;a d�tQ�i°S - GRANTOR - GRANTEE ADDRESS OF PROPERTY Crry/TOWN TYPEOFDOCUMENT . _MLC _ASSIGNMENT TYPE _DEED _6D _MORTGAGE OTICE�p('iSO� _DISCHARGE- TYPE . —SUBORDINATION _AFFIDAVIT _CERT _DEC OF HOMESTEAD_IICC TYPE _DEC OF TRUST TYPE _OTHER DESCRIBE Essex North Registry of Deeds Robert R Kelley, Register 354 Merrimack St. Suite 304 Lawrence, MA 01843 (978)683- 2745 Www.lA Wrr+n rarlanAo ........ Town of North Andover Office of the Planning Department Community Development and Services Division 1600 Osgood Street North Andover, Massachusetts 01845 NOTICE OF DECISION Any appeal shall be filed within (20) days 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 existing structure by a vote of 4 in favor and 0 auainst. I certify that 20 days have elapsed after this decision has been filed in my office and that an appeal titled Fournier v. Simon , Essex County Superior Court No. 2009-559-C has been filed within such time. /fined/ a7 ��cq iaX.N- l�u�f, i Orth Andover nningBoard John Simons, Chairman Jennifer Borax, Clerk Richard Rowen Michael Walsh 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 wireless 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 r by the submittals and reports referenced at the end of this decision in Condition 7 #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 (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. 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 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: SPECIAL CONDITIONS: 1) 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 the American National Standards Institute shall be filed with the SPGA by the Special Permit holder. 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 SPGA, within 90 days of beginning operations and at annual intervals from the date of issuance of the Special Permit, preexistent and current RFR measurements. Such measurements shall be signed and certified by an RF engineer, stating that RFR measurements are accurate and are in compliance or why the measurements fail to comply with all applicable FCC Guidelines as specified in Section 8.9(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 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 IOdb(a) above the ambient levels or produce a "pure tone" condition as set forth in DAQC Policy 90-001, the guideline for 310 CMR 7.10. The applicant may use relevant professional sound emitting data from the prior building use to build a baseline based on prior use of the building and grounds. References to sources for data must be included in the material. 6) Prior to FORM U verification (Building Permit Issuance): a) The final site plan mylars must be endorsed and three (3) copies of the signed plans must be delivered to the Planning Department. b) A certified copy of the recorded decision must be submitted to the Planning Department. 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. f 10)No equipment or other equipment that will emanate noise -exceeding levels cited d" 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. 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: • Section 8.9(5)(dxiv) Landscape Plan. A landscaping plan has not beer, provided since this is a co -location within an existing building. • Section 8.9(5xd)(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(3xa)(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 pan of the decision: a) Plan titled: MetroPCS Site No. BOS0380C Trinitarian Congregational Church 70 Elm St. North Andover, MA Sheet Number Essex County Prepared for: MetroPCS C-1 285 Billerica Road Z-1 Chelmsford, MA 01824 Prepared by: Hudson Design Group Z-3 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 (thee) 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; 11. A Letter of Authorization from William W, Pickles III, Chairman, 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; 25. Various Reports From J. Tymon, dated November 3, 2008, December 2, 2008, January 27,2009; 26. Various memos from Peter B. Morin, Esq., dated December 11, 2008, January 20, 2009, and January 30,2009; 27. A memo from Gerard Brown, Zoning Enforcement Office, town of North Andover, dated December 3, 2008; 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 (EBI) 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; • 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; • 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 Southern District of New York, Verizon Wireless vs. the town of Clarkstown; • Email from D. Deems dated Feb. 24,2009; • Email from B. Romano, dated Feb. 18, 2009; • Fire/Safety list submitted by A. Pettus at Feb. 24 2009 Planning Board meeting; • Letter from E. Collins with Letter to Editor from M. Quinlan, received at PB meeting Feb. 24, 2009; 10 i • 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. Nicene, 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. Steams, dated July 27, 2001. 1 11 Hudson©, Design Groupuc O O February 12, 2012 Mr. Greg Knight MetroPCS 2B5 Billerica Road Chelmsford, MA 01824 RE: Structural Assessment Letter Site Number: BOS0380C Site Name: Trinitarian Congregational Church 70 Bm St. North Andover, MA Dear Mr. Knight, Hudson Design Group LLC (HDG) has been authorized by MetroPCS to provide a structural Assessment of the existing site located at Trinitarian Congregational Church, 70 Bm St., North Andover, MA. Based on our evaluation, we have determined that the existing site is capable of supporting the MetroPCS antennas and equipment. This determination was based on the following information provided 1. Structural analysis provided by Hudson Design Group. LLC, dated 10 -07 -OB If you have any questions about this project, please contact our office. Respectfully Submitted, LLC Daniel P/ntmm i No. Presider{t 96.ar Hudson Design Group, LLC. o 1600 Osgood Street Building 2D North Suite 2-101 p: 975,557.5553 t: 975.336.5586 a: 1600 Osgood Sheet, BaIMNg 20 North, SuBe 2-101, N. Andover, MA 01845 p:413,558.8139 x:413,517.0590 a: 116 Pleasant Sheet, Ste 302, Basllmmpton, MA 01027 STRUCTURAL ANALYSIS REPORT For BOS0380C 70 Elm Street North Andover 70 Elm Street North Andover, Massachusetts Antennas in the Steeple and Equipment on the Ground Floor MetroPCS WIRELESS 285 Billerica Road, Third Floor Chelmsford, MA 01824 Dated: October 7. 2008 Prepared by: HUDSON DESIGN GROUP, LLC. 1600 Osgood Street Building 20 North, Suite 2-101 North Andover, MA 01845 Phone: (978) 557-5553 Hudson� Design Gfoup«; SCOPE OF WORK Hudson Design Group LLC (HDG) has been authorized by MetroPCS to conduct a structural evaluation of the existing roof structure supporting the proposed MetroPCS equipment located in the areas depicted in the Hudson Design Group Lease Exhibit dated 10-02-2008. This report represents this office's findings, conclusions and recommendations pertaining to the support of MetroPCS's proposed BTS, Battery and PPC cabinets. This office conducted an on-site visual survey of the above areas on September 26, 2008. Attendees included Michael Cabral (HDG-Project Engineer), Andrew Powers (HDG-Associate). CONCLUSION SUMMARY: No design documents were available for our use. A limited visual survey of the structure was complete in or near the areas of the Proposed Work. Based on our evaluation, we have determined that, in general, structural designs to support the proposed MetroPCS Equipment within or near the Proposed Lease Area can be completed and components installed with NO STRUCTURAL UPGRADES REQUIRED to the existing structure. The proposed antennas are to be secured to pipe masts attached at the top and bottom with lag screws to the existing wood structure directly behind the existing louvers. The louvers are recommended to be replaced with an FRP material. A summary of the proposed support types and attachment locations are as follows: Proposed BTS (wt= 7301bs) ...Located at inside an existing closet supported at the ground level. Proposed Battery Cabinet (wt= 2210 Jibs).... Located at inside an existing closet supported at the ground level. Proposed Galaxy Power Cabinet (wt-- 27201bs).... Located at inside an existing closet supported at the ground level. Proposed PPC (wt=200+/- lbs) .... Located at inside and existing closet secured to the wall. Proposed (8) Antennas ............ Mounted directly behind the existing louvers supported on pipe masts directly below the clock tower. Hudson* GroupucO Calculations and referenced documents are attached. DESIGN CRITERIA: 1, Massachuseus State Building code, latest edition. Wind Analysis: (N/A due to Antennas being enclosed with the steeple) Reference Wind Speed, q(z): 110 mph [780CMR 1604.10] Exposure: C Category: 11 [ASCE 7.05 T1.1] Gust-effxt Factor, G: .85 [ASCE Sect 6.5.8.1] Force Coefficient, C(O: varies [ASCE Fig 6-21] F— q(z) x G x C(O x A(t) [ASCE 7.05 Eq 6-28] Snow Loading: Basic Ground Snow Load: 55 psf [780CMR 1604.10] 2. EIA/771A -222- F Structural Standards for Steel Antenna Towers and Antenna Supporting Structures County: Essex Wind Load: 90 mph 3. Approximate height above grade to antennas: 80'-0" Hudson Design Group«c EQUIPMENT SUPPORT RECOMMENDATIONS: HUG recommends that the proposed equipment be located inside the existing closet below the stairs supported by the existing concrete slab. ANTENNA SUPPORT RECOMMENDATIONS: HDG recommends the antennas be located directly behind the existing louvers (See photos attached). The antennas will be supported by new pipe masts secured at the top and bottom with standard lag screws attachments to the existing wood structure. The existing louvers are recommended to be replaced with an FRP material painted to match the look of the existing louvers. Lag screws will be designed and furnished in the construction drawings Hudson©, Deslgn GroupO ucO LOCATION OF PROPOSED EQUIPMENT: Photo 1: Sample photo of the existing closet located at the ground level below the stairs where the equipment is proposed to be located. Hudson Design Group* Photo 2: Sample photo of the existing closet below other stairwell on opposite end of proposed equipment location. Be advised of the concrete Boor shown above similar to what is supporting the proposed equipment. Hudson© Design Group O LOCATION OF PROPOSED ANTENNAS WITHIN THE CHURCH STEEPLE: Photo 3: Sample photo of where new MetmPCS antennas are proposed to be located behind the existing louvers shown above. These louvers are recommended to be replaced with an FRP material. Hudson Design GrOUpua PROPOSED PRELIMARY SKETCHES TOP OF EXISTING SPIRE_ �-ELEV. 150'-0`f (AGL) PROPOSED ANTENNA (TYP. OF 8) BEHIND FIBERGLASS LOUVERS TO MATCH EXISTING PROPOSED ANTENNAS _(TOTAL BZ EXISTING BELL ELEV. 80'-0.t (AOL) - TOWER PROPOSED COAX RUN FROM EQUIPMENT TO ANTENNAS i i i i EXISTING CHURCH `u� 1 \ FLOOR LELE VEL ELEV. = 0 (AGL) I i 1 It e l l l I PROPOSED PROPOSED 12'-10`X7'-0' LEASE /ED�Cp AREA UNDER STAIRS cR'UNb CONWrrs I I—' (APPRx. izo s0. Fl) INSIDE CHURCH— (T.B.D.) GROUND LEVEL EAST ELEVATION - --i "� REV 2:-0°10/o /08 REV 1: 09/29/00 SITE Na. BOS0380C i�6`i�f-\.�C SITE TYPE: CHURCH DATE: SITE NAME: TRINITARIAN CONGREGATIONAL "wt VI cs 00/25/08 CHURCH 11NnA rovaotl. ADDRESS 70 ELM STREET 285 BLLD2MA ROMD-THIRD FL00R NORTH ANDOVER, MA 01845 CHEUbFDRD, Mu 01824 DRAWN BY: PG SCALE: NTS EXPAND IN70 DEAD AREA IF AVAILABLE SITE Na B050380C SITE NAME: TRINITARIAN CONGREGATIONAL CHURCH ADDRESS: 70 ELM STREET NORTH ANDOVER, MA 01845 PROPOSED INDOOR BATTERY CABINET =PROPOSED RED INDO POWER CABINET 1-1 PROPOSED INDOOR MODCELL CABINET LOW CEILING EL.=B'-8" II II I I II II I I SLOPE UP II I EXISTING WALL y I TO TREMOVED I� I I I HIGH CEILING I I EL.=10'-5' II � EQUIPMENT PLAN CLOSET UNDERNEATH STAIRS @ GRADE LEVEL metroPCS. 2M RUERIGI R04D-THIRD FLOOR CHELMSFORD, MA 01814 SITE TYPE: CHURCH DRAWN BY: PG REV 2� REV I-09i2eio DATE: 09/30/08 SCALE: NTS Noise Control Engineering, Inc. NOISE STUDY TO: Andrey Tsikanovsky, Senior Project Manager COMPANY Hudson Design Group LLC FROM: Callie Reis {callie reisanoise-conhol Com} Michael Bahtiarian {mikeb(inoisec ntrol.ccm) DATE: February 16, 2012 799 MIDDLESEX TNPK. BILLERICA MA 01821-3045 PHONE: 978970-5339 FAX: 978987-7047 Email: nondw@nois wntr Lwm SUBJECT: MetroPCS and T -Mobile Noise Evaluation UPDATE Trinitarian Congregational Church 70 Elm Street, North Andover, 01845 INTRODUCTION Noise Control Engineering, Inc. (NCE) was retained by the Hudson Design Group to review a set of acoustic analyses previously performed by NCE for a combined MetroPCS and T - Mobile personal wireless facility at 70 Elm Street in North Andover, MA. The facility is located in the basement of the Trinitarian Congregation Church. Figure 1 shows the site, property line, measurement locations and calculation locations. Most noise -generating equipment is located inside the church with one item located on the building exterior. These equipment items include: . (1) MetroPCS Modcell cabinet . (1) Galaxy power cabinet . (3) Ericsson RBS 2206 cabinets . (2) indoor battery cabinets . (1) Mitsubishi Mr. Slim air conditioning system (exterior to building) This document summarizes the four NCE noise studies performed for this site below and Conhmrs that all previous assumptions and statements are still valid for the facility in 2012 with all equipment installed as designed. NOISE LIMIT The Town of North Andover "Zoning Bylaw", Section 8.9 "Wireless Service Facilities", [ll 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, i.e., a measurement of ambient noise 70 ELM NoM Andover, MA.d Noise Control February 16, 2012 Engineering, Inc. prior to the construction of the facility, and a prediction of the resulting noise levels with the equipment installed. This prediction must be given in Ldn'. The bylaw does not place a limit on the allowable increase over ambient noise that occurs once the facility is operational. REVIEW NCE's original analysis of the T -Mobile equipment was performed on November 17, 2008 [2]. Noise levels due to the T -Mobile equipment alone were below the 50 dB(A) limit and NCE predicted that the measured ambient Iroise level of 59 dB(A) would not change once the facility was operational. The study was amended to address "pure tone" noise per the Massachusetts Department of Environmental Protection (MADEP) noise regulation on December 23, 2008 [3]. Pure tones cannot be evaluated given that manufacturer supplied data lists only overall noise levels. NCE maintains that all assumptions made in the aforementioned reports we valid to date. NCE performed a second analysis of the site (dated May 1, 2009) in order to predict acoustic effects after the installation of MetroPCS equipment [4]. The approximation of noise at the property line due to the interior equipment included evaluation of transmission loss through the budding wall as well as the typical attenuation expected as distance from the noise source increases. Additionally, NCE calculated a combined overall sound pressure level due to both T -Mobile and MetroPCS interior and exterior equipment. In all directions, noise emitted from the combined T -Mobile and MettoPCS personal wireless facility was predicted to be below the 50 dB(A) limit and the resulting ambient Lde did not increase above the measured 59 dB(A). Given predicted noise levels of 23-26 dB(A) due to all operating T -Mobile and MetmPCS equipment, NCE stated that the personal wireless facility would be inaudible at the property line. Measurements performed on August 11, 2009 confirmed that not only had the background noise level at the site remained the same after the equipment was installed but that measured noise at the property line was identified as due to traffic or HVAC units on neighboring properties [5]. CONCLUSION The equipment for the combined T -Mobile and MetroPCS wireless facility installed at 70 Elm Street in North Andover, Massachusetts complies 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, Lda. NCE measurements in August 2009 have shown that no noise impact has resulted from the operation of this equipment. 1 DarNlghrAverage Sound Lervel(DNL ar ldn)Mh indW 10d td GenaMbre dumig nipMaedods(1Op. b]em). 0 Page Noise Control February 16, 2012 Engineering, Inc. REFERENCES 1. Town of North Andover Massachusetts Zoning Bylaws, Section 8.9 "Wireless Service Facilities", Subsection 5 "Design Standards", page 99, Revised July 10, 2006. 2. NCE Job Memo, "MetroPCS Antenna Site Noise Evaluation BOS0380C Trinitarian Congregational Church 70 Ehn Street, North Andover, 01845", dated November 17, 2008. 3. NCE Job Memo, "MetroPCS Antenna Site Noise Evaluation BOS0380C Trinitarian Congregational Church 70 Elm Street, North Andover, 01845", dated December 23, 2008. 4. NCE Job Memo, "T -Mobile Antenna Site Noise Evaluation 4BZ-0023A Trinitarian Congregational Church 70 Ehn Sheet, North Andover, 01845", dated May 1, 2009. 5. NCE Job Memo, "MetroPCS Antenna Site Noise Evaluation BOS0380C Trinitarian Congregational Church 70 Ehn Street, North Andover, 01845 Follow Up Noise Study", dated August 14, 2009. • Page 3 Noise Control February 16. 2012 Engineering, Inc. FIGURE 1: Background noise monitoring location and noise calculation locations. or NoRfm % yJ , / RES WY 42 So..I(. /' S5-18 RES 44!00! 50. R. RES. a r/ 1� PROPOSED 7'X10* LEASE AREA NROO i Q THE IRRAM' ROOM r SE SA / e^w PANEL ANWNN#S, J a% MOUNTED AT SPIRE ^� EEAL (MIAL OF 4) 1x-1 \ RES. E%SRNG SUBJECT \ BULDING TING PROPERTY R PER ; $y UNE (IYP.) �x. � A ~ 4RES. q / ry0/ RES. �. 4q�4 4 6/ a c 4x -1e 42-12 1 RES. CIS RES' �, Ropey • BaWam]Ndw Mwitrl19 PaXbi Mev SEeupmM� ® NpW Caalb lnm 'Pmp"u,w Reviewed and Approved By: MIch'a BandaMn, INCE 50. Can. &vN Gwul µwgoul EigareertyfnNMNe N Ntir Cmad EpMerry Iwnr.lvaw.wpl 0 Page 4 Metro PCS Inc. Site ID - BOS0380C Site Name -Trinitarian Congregational Church Site Compliance Report 70 Elm Street North Andover, MA 01845 Essex County Site visit date: November 16, 2011 Site survey by: Joe Hater Latitude: N42-41-58.85 Longitude: W71-7-34.18 Structure Type: Church Steeple I Report generated date: November 18, 2011 Report by: Scott Hoy Customer Contact: Rakesh Goel Metro PCS Inc. is Compliant based on FCC Rules and Regulations. ® 2011 Sitesafe, Inc. Arlington, VA OOFkq f DAVID C. �4 Rs 00 COTTON, JR. 'I U ELECTRICAL N NO. 48721Davi GISTER E Regis ered Professional Engineer, Electrical Commonwealth of Massachusetts, 48721 Date: 2011 -Nov -30 lsitesafe r. co opi'.a�.ce eK pe4ts Metro PCS Inc. BOS0380C - Trinitarian Congregational Church Radio Frequency (RF) Site Compliance Report 200 N. Glebe Road, SURe 1000. Arlington, VA 22201-3726 703.276.11W • InfoOPS6es0le.com sitesafe complla nce experts Table of Contents 1 EXECUTIVE SUMMARY 2 REGULATORY BASIS............................................................................................. 2.1 FCC RULES AND REGULATIONS............................................................................3 2.2 OSHASTATEMENT..............................................................................................4 3 SITE COMPLIANCE.............................................................................................5 3.1 SITE COMPLIANCE STATEMENT..............................................................................5 3.2 ACTIONS FOR SITE COMPLIANCE..........................................................................5 4 SAFETY PLAN AND PROCEDURES............................................................... I...... u 5 ANALYSIS............................................................................................................ 5.1 RF EMISSIONS DIAGRAM.....................................................................................7 5.2 SITE MEASUREMENTS............................................................................................9 6 SITE AUDIT........................................................................................................10 6.1 SITE ACCESS PROCEDURES.................................................................................10 6.2 ANTENNA INVENTORY........................................................................................ 11 6.3 SITE PICTURES.................................................................................................... 13 7 FIELD TECHNICIAN CERTIFICATION................................................................18 8 ENGINEER CERTIFICATION..............................................................................19 APPENDIX A -STATEMENT OF LIMITING CONDITIONS.........................................20 APPENDIX B - ASSUMPTIONS AND DEFINITIONS..................................................21 GENERAL MODEL ASSUMPTIONS................................................................................... 21 USEOF GENERIC ANTENNAS.........................................................................................21 DEFINITIONS................................................................................................................. 22 APPENDIX C - RULES & REGULATIONS...................................................................24 EXPLANATION OF APPLICABLE RULES AND REGULATIONS .................................................. 24 OCCUPATIONAL ENVIRONMENT EXPLAINED.................................................................... 24 APPENDIX D -GENERAL SAFETY RECOMMENDATIONS.......................................25 ADDITIONALINFORMATION........................................................................................... 26 208 N. Glebe Road • S Be 1800 • Arlington, VA 22203-3728 703.276.1100 • IMo@sBesate.com sitesafe rf complionce experts Executive Summary Metro PCS Inc. has contracted with Sitesafe, Inc. (Sitesafe), an independent Radio Frequency (RF) regulatory and engineering consulting firm, to determine whether the communications site, BOS0380C -Trinitarian Congregational Church, located at 70 Elm Street, North Andover, MA, is in compliance with Federal Communication Commission (FCC) Rules and Regulations for RF emissions. Sitesafe's field personnel visited BOS0380C - Trinitarian Congregational Church on November 16, 2011. This report contains a detailed summary of the RF environment at the site including: site compliance determination; • photographs of the site; • diagram of the site; • inventory of the make / model of all transmitting antennas found on the site (where possible); • record of any Maximum Permissible Exposure ("MPE") measurements taken on the site, as applicable; and • theoretical MPE based on modeling. This report addresses exposure to radio frequency electromagnetic fields in accordance with the FCC Rules and Regulations for all individuals, classified in two groups, "Occupational or Controlled" and "General Public or Uncontrolled:' This site is compliant with the FCC rules and regulations, as described in OEr Bulletin 65. During our field visit Sitesafe documented the presence and location of signs and barriers. This document specifically addresses compliance of Metro PCS Inc.'s transmitting facilities independently and in relation to all collocated transmitting facilities, which together constitute the RF environment at the site. If you have any questions regarding RF safety and regulatory compliance, please do not hesitate to contact Sitesafe's Customer Support Department at (703) 276- 1100. 200 N. Glebe Road - SuRe 1000. Arlington. VA 22203-3728 703.276.1100.1rdoftit"ate.com Page 2 lsire -.._:Fe _ 1 e erperls 2 Regulatory Basis 2.1 FCC Rules and Regulations In 1996, the Federal Communication Commission (FCC) adopted regulations for the evaluating of the effects of RF emissions in 47 CFR § 1.1307 and 1.1310. The guideline from the FCC Office of Engineering and Technology is Bulletin 65 ("OEr Bulletin 65"), Evaluating Compliance with FCC Guidelines for Human Exposure to Radio Frequency Electromagnetic Fields, Edition 97-01, published August 1997. Since 1996 the FCC periodically reviews these rules and regulations as per their congressional mandate. FCC regulations define two separate tiers of exposure limits: Occupational or "Controlled environment" and General Public or "Uncontrolled environment'. The General Public limits are generally five times more conservative or restrictive than the Occupational limit. These limits apply to accessible areas where workers or the general public may be exposed to Radio Frequency (RF) electromagnetic fields. Occupational or Controlled limits apply in situations in which persons are exposed as a consequence of their employment and where those persons exposed have been made fully aware of the potential far exposure and can exercise control over their exposure. An area is considered a Controlled environment when access is limited to these aware personnel. Typical criteria are restricted access (i.e. locked a alarmed doors, barriers, etc.) to the areas where antennas are located coupled with proper RF warning signage. A site with Controlled environments is evaluated with Occupational limits. All other areas are considered Uncontrolled environments. If a site has no access controls or no RF warning signage it is evaluated with General Public limits. The theoretical modeling of the RF electromagnetic fields has been performed in accordance with OET Bulletin 65. The Maximum Permissible Exposure (MPE) limits utilized in this analysis are outlined in the following diagram: FCC Limits for Maximum Permissible Exposure (MPE) N... Emivalanl Powe M n 0.1 0.01 0 1 10 100 Lox 10." Flp.W p6N4 200 N. Glebe Ro d • SURe 1808 • Arlington. VA 22203-3728 703.276.1100 • MooesBesole.com page 3 —Occupational GenenY Public \ \ / 0.01 0 1 10 100 Lox 10." Flp.W p6N4 200 N. Glebe Ro d • SURe 1808 • Arlington. VA 22203-3728 703.276.1100 • MooesBesole.com page 3 , sitesde rf compliance experts Limits for OccupationapCootmlled Exposure (MIFE) Frequency Electric Magnetic Power Averaging TimelEl', Range Field Field Density IHI' or S (minutes) 6AH.) Strength (E) Shrngth (S) (Vhn) (H)(A/) 0.3-3.0 614 1.63 (100)' 6 3.0-30 1842/£ 4.99/f (901 6 30-300 61.4 0.163 1.0 6 3041500 — -- 0300 6 1504 — _ 5 6 100,000 Limits for General Population/Uncontrolled Exposure (WE) Frequency Electric Magnetic Power Averaging Time El', Range Field Field Density HI' or S (minutes) (MHz) Strength (E) Strength (S) (V/ID) (11)(A/) ( W/un') 0.3-1.34 614 1.63 (100)• 30 1.34-30 824/f 2.19/f (180/fl 30 30-300 27.5 0.073 02 30 3041500 — -- f/1500 30 1500- — -- 1.0 30 100,(1(10 f = frequency in MHz "Plane -wave equivalent power density 2.2 OSHA Statement The General Duty clause of the OSHA Act (Section 5) outlines the occupational safety and health responsibilities of the employer and employee. The General Duty clause in Section 5 states: (a) Each employer - (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death a serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act. (b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct. OSHA has defined Radiofrequency and Microwave Radiation safety standards for workers who may enter hazardous RF areas. Regulation Standards 29 CFR § 1910.147 identify a generic Lock Out Tag Out procedure aimed to control the unexpected energization or start up of machines when maintenance or service is being performed. 200 N. Glebe Rood • Sulte 1000 • Arlington, VA 22283-3728 703.276.1100 • IraaBshmide.com Page 4 Esitescre r( com piionce experts 3 Site Compliance 3.1 Site Compliance Statement Upon evaluation of the cumulative RF emission levels from all operators at this site, and a thorough review of site access procedures, RF hazard signage and visible antenna locations, Sitesafe has determined that: This site Is compliant with the FCC rules and regulations, as described in OET Bulletin 65. Metro PCS Inc. is predicted to contribute greater than 5% of the maximum permissible exposure (MPE) based on theoretical modeling using parameters supplied by the client. A detailed explanation of the 5% rule can be found in the Definition section of Appendix B. The compliance determination is based on Occupational MPE levels due to theoretical modeling and/or physical measurements, RF signage placement, and the level of restricted access to the antennas at the site. Measurements have also been performed to validate the assumptions used in our theoretical modeling of this site. Modeling is used for determining compliance and the percentage of MPE contribution. Measurements provide a view of MPE percentage levels at the site at the time of Sitesafe's visit and are used to validate modeling results. 3.2 Actions for Site Compliance Based on common industry practice and our understanding of FCC and OSHA requirements, this section provides a statement of recommendations for site compliance. RF alert signage recommendations have been proposed based on existing measurements and theoretical analysis of MPE levels. Sitesafe has documented the locations of any RF signs and barriers that are required for compliance. Barriers can consist of locked doors, fencing, railing, rope, chain, paint striping or tape, combined with RF alert signage. This site is compliant with the FCC rules and regulations. However, because Metro PCS Inc. is predicted to contribute greater than 5% of the maximum permissible exposure (MPE), should the site be subsequenty deemed non-compliant for any reason, any wireless operator(s) who contribute greater than 5% of the maximum permissible energy would be jointly liable for bringing the site into compliance. 200N. Glebe Road - SURe 1888 . Arlington, VA 22203-3728 703.276.1100. laro®sResa e.com Page 5 sitesaFe rf compliance experts Safety Plan and Procedures The following items are general safety recommendations that should be administered on a site by site basis as needed by the carrier. General Maintenance Work: Any maintenance personnel required to work immediately in front of antennas and / or in areas indicated as above 100% of the Occupational MPE limits should coordinate with the wireless operators to disable transmitters during their work activities. Trainlna and Qualification Verification: All personnel accessing areas indicated as exceeding the General Population MPE limits should have a basic understanding of EME awareness and RF Safety procedures when working around transmitting antennas. Awareness training increases a workers understanding to potential RF exposure scenarios. Awareness can be achieved in a number of ways (e.g. Videos, formal classroom lecture or internet based courses). Physical Access Control• Access restrictions to transmitting antennas locations is the primary element in a site safety plan. Examples of access restrictions are as follows: • Locked door or gate • Alarmed door • Locked ladder access • Restrictive Barrer at antenna (e.g. Chain link with posted RF Sign) RF Sianaae: Everyone should obey all posted signs at all times. RF signs play an important role in properly warning a worker prior to entering into a potential RF Exposure area. Assume all antennas are active: Due to the nature of telecommunications transmissions, an antenna transmits intermittently. Always assume an antenna is transmitting. Never stop in front of an antenna. If you have to pass by an antenna, move through as quickly and safety as possible thereby reducing any exposure to a minimum. Maintain a 3 foot clearance from all antennas: There is a direct correlation between the strength of an EME field and the distance from the transmitting antenna. The further away from an antenna, the lower the corresponding EME field is. Site RF Emissions Diaaram: Section 5 of this report contains an RF Diagram that outlines various theoretical Maximum Permissible Exposure (MPE) areas at the site. The modeling is a worst case scenario assuming a duty cycle of 100% for each transmitting antenna at full power. This analysis is based on one of two access control criteria: General Public criteria means the access to the site is uncontrolled and anyone can gain access. occupational criteria means the access is restricted and only properly trained individuals can gain access to the antenna locations. 200 N. Glebe Road • SuRe 1000 703.276.1100 • Mole Page 6 ffisitesafe if compliance experts 5 Analysis 5.1 RF Emissions Diagram The RF diagram(s) below display theoretical spatially averaged percentage of the Maximum Permissible Exposure for all systems at the site unless otherwise noted. These diagrams use modeling as proscribed in OEr Bulletin 65 and assumptions detailed in Appendix B. The key at the bottom of each diagram indicates if percentages displayed are referenced to FCC Occupational or General Public Maximum Permissible Exposure (MPE) limits. Color coding on The diagram is as follows: e Areas indicated as Gray are below 5% of The MPE limits. . Green represents areas predicted to be between 5% and 20% of the MPE limits. • Yellow represents areas predicted to be between 20% and 100% of The MPE limits. . Red areas indicated predicted levels greater than 100% of the MPE limits. General Population diagrams are specified when an area is accessible to The public; i.e. personnel that do not meet Occupational or RF Safety trained criteria, could gain access. If trained occupational personnel require access to areas that are delineated as Red or above 100% of the limit, Sitesafe recommends that they utilize the proper personal protection equipment (RF monitors), coordinate with the carriers to reduce or shutdown power, or make real-time power density measurements with the appropriate power density meter to determine real-time MPE levels. This will allow the personnel To ensure That Their work area is within exposure limits. The key at the bottom also indicates the level or height of the modeling with respect to The main level. The origin is typically referenced to the main rooftop level, or ground level far a structure without access to the antenna level. For example: Average from 0 feet above to 6 feet above origin and Average from 20 feet above to 26 feet above origin The first indicates modeling at the main rooftop (or ground) level averaged over 6 feet. The second indicates modeling at a higher level (possibly a penthouse level) of 20 feet averaged over 6 feet. Abbreviations used in the RF Emissions Dia rams PH=##' Penthouse at ## feet above main roof M## Measurement ## Taken during a site vast As discussed in Section 5, site measurement locations for spatial average measurements collected at the time of Sitesafe's visit have been added to the RF 208 N. Glebe Roatl. We 1080. AOington, VA 22203-9728 703.276.1100. IMo®sfesole.com Page 7 EsirescFe if compliance experts emissions diagram. While the theoretical modeling represents worst case MPE levels based on the assumption(s) detailed above, the measurement data is a snapshot of MPE levels at the time of our visit, and dependent on transmitter duty cycle, system implementation and emissions from other RF sources at nearby antenna sites. Additional Information in the RF Emissions Diagrams Key The RF Emission Diagram provides indications of RF signage, barriers and locked doors. The table below Fists the abbreviations used to indicate locked doors, signs and barriers: As discussed in Section 5, site measurements collected at the time of Sitesafe's visit have been added to the RF Emission diagrams. While the software modeling represents theoretical MPE levels based on the assumptions detailed above, the site measurement data is a snapshot of MPE levels, and dependent on transmitter duty cycle, system implementation and emissions from other RF sources at nearby antenna sites. 200 N. Grebe Rood, SU% 1000. Arlington, VA 222033728 703276.1100. into®s8esote.com Page 8 Table 1: RF SI na a and Barrier Ke RF Si na a I Barriers Type Existing Location Recommended Location Type Existing Location Recommended Location Notice NE NR Locked Door LE LR Caution CE R Fencing Rope Chain Paint Stripes RE RR Warning WE WR Info Sin IE As discussed in Section 5, site measurements collected at the time of Sitesafe's visit have been added to the RF Emission diagrams. While the software modeling represents theoretical MPE levels based on the assumptions detailed above, the site measurement data is a snapshot of MPE levels, and dependent on transmitter duty cycle, system implementation and emissions from other RF sources at nearby antenna sites. 200 N. Grebe Rood, SU% 1000. Arlington, VA 222033728 703276.1100. into®s8esote.com Page 8 RF Emissions Diagram for: Trinitarian Congrational Church Main Level Steeple - Detail View Este www.sitesafe.com Sitesafe IDH 77890 Site Name: Trinitarian Congrational Church %of FCC Public Exposure Lnmt Average from 0 feet above to 6 feet above origin Feet nrtrtnnr—u 3 0 3 6 Grid Size is 10.0 100<=X ❑ 20<=X<100 5<=X<20 El X<=5 Feet nrtrtnnr—u 3 0 3 6 Grid Size is 10.0 RF Emissions Diagram for: Trinitarian Congrational Church Building Level -3 F C]^.1A9 WER Feet 10 0 10 20 Grid S""10 0 izeis100 %of FCC Public Exposure Limit Average from 31 feet below to 25 feet below origin 100rX ❑ 20<=X<100 1SI�2 5 r-- X <20 www.sitesafe.com ❑ X <= 5 Sitesafe IM 77890 Site Name: Trinitarian Congrational Church C]^.1A9 WER Feet 10 0 10 20 Grid S""10 0 izeis100 RF Emissions Diagram for: Trinitarian Congrational Church Metro PCS Inc. Contribution - Main level Steeple - Detail View sse w .sitesafe.com Sitesafe ID# 77890 Site Name: Trinitarian Congrational Church of FCC Public Exposure Limit Average from 0 feet above to 6 feet above origin Feet nnrinnrZ� 3 0 3 6 Grid Size is 10.0 100r—X ❑ 20r --X<100 5<=X<20 ❑ X r-- 5 Feet nnrinnrZ� 3 0 3 6 Grid Size is 10.0 RF Emissions Diagram for: Trinitarian Congrational Church Metro PCS Inc. Contribution - Building Level -3 P %of FCC Public Exposure Limit Average from 31 feet below to 25 feet below origin c Pr, Aal WER Feet 10 0 10 20 Grid Size is 10.0 IOOr—X ❑ 20<=X<100 a1�51f13 5<=X<20 www.sitesafe.com ❑ X<=5 Sitesafe ID# 77890 Site Name: Trinitarian Congrational Church c Pr, Aal WER Feet 10 0 10 20 Grid Size is 10.0 siresde rr compliance ex p e rs 5.2 Site Measurements This section provides a summary of the measurements collected at the site. Actual measurements locations at which these data points were collected are included in the RF emission diagram provided in Section 6 of this report. Two types of measurements were collected at each measurement location: maximum (peak) and spatial average. The spatial average measurement consists of a collection of ten (10) measurements within a ten (10) second time interval taken from zero (0) to six (6) feet in height. The purpose of this measurement technique is to identify the average power density over the dimensions of a typical human body. Table 2 below contains all the measurements collected from accessible areas located at the site at the time of Sitesafe's visit. Whenever possible, measurements are taken in front of the antenna in the transmitting direction. However, because of the antenna configuration at this site, specific emissions could not be discerned from nearby facilities, and no attempt was made to determine power density levels from a specific transmitting antenna. Highest Measured Occupational Level: <1% This value is equal to: Highest General Public Level: <5%. Table 2: Spatial Average and Maximum Occupation I Measurements Measurements Spatial Points Average Maximum Measurements Points Spatial Average Maximum Ml <I % <1 % M6 <1 % <1 $ M2 <I % <1% M7 <1 % <1% M3 <1 % <1% M8 <I % <1% M4 <I % <1 % M9 <I % <I % M5 <1 % <1 % M10 <I % <1% RF meters and probes have been calibrated and used according to the manufacturer's specifications. Measurements provide a view of the MPE percentage levels of the site at the time of Sitesafe's site visit and are used to validate modeling results. Theoretical modeling is used for determining compliance and the percentage of MPE contributions. An RF Emission diagram has been included in section 5 of this document. All measurement locations are identified in this diagram. The locations of measurements in the RF Emission diagram can be cross referenced with Table 2 (above) to determine the actual spatial average and maximum measurement value per location. 200 N. Glebe Road . Sale 1000. Argnglon, VA 22203-3728 703.276.1100. lnto@s8esale.com Page 9 sitesafe r c o m p I i s n c e experts 6 Site Audit 6.1 Site Access Procedures A site visit was conducted on November 16, 2011 at approximately 12:30 PM. The weather conditions were Rain/Drin1e with a temperature of 60 degrees. At that time, a diagram of the site was verified, obtained or produced containing the locations of all visible antennas, RF signs and access points on site. These antennas were recorded and photographed. The antenna make(s)/model(s) and centerlines were verified where possible. The following information was gathered regarding site access at the facility. Site access was unlocked/unrestricted at the time of the site visit. RF Advisory signage was posted at all site access points. 200 N. Glebe Road. SuRe 1000. AAn". VA 27303-3728 703.276.1100. kdo®s8esare.com Page 10 sitesde rf cornpilonce evpe.ts 6.2 Antenna Inventory The Antenna Inventory shows all transmitting antennas at the site. This inventory was verified on site, and was utilized by Sitesafe to perform theoretical modeling of RF emissions. The inventory coincides with the site diagrams in this report, identifying each antenna's location at BOS0380C -Trinitarian Congregational Church. The antenna information collected includes the following information: • Licensee or wireless operator name • Frequency or frequency band • Transmitter power- Effective Radiated Power ("ERP"), or Equivalent Isotropic Radiated Power ("EIRP") in Watts • Antenna manufacturer make, model, and gain For other carriers at This site, the use of "Generic" as an antenna model, or "Unknown" for an operator means the information with regard to carrier, their FCC license and/or antenna information was not available nor could it be secured while on site. Equipment, antenna models and nominal transmit power were used for modeling, based on past experience with radio service providers. 200 N. Glebe Road • Suite 1000 • Arlington, VA 22203-3728 703376.1100. inro0s8esale.com Page 11 { R 0 `, R m m m w t� } / a �■ ] ° « « k k k k !§§§)7,§eƒ:ƒ �\`\�\ PT ■f § § q § § 2 § § e!|i a 2 � { / ) k } } © $ -0! _ ! ` . R 6.3 Site Picture. Figure 2: 1slresaFe ..re evper�s tl through #2 200 N. Glebe RIW - SuRe 1000. Adingfw, VA 703.276.1100. ldO@sResale.0 m ORN siLesafe Figure 4: T -Mobile Antenna #5 X 1 ?9 Figure 5: T -Mobile Antenna #6 2ODN.abbe Road. Sulte 100O.Arlington, VA 22203-3728 703.276.1100 • iigo@sle$cde.COM lsiresafe ^i plionce experts U eea ad �� s Figure 6: T -Mobile Antenna #7 288 N. Glebe Road . SuBe 1088. Arlington, VA 21203-3728 703.276.1100. inio@sletote.com sitesde rt compliance experts 200 N. Gbbe Road. SuRe 1000. AOington, VA 22203-3728 701276.1100. YIo@sgenale.com siresae rf compliance ezp errs n Figure 10: Steeple Overview- South face 200N. Glebe Road • Sulle 1000 • Arlington, VA 22103-3728 703.276.1100 • IMo@SHWale.com lsiresafe - ice experts 7 Held Technician Certification I, Joe Huter, state: That I am an employee of Sitesofe, Inc., in Arlington, Virginia, which provides RF compliance services to clients in the wireless communications industry; and That I have successfully completed RF Safety Awareness training, am aware of the hazards and, therefore, can be exposed to RF fields classified for "Occupational' exposure; That I am familiar with the Rules and Regulations of the Federal Communications Commission (FCC) as well as the regulations of the Occupational Safety and Health Administration (OSHA), both in general and specifically as they apply to the FCC Guidelines for Human Exposure to Radio-frequency Radiation; and That I have been trained in the proper use of measurement equipment, and have successfully completed Sitesafe training in policy, procedure and proper sife measurement and modeling; and That I performed survey measurements of the RF environment at the site identified as BOS0380C - Trinitarian Congregational Church on November 16, 2011 at 12:30 PM in order to determine where there might be electromagnetic energy that is in excess of both the Controlled Environment and Uncontrolled Environment levels; and That the survey measurements were performed with measurement equipment, model Narda 87188 field intensity meter (serial number 01613) and model A8722D field intensity probe, (serial number 13009) calibrated on 2/14/2011; and That I have prepared this Site Compliance Report and believe it to be true and accurate to the best of my knowledge and based on data gathered. By: Joe Huter 200 N. Glebe Rood • SuBe 1000. Adington, VA 22203-3728 703.276.1100 • INo®slesale.com ffisilesafe rf compliance experts 8 Engineer Certification The professional engineer whose seal appears on the cover of this document hereby certifies and affirms that: I am registered as a Professional Engineer in the jurisdiction indicated in the professional engineering stamp on the cover of this document; and That I am an employee of Sitesafe, Inc., in Arlington, Virginia, at which place the staff and I provide RF compliance services to clients in the wireless communications industry; and That I am thoroughly familiar with the Rules and Regulations of the Federal Communications Commission )FCC) as well as the regulations of the Occupational Safety and Health Administration (OSHA), both in general and specifically as they apply to the FCC Guidelines for Human Exposure to Radio-frequency Radiation; and That survey measurements of the site environment of the site identified as BOS0380C - Trinitarian Congregational Church have been performed in order to determine where there might be electromagnetic energy that is in excess of both the Controlled Environment and Uncontrolled Environment levels; and That I have thoroughly reviewed this Site Compliance Report and believe if to be true and accurate to the best of my knowledge as assembled by and attested to by Scott Hoy. November 18.2011 200N. Glebe Road. Suee 1000. Adington, VA 19103-3728 703.476.1100. Inlo®silesale.com sitesaFe rf compllonce experrs Appendix A — Statement of Limiting Conditions Sitesafe field personnel visited the site and collected data with regard to the RF environment. Sitesafe will not be responsible for matters of a legal nature that affect the site or property. The property was visited under the premise that it is under responsible ownership and management and our client has the legal right to conduct business at this facility. Due to the complexity of some wireless sites, Sitesafe performed this visit and created this report utilidng best industry practices and due diligence. Sitesafe cannot be held accountable or responsible for anomalies or discrepancies due to actual site conditions (i.e., mislabeling of antennas or equipment, inaccessible cable runs, inaccessible antennas a equipment, etc.) or information or data supplied by Metro PCS Inc., the site manager, or their affiliates, subcontractors or assigns. Sitesafe has provided computer generated model(s) in this Site Compliance Report to show approximate dimensions of the site, and the model is included to assist the reader of the compliance report to visualize the site area, and to provide supporting documentation for Sitesafe's recommendations. Sitesafe may note in the Site Compliance Report any adverse physical conditions, such as needed repairs, observed during the survey of the subject property or that Sitesafe became aware of during the normal research involved in performing this survey. Sitesafe will not be responsible for any such conditions that do exist or for any engineering or testing that might be required to discover whether such conditions exist. Because Sitesafe is not an expert in the field of mechanical engineering or building maintenance, the Site Compliance Report must not be considered a structural or physical engineering report. Sitesafe obtained information used in this Site Compliance Report from sources that Sitesafe considers reliable and believes them to be true and correct. Sitesafe does not assume any responsibility for the accuracy of such items that were furnished by other parties. when conflicts in information occur between data provided by a second party and physical data collected by Sitesafe, the physical data will be used. 200 N. Globe Rood. suite 1080. Arlington, VA 22203-3728 703.276.110D. hdo@sff sore.com l�sitesaFe ,I compliance eeperts Appendix B — Assumptions and Definitions General Model Assumptions In this site compliance report, it is assumed that all antennas are operating at full power at all times. Software modeling was performed for all transmitting antennas located on the site. Sitesafe has further assumed a 100% duty cycle and maximum radiated power. The site has been modeled with these assumptions to show the maximum RF energy density. Sitesafe believes this to be a worst-case analysis, based on best available data. Areas modeled to predict emissions greater than 100% of the applicable MPE level may not actually occur, but are shown as a worst-case prediction that could be realized real time. Sitesafe believes these areas to be safe for entry by occupationally trained personnel utilizing appropriate personal protective equipment (in most cases, a personal monitor). Thus, at any time, if power density measurements were made, we believe The real- time measurements would indicate levels below Those depicted in the RF emission diagram(s) in this report. By modeling in This way, Sitesafe has conservatively shown exclusion areas- areas that should not be entered without the use of a personal monitor, canters reducing power, or performing real-time measurements to indicate real-time exposure levels. Use of Generic Antennas For the purposes of this report, the use of "Generic" as an antenna model, or "Unknown" for an operator means the information about a carrier, their FCC license and/or antenna information was not provided and could not be obtained while on site. In the event of unknown information, Sitesafe will use our industry specific knowledge of equipment, antenna models, and transmit power to model the site. If more specific information can be obtained for the unknown measurement criteria, Sitesafe recommends remodeling of the site utilizing the more complete and accurate data. Information about similar facilities is used when the service is identified and associated with a particular antenna. If no information is available regarding the transmitting service associated with an unidentified antenna, using the antenna manufacturer's published data regarding the antenna's physical characteristics makes more conservative assumptions. Where The frequency is unknown, Sitesafe uses the closest frequency in The antenna's range that corresponds to the highest Maximum Permissible Exposure (MPE), resulting in a conservative analysis. 100 N. Glebe Rood • Suffe IODD • Adinglon, VA 22203-3748 703.276.1100 • Inlo@sResole.com sitesafe rf compllonce experts DeBnffions 5% Rule -The rules adopted by the FCC specify that, in general, at multiple transmitter sites actions necessary to bring the area into compliance with the guidelines are the shared responsibility of all licensees whose transmitters produce field strengths or power density levels at the area in question in excess of 5% of the exposure limits. In other words, any wireless operator that contributes 5% or greater of the MPE limit in an area that is identified to be greater than 100% of the MPE limit is responsible taking corrective actions to bring the site into compliance. Compliance - The determination of whether a site is safe or not with regards to Human Exposure to Radio Frequency Radiation from transmitting antennas. Decibel (dB) - A unit for measuring power or strength of a signal. Duly Cycle - The percent of pulse duration to the pulse period of a periodic pulse train. Also, may be a measure of the temporal transmission characteristic of an intermittently transmitting RF source such as a paging antenna by dividing average transmission duration by the average period for transmission. A duty cycle of 100% corresponds to continuous operation. Effective (a Equivalent) Isotropic Radiated Power (EIRP) - The product of the power supplied to the antenna and the antenna gain in a given direction relative to an isotropic antenna. Effective Radiated Power (ERP) - In a given direction, the relative gain of a transmitting antenna with respect to the maximum directivity of a halt wave dipole multiplied by the net power accepted by the antenna from the connecting transmitter. Gain (of an antenna) - The ratio of the maximum intensity in a given direction to the maximum radiation in the same direction from an isotropic radiator. Gain is a measure of the relative efficiency of a directional antennas as compared to an omni directional antenna. General Population/Uncontrolled Environment- Defined by the FCC, as an area where RFR exposure may occur to persons who are unaware of the potential for exposure and who have no control of their exposure. General Population is also referenced as General Public. Generic Antenna - For the purposes of this report, the use of "Generic" as an antenna model means the antenna information was not provided and could not be obtained while on site. In the event of unknown information, Sttesafe will use our industry specific knowledge of antenna models to select a worst case scenario antenna to model the site. Isotropic Antenna - An antenna that is completely non -directional. In other words, an antenna that radiates energy equally in all directions. 200 N. Glebe Rood. SuBe 1000. A Unglon, VA 22203-3728 703.276.11 OD . Ir►o®sllesale.c M ffisitesafe rf comphonce experts Maximum Measurement -This measurement represents the single largest measurement recorded when performing a spatial average measurement. Maximum Permissible Exposure (MPE) -The rrns and peak electric and magnetic Field strength, their squares, or the plane -wave equivalent power densities associated with these fields to which a person may be exposed without harmful effect and with acceptable safety factor. Occupational/Conlrotied Environment- Defined by the FCC, as an area where Radio Frequency Radiation (RFR( exposure may occur to persons who are aware of the potential for exposure as a condition of employment or specific activity and can exercise control over their exposure. OEr Bulletin 65 -Technical guideline developed by the FCC's Office of Engineering and Technology to determine the impact of Rado Frequency radiation on Humans. The guideline was published in August 1997. OSHA (Occupational Safety and Health Administration) - Under the Occupational Safety and Health Act of 1970, employers are responsible for providing a safe and healthy workplace for their employees. OSHA's role is to promote the safety and health of America's working men and women by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual process improvement in workplace safety and health. For more information, visit www.0sha.gov. Radio Frequency Radiation - Electromagnetic waves that are propagated from antennas through space. Spatial Average Measurement -A technique used to average a minimum of ten (10( measurements taken in a ten (10( second interval from zero (0( to six (6( feet. This measurement is intended to model the average energy an average sized human body will absorb while present in an electromagnetic Field of energy. Transmitter Power Output (rPO) -The radio frequency output power of a transmitter's final radio frequency stage as measured at the output terminal while connected to a load. 200 N. Glebe Roatl • SURe 1000 • Adinglon, VA 703.276.1100 • Inlo®s0esale.c= ®sire afe ce evperts Appendix C - Rules & Regulations Explanation of Applicable Rules and Regulations The FCC has set forth guidelines in OET Bulletin 65 for human exposure to radio frequency electromagnetic fields. Specific regulations regarding this topic are listed in Part 1, Subpart I, of Title 47 in the Code of Federal Regulations. Currently, there are two different levels of MPE - General Public MPE and Occupational MPE. An individual classified as Occupational can be defined as an individual who has received appropriate RF training and meets the conditions outlined below. General Public is defined as anyone who does not meet the conditions of being Occupational. FCC and OSHA Rules and Regulations define compliance in terms of total exposure to total RF energy, regardless of location of or proximity to the sources of energy. It is the responsibility of all licensees to ensure these guidelines are maintained at all times. It is the ongoing responsibility of all licensees composing the site to maintain ongoing compliance with FCC rules and regulations. Individual licensees that contribute less than 5% MPE to any total area out of compliance are not responsible for corrective actions. OSHA has adopted and enforces the FCC's exposure guidelines. A building owner or site manager can use this report as part of an overall RF Health and Safety Policy. It is important for building owners/site managers to identify areas in excess of the General Population MPE and ensure that only persons qualified as Occupational are granted access to those areas. Occupational Environment Explained The FCC definition of Occupational exposure limits apply to persons who: • are exposed to RF energy as a consequence of their employment; • have been made aware of the possibility of exposure; and • can exercise control over their exposure. OSHA guidelines go further to state that persons must complete RF Safety Awareness training and must be trained in the use of appropriate personal protective equipment. In order to consider this site an Occupational Environment, the site must be controlled to prevent access by any individuals classified as the General Public. Compliance is also maintained when any non -occupational individuals (the General Publicl are prevented from accessing areas indicated as Red or Yellow in the attached RF Emissions diagram. In addition, a person must be aware of the RF environment into which they are entering. This can be accomplished by an RF Safety Awareness class, and by appropriate written documentation such as this Site Compliance Report. All Metro PCS Inc. employees who require access to this site must complete RF Safety Awareness training and must be trained in the use of appropriate personal protective equipment. 200 N. Glebe Bond • Sule 1000 • Arfingron, VA 22203.3728 703.276.1I00.ftde@sftesafe.com ffisilesafe if compliance experts Appendix D - General Safety Recommendations The following are general recommendations appropriate for any site with accessible areas in excess of 100% General Public MPE. These recommendations are not specific to this site. These are safety recommendations appropriate for typical site management, building management, and other tenant operations. 1. All individuals needing access to the main site (or the area indicated to be in excess of General Public MPE) should wear a personal RF Exposure monitor, successfully complete proper RF Safety Awareness training, and have and be trained in the use of appropriate personal protective equipment. 2. All individuals needing access to the main site should be instructed to read and obey all posted placards and signs. 3. The site should be routinely inspected and this or similar report updated with the addition of any antennas or upon any changes to the RF environment including: • adding new antennas that may have been located on the site • removing of any existing antennas • changes in the radiating power or number of RF emitters 4. Post the appropriate NOTICE, CAUTION, or WARNING sign at the main site access point(s) and other locations as required. Note: Please refer to RF Exposure Diagrams in Section 5, to inform everyone who has access to this site that beyond posted signs there may be levels in excess of the limits prescribed by the FCC. The signs below are examples of signs meeting FCC guidelines. nYpMrM•¢vMMICG w+ereso«eewe•n.0 QCAUTION MLb •e c•fie elm�e Or a xxxni Ice �w. a rownb,.n.. . I1 •ew . e•bl,qxxu' Mp. Nn.. e,ttNIMFCG Mexlp ebm�n e.s..w 5. Ensure that the site door remains locked (or appropriately controlled) to deny access to the general public if deemed as policy by the building/site owner. b. For a General Public environment the four color levels identified in this analysis can be interpreted in the following manner: • Areas indicated as Gray are at 5% of the General Public MPE limits or below. This level is safe for a worker to be in at any time. • Green represents areas predicted to be between 5% and 20% of the General Public MPE limits. This level is safe for a worker to be in at any time. 40011. Glebe Read • Sulle 1000 • Aelingion, VA 2120.9-3738 703.276.1100 • IMo®sffesale.com ..sitesafe rf compliance experts • Yellow represents areas predicted to be between 20% and 100% of the General Public MPE limits. This level is safe far a worker to be in at any time. • Red areas indicated predicted levels greater than 100% of the General Public MPE limits. This level is not safe for the General Public to be in. 7. For an Occupational environment the four color levels identified in this analysis can be interpreted in the following manner: • Areas indicated as Gray are at 5% of the Occupational MPE limits or below. This level is safe for a worker to be in at any time. • Green represents areas predicted to be between 5% and 20% of the Occupational MPE limits. This level is safe for a worker to be in at any time. • Yellow represents areas predicted to be between 20% and 100%of the Occupational MPE limits. Only individuals that have been property trained in RF Health and Safety should be allowed to work in this area. This is not an area that is suitable for the General Public to be in. • Red areas indicated predicted levels greater than 100% of the Occupational MPE limits. This level is not safe for the Occupational worker to be in far prolonged periods of time. Special procedures must be adhered to such as lock out tag out procedures to minimize the workers exposure to EME. 8. Use of a Personal Protective Monitor: When working around antennas, Sitesafe strong recommends the use of a Personal Protective Monitor (PPM). Wearing a PPM will property forewarn the individual prior to entering an RF exposure area. Keep a copy of this report available for all persons who must access the site. They should read this report and be aware of the potential hazards with regards to RF and MPE limits. Additional Information Additional RF information is available by visiting both ww,v.Sitesafe.com and www.fcc.gov/oet/rfsafety. OSHA has additional information available at: http://www.osha-slc.gov/SLTC/radiofrequencyrodiation. 2110 N. Glebe Ro0d • SURe 1088 • Arlington, VA 22203-3728 703.276.1100 • INOQSResole.00m