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HomeMy WebLinkAbout2011-08-02 Planning Board Supplemental Materials (26) 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: August 2, 2011 Date of Hearings: July 5, 2011, August 2, 2011 Date of Decision: August 2, 2011 Application of: Bell Atlantic Mobile of Mass. Corp. Ltd d/b/a Verizon Wireless Premises Affected: 5 Boston Street Map 107C, Parcel 11 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 5 Boston Street. (a/k/a Boston Hill). The Special Permit was originally granted by the North Andover Planning Board on May 17, 2005 and a renewal was granted on July 16, 2008. nd , the Planning BoardAPPROVES Upon a motionby X and a 2 by X hereby the Wireless Special Permit, renewal of a by a vote of X in favor and 0 against. ___________ ___________ On behalf of the North Andover Planning Board John Simons, Chairman Timothy Seibert Michael Colantoni Rickey Glover 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 5 Special Permit Renewal 5 Boston Street Verizon August 2, 2011 Boston Street. (a/k/a Boston Hill) and ancillary equipment located inside the existing structure. The renewal of the Special Permit was requested by Carl Gehring, Esq., Agent for . This application and Bell Atlantic Mobile of Mass. Corp. Ltd d/b/a Verizon Wireless additional documentation as cited herein was filed with the Planning Board on May 20, 2011, 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 and modification 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 March 8, 2011, authored by Donald L. Haes, PhD. The conclusion stated in the reports is that the applicant’s Wireless Facility installation contributes a maximum RF exposure of less than two-tenths of one percent of the current State and Federal permissible exposure guidelines. b)The Federal Telecommunications Act of 1996 takes precedence over the North Andover Zoning Bylaw. In the recent Essex County Superior Court case of Fournier, et al. v. North Andover Planning Board ,et al., the Plaintiffs' (neighbors of the wireless facility) challenge to this Board's action in granting a special permit was on the basis of a 600 foot setback provision in the zoning bylaw, and in dismissing that case, the Court was clear that the 600 foot setback did not control because the Court found that the Federal Telecommunications Act of 1996 “compelled” (the Court's word) this Board to grant the special permit. Similarly, in the context of this particular application where the applicant has filed satisfactory current technical reports and otherwise filed sufficient information to the Board's satisfaction, if this Board were to deny the special permit here the Board would, in the words of the Federal Telecommunications Act of 1996, be taking actions that “prohibit or have the effect of prohibiting the provision of personal wireless services” and this Board has no intention of violating that federal law. c) 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 providedthe following conditions are met: 2 Special Permit Renewal 5 Boston Street Verizon August 2, 2011 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 abandonmentor 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 fromthe 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 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: three a)A SpecialPermit issued for this wireless service facility shall be valid for (3) years from the date of the decision for the Special Permit renewal. The special 3 Special Permit Renewal 5 Boston Street Verizon August 2, 2011 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 dateof 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)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)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. 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: Application Titled a): Application for Special Permit Renewal Bell Atlantic Mobile of Mass. Corp. Ltd d/b/a Verizon Wireless 400 Friberg Parkway Westborough, MA 01581 Documentation Submitted: b) 4 Special Permit Renewal 5 Boston Street Verizon August 2, 2011 1Narrative dated May 10, 2011 2 Special Permit Application 3Statement of Support of Application & Waivers Request 4Copies of Original and Renewed Special Permit 5Evidence of Lease 6Certificate of Insurance 7RF Affidavit 8RF Emissions compliance Certification 9Noise Compliance Certification 10Photo of Installation 11Plans 12Exhibit 1 United States District Court For the District of Massachusetts Final Judgment and Order 13Letter from Benjamin G. Farnum dated May 10, 2011 RE: Evidence of Lease and Landowner’s Consent to File for Renewal of Land Use Permits 5