HomeMy WebLinkAboutDecision #4729February 12, 2020
Town of Yarmouth
Board of Appeals
1146 Route 28
South Yarmouth, MA 02664
Attn: Chairman Steven DeYoung
Re: Special Permit Petition No. 4729
1045 Route 28, South Yarmouth, MA
Chairman DeYoung,
Pursuant to Condition 12 of the Special Permit (Petition No. 4729), there was a requirement that the Petitioner, Cellco
Partnership d/b/a Verizon Wireless return for a one-year review to "assure compliance with the conditions and
maintenance of the new landscaping/plantings,"
Due to several factors, construction at the site did not begin until November 2019, and continues as of this time. The
proposed new plantings have not occurred to date, due to the construction start outside of the growing season. The intent
is to make the plantings and complete any remaining items of construction by Spring 2020.
1 would be happy to meet with the Board as required at its earlier convenience, or if it elected to wait until such time as
the plantings and landscaping improvements have occurred.
Please let me know if you have any questions or comments
Sincerely,
Sean Mahon y f
Project Manager
SAI Communications, LLC
Mobile: 603-212-6241
smahoney@saigrp.com
FILED WITH TOWN CLERK:
PETITION NO: 04729
Bk 31 190 p_S33 r a1627;3
04--10-2012 Q 09 R 23c.
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
March 19, 2018
HEARING DATE: February 22, 2018 and March 8, 2018
PETITIONER: Cellco Partnership d/b/a Verizon Wireless
PROPERTY: 1045-1067 Route 28, South Yarmouth, MA
Map & lot#: 0050.116 & 0050.117.1; Zoning District: B2 & VC 4
Book/Page: 1353115
MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Thomas Nickinello,
Richard Neitz, Susan Brita and Tom Baron.
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of
property as required by law, and to the public by posting notice of the hearing and publishing in The
Register, the hearing opened and held on the date stated above.
L PROCEDURAL HISTORY
On January 31, 2018 Ccllco Partnership d/b/a Verizon Wireless ("Petitioner" or "Applicant") fled
application with the Town of Yarmouth Town Clerk and Zoning Board of Appeals ("Board") to
obtain a Special Permit, and a Variance (if required), in accordance with the Town of Yarmouth
Zoning Bylaws ('Bylaws") and Massachusetts General Laws Chapter 40A and the
Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B) to construct a new stealth wireless
communications tower with accessory ground equipment, including a stand-by power generator,
behind the Post Office building located at 1045 Route 28, Assessor's Map 50, Lots 116 and 117.1
("Subject Property").
The following material was submitted with the Petitioner's application and was considered by the
Board in its deliberations and was made part of the record hereof and is incorporated herein by
reference:
1) Application for a Board of Appeals Public Hearing Accepted by the Town Clerk on
January 31, 2018,
2) Statement in Support of Application for a Special Permit Dated January 25, 2018.
3) Authorization from Applicant's Landlord to file Application.
4) field Card, Tax Map and Deed of Subject Property,
5) Copy of Applicant's FCC Licenses.
b) RF Report, RF Coverage Plots, and Map of Existing and Proposed Sites within 1 Mile of
Yarmouth Border prepared by C2 Systems dated January 2, 20I8.
7) RF Emissions Compliance Report prepared by Donald L. Haes, Jr., Ph. D, CHP, dated
December 13, 2017.
8) ASAC Airspace (FAA) Analysis dated 4-20-17.
9) Environmental Sound Assessment prepared by Modeling Specialties, dated December 19,
2017.
10) Real Estate Valuation Non -Impact Report by Real Estate Consultants of New
England dated December 15, 2017,
11) Narrative titled: Alternate Site Analysis — The Search Area Process,
12) Copies of the Applicant's Site Plan Review Approval and Design Review Approval and
prior Special Permit.
13) Removal Estimate prepared by Hudson Design Group dated January 16, 2018
14) Photos of area behind Post Office and Photo -simulations of proposed installation.
15) Site Plans and Elevation Drawings prepared by Hudson Design Group, with last revision
date of 1-22-18, consisting of Sheets T-1, C-1, C-2, C-3, C-4, C-5, A-1, A-2, A-3, A-4.
A duly advertised and noticed public hearing on the application was opened in the Yarmouth
Town Hall on February 22, 2018 when testimony began and was then continued to March 8, 2018
when the proceedings were concluded ("Hearings"). A quorum of the Board was present
consisting of Chairman DeYoung, and Mr. Nickinello, Mr. Martin, Ms. Brita, Mr. Neitz, and Mr.
Baron. The Petitioner was represented by Carl Gehring, of Gehring & Associates, LLC, as Agent
for the Applicant, and joined by Sean Mahoney (Verizon Wireless's Real Estate Department), Dr.
Donald Haes (Certified Health Physicist), Doug Sheadel (Acoustical Expert), and Dan Goulet
(Radio Frequency "RF" Engineer).
Mr. Gehring introduced the experts present and walked the Board through the contents of the
submitted Application materials. The RF Plots were displayed and certain significant coverage
gaps and network capacity issues were explained which justified the need for the new site. RF
emissions compliance with federal law was demonstrated and compliance with all applicable
noise regulations was demonstrated. Photosimulations were displayed which demonstrated how
the proposed installation might appear from different perspectives around the neighborhood. The
Applicant also clarified that the proposed generator would be diesel -fueled and that the Applicant
had already been in discussions with the Health Department regarding that office's requirements
for such an installation.
2
In addition to the aforementioned materials submitted with the Application, five (5) additional
Exhibits were submitted during the proceedings consisting of. 1.) Names of Expert Witnesses; 2.)
Color Chip initially chosen by the Design Review Committee; 3.) Crane Test Ad to prove
compliance; 4.) Additional Photosims based on the Crane Test; 5.) New Photosims representing
alternate colors and designs as requested by the Board.
The Board reviewed the submitted materials and had certain questions relative to the stand-by
generator, distance of the proposed pole to the Post Office, distance of the proposed pole to Old
Main Street, and why the original cupola idea that was the subject of a prior petition had failed.
The Board discussed the conditions of the Applicant's Site Plan Review Approval and Design
Review Approval and reiterated and ratified the mandate that certain new tree plantings be made
along the frontage of the Subject Property. The Board then took note of certain deficiencies in the
upkeep and condition of the Subject Property including the presence of a sink -hole off the
southeasterly end of the existing building on site.
Mr. Mealy, representing his brother who owns property immediately abutting the Subject Property
to the east, spoke in favor, but respectfully requested that a new lot -line fence be erected between
their land and the proposed tower to further shield the proposed development. Mr. Healy also
requested the Petitioner reach out to its Landlord to request the on-site dumpster emptying
schedule be modified to prohibit that activity prior to 7AM as it has been causing a disturbance to
the nearby residents.
No parties spoke in opposition to the Petition.
Letters from three residents were read into the record expressing concerns over noise, traffic and
potential impact to the neighborhood.
Discussions ensued among the Board and Applicant relative to the maintenance and upkeep of the
Subject Property, the need to fix the sink -hole, the need to modify the dumpster schedule, and the
color and design of the pole was discussed. The Applicant volunteered to build the fence
requested by their neighbor Mr. Healy and also agreed to supply additional landscape plantings in
the front parking lot island in addition to what had been required by the Design Review
Committee.
After the close of the Hearing the Board deliberated and discussed conditions of approval and
discussed the pros and cons of different colors of the proposed pole. At the conclusion of those
deliberations, the Board moved, seconded and voted unanimously to grant the Special Permit and
requested Height Waiver pursuant to this written Decision.
3
Il. FINDfNGS
a.) General Findings:
The Subject Property is located in the B2 and VC -4 Zoning Districts where Wireless
Communications Facilities are allowed by Special Permit.
The proposed installation will consist of antennas hidden inside a single 70 -foot tall stealth
monopole (tower) structure and accessory equipment, including a diesel -fueled stand-by power
generator on -grade at the base of the tower surrounded by an 8 -foot tall solid fence as required by
the Design Review Committee. No water or sewer services are needed for this unmanned,
unoccupied installation.
The Applicant is an FCC Licensed Personal Wireless Service Provider and as such is afforded
certain protections under federal law pursuant to the Telecommunications Act of 1996.
b.) Wireless Criteria & Findinas
Section 408 of the Bylaw enumerates various criteria for the application and siting of a Wireless
Communication Facilities.
It was noted that the Board has the authority under Section 408.4.1 of the Bylaw to alter or waive
Bylaw requirements if doing so will not derogate from the intent of the Bylaw.
The Applicant requested waivers from certain provisions it deemed inapplicable to the subject
Petition and the Board concurred under its aforementioned authority.
The Applicant also specifically requested a Height Waiver, in lieu of the need to obtain a
variance, and the Board concurred and granted that waiver.
It was found that the Applicant has certain significant gaps in its wireless coverage in the vicinity
of the Facility as demonstrated by the submitted RF Plots and that said gaps could be alleviated
by installing antennas as shown of the submitted plans.
It was found that the proposed unmanned, unoccupied installation will have no environmental
impacts or impact on traffic, safety, or neighborhood character. The Board debated the aesthetics
of the proposed pole and chose that it be constructed as a white "flag -pole' style complete with a
gold ball on top to prevent birds from nesting. It was understood and agreed that no flag would
actually be flown from the structure. This style was deemed the least visually obtrusive to the
neighborhood.
Therefore, upon review of the Applicant's written application and supporting material, combined
with testimony, clarifications and explanations given at the Hearing(s), it was considered and
determined that the Applicant met all of the required criteria of the Bylaw relative to both its
application submittals as well as the specific siting criteria and design standards enumerated in the
Bylaw that pertain to its proposed installation.
4
c.) Special Permit Criteria & Findings
In addition to the specific Wireless Communication Facilities criteria the Board also considered
the general Special Permit criteria of Section 103 of the Bylaw which include the consideration of
the following:
"Special permits shall not be granted unless the applicant demonstrates that no undue nuisance,
hazard or congestion will be created and that there will be no substantial harm to the established
or,future character of the neighborhood or town. In addition, individual sections of the Zoning
Bylaw contain supplemental special permit criteria for specific uses and types of development. "
The Board considered these criteria and determined the proposed installation will create no
nuisance, hazard, congestion, or harm to the surrounding neighborhood or Town. Furthermore,
the white flagpole style tower was considered appropriate and visually less intrusive as it could
actually become a landmark of sorts.
Therefore, upon review and consideration of the Applicant's submitted material and testimony
offered at the Hearing the Board unanimously determined that the proposal meets the specific
special permit criteria and submittal requirements as enumerated in the Bylaw.
III. Decision and Conditions
Based on the above Findings the Board moved, seconded and voted unanimously to grant the
Applicant's Special Permit subject to the following conditions:
1.) The Applicant shall plant certain new trees on the Subject Property as mandated and
specified in the Applicants Site Plan Review Approval and Design Review Approval.
2.) 1n addition to the trees referenced in Condition 1, the Applicant agrees to plant new
low shrubbery in the front parking lot island along Route 28 in front of the Post Office.
3.) Routine testing of the stand-by generator shall only occur between LOAM and 2PM on
weekdays.
4.) The Applicant shall be responsible for obtaining all its other necessary and required
permits including a Building Permit.
5.) The Applicant shall comply with all Board of Health and fire Department
requirements relative to the proposed diesel generator.
6.) The Applicant shall file a revised set of Plans showing the new generator with the
Board of Appeals.
7.) The Applicant shall work with the Landowner to fix the sink -hole in the parking lot to
the south of the Post Office building near the southeasterly Forest Road entrance to the
site and as shown marked with an orange cone on the first page of the photosimulations
marked and submitted as Exhibit 5. This work must be completed before the tower
becomes operational.
8.) The Applicant shall erect a 6 -foot tall cedar stockade fence for a length of 200 feet
along the Subject Property's easterly boundary with Mr. Healy, continuing from Healy's
existing fence and progressing southward along the property line, but erected entirely on
the Subject Property. The Applicant shall be required to maintain that new fence.
9.) Other than what might be required to erect the fence in Condition 8, there shall be no
additional tree clearing in the vicinity of the proposed tower.
10.) The Applicant shall work with the Landowner to modify the on-site dumpster
schedule so no emptying activity will occur before 7AM.
11.) The stealth tower shall be colored white and fitted with a traditional flag -pole gold
ball on top. The top of the flat portion of the monopole shall not exceed 70 feet. The gold
ball shall project above 70 feet to the extent required. No flag halyard shall be rigged and
no flag shall be flown from the pole.
12.) Applicant shall return for a one year review to assure compliance with the conditions
and maintenance of the new landscaping/plantings.
Motion was made by Mr. Nickinello and seconded by Mr. Baron that the Variance be withdrawn
without prejudice.
Motion was made by Mr. Nickinello and seconded by Mr. Baron to approve the grant of the
Special Permit with the stated conditions and including the height waiver. Motion carried
unanimously.
No permit shall issue until 20 days from the tiling of this decision with the Town Clerk. This decision
must be recorded at the Registry of Deeds and a copy forwarded to the Board of Appeals. Appeals
from this decision shall be made pursuant to MGL c40A section 17 and must be tiled within 20 days
after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein, the Special
Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw, MGL c40A
§9)
2 Li �_ �E)
Steven DeYoung, Chathivdn
n
Appeal #4729
COMMONWEALTH OF MASSACHUSETTS
TOWN OF YARMOUTH
BOARD OF APPEALS
Date: April 9, 2018
Certificate of Granting of a Special Permit
(General Laws Chapter 40A, section 11)
The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special
Permit has been granted to:
PETITIONER: Cellco Partnership d/b/a Verizon Wireless
c/o Gehring & Associates, LLC
P.O. Box 98, West Mystic, CT 06388
OWNER: Mary A. Mullen
With ground lease to Leasehold Inc.,
c/o Dennis Conry, Esq., 245 Main St., Wareham, MA
Affecting the rights of the owner with respect to land or buildings at: 1045-1067 Route 28, South
Yarmouth, MA Zoning District: B2 & VC -4; Map & Lot#: 0050.116 & 117.1; Book/Page:
1353115 and the said Board of Appeals further certifies that the decision attached hereto is a true
and correct copy of its decision granting said Special Permit, and copies of said decision, and of
all plans referred to in the decision, have been filed.
The Board of Appeals also calls to the attention of the owner or applicant that General Laws,
Chapter 40A, Section 1 l (last paragraph) and Section 13, provides that no Special Permit, or any
extension, modification or renewal thereof, shall take effect until a copy of the decision bearing
the certification of the Town Clerk that twenty (20) days have elapsed after the decision has been
filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been
filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and
district in which the land is located and indexed in the grantor index under the name of the owner
of record or is recorded and noted on the owner's certificate of title. The fee for such recording
or registering shall be paid by the owner or applicant.
evc��ohairman
OF Y
TOWN OF YARMOUTH
x Town
YA1"M CHEESE 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Clerk
"AM 0 Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836
CERTIFICATION OF TOWN CLERK
1, Philip B. Gaudet, III, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have
elapsed since the filing with me of the above Board of Appeals Decision #4729 that no notice of
appeal of said decision has been filed with me, or, if such appeal has been filed it has been
dismissed or denied. All appeals have been exhausted.
BARNSTABLE REGISTRY OF DEEDS
John F. Meade, Register