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Home My WebLink About5005 1044 Route 28 Remand Decision Certified 03.03.26 Conditions on Page 8Y. c °RPo enrea �,�' NIGUTH TOWN CLERK WC 14IRR 3RV�WW.TOWN CLERK: PETITION NO: HEARING DATES: PETITIONER: PROPERTY OWNER: TOWN OF YARMOUTH BOARD OF APPEALS DECISION March 3, 2026 5005 February 12, 2026 (Remand Hearing) Blue Sky Towers III, LLC dba BSTMA, LLC Roman Catholic Bishop of Fall River PROPERTY: 1044 Route 28, Yarmouth, MA Map & Lot #: 50.189.1 Zoning District: B-2, HMOD-1, VC-3 Title: Book 669; Page 144 MEMBERS PRESENT AND VOTING: Chairman Sean Igoe, Richard Martin, John Mantoni, Barbara Murphy, and Anthony Panebianco 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 Cape Cod Times, the hearing opened and held on the date stated above. Previously, the Petitioner sought a Special Permit pursuant to Yarmouth Zoning Bylaw § 103.2.2 and §408 to construct a 110-foot wireless telecommunications facility tower. The Board issued a Denial on September 11, 2023. Such Denial was appealed to the Massachusetts District Court by the Petitioner. This hearing is conducted pursuant to an Order of Remand, dated January 5, 2026, from the Massachusetts District Court, Case No. 1:23-cv-12334. The Petitioner seeks to facilitate a resolution of the appeal from said decision with the Town of Yarmouth. In considering this matter on remand, the Board incorporates findings from the previous hearing and hereby recites the same for clarity. EVIDENCE: All documents and testimony in this proceeding are maintained in the Board record. Without detailing all of the documented evidence here, the Board hereby notes that it has reviewed the applicable materials presented in connection with the Petition. The Board has further reviewed additional correspondence and materials, including but not limited to: A E:COP EST ,. n. . � . s. f , CMMa 1 E)fiC 1 CWN CLL;RK s I I�R 2 5 2026 f N • Alternative Site Analysis Spreadsheet and Map submitted by Applicant via Attorney Sousa on July 11, 2023. • Isotrope Report on Blue Sky Towers Tower Petition 5005 submitted by David Maxson on June 30, 2023. At the March 9, 2023 public hearing, and on behalf of the petitioner, Attorney Ricardo Sousa presented an overview of the proposed project. Blue Sky Towers is a company that is in the business of building infrastructure to accommodate wireless antenna installations for FCC - licensed wireless companies, such as the two co -applicants: T-Mobile and AT&T. The Petitioner has applied for a Special Permit per § 103.2.2 and §408 to construct a I I0-foot, 3 sided wireless telecommunications facility clock tower to accommodate 2 wireless antenna installations in order to fill a gap in coverage in the vicinity of the property. The Petitioner is also seeking certain waivers from sections 408 of the By-law. Section 103.2.2 of the By-law states that, a special permit 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. Section 408, addresses Communication Antennas, Buildings and Towers. 408.1 Purpose. The purpose of this By-law is to establish guidelines for the siting of all communication antennas, communication buildings, and communication towers in the Town of Yarmouth. The waivers sought by the Petitioner fall under section 408 and are as follows: Sec 408.7.1, "Only self-supporting monopole type towers are permissible. 408.7. 1 General. All communications facilities shall be designed and sited as to have the least adverse visual effect on the environment. 408.7.5.1 Scenic Landscapes and Vistas- Personal Wireless Service Facilities shall not be located within open areas that are discernable from public roads, recreational areas, or residential development. 408.7.6.1 Height, General. Regardless of the type of mount, Personal Wireless Service facilities shall be no higher than ten feet above the average height of buildings within 300 feet of the proposed facility. 408.7.6.2 Height, Ground Mounted Facilities. Ground -mounted Personal Wireless Facilities shall not project higher than 10 feet above the average building height or, if there are no buildings within 300 feet, these facilities shall not project higher than 10 feet above the average tree canopy height. RUE ATTEST: 5OWN CORK 'M j 3 The Petitioner seeks to locate the proposed 110 ft. 3-sided Personal Wireless Service Facilities (PWSF) along Rte. 28 in an open area along the main commercial corridor which would be highly visible looking from every direction. Prior to appearing before the Zoning Board of Appeals (ZBA), the project was vetted through Site Plan Review. Community Development and Planning expressed serious concerns about the height, location and aesthetics of the cell tower in a highly visible location within the town's main commercial corridor. They further opined that "the applicant's attempt to address the aesthetic concerns of this highly visible site by designing the tower to simulate a clock tower is highly inadequate. The design as presented reads like a large sign from a freeway and lacks the appropriate level of detail and design elements." Photographs submitted by the Petitioner shows just how imposing the proposed tower would be when viewed from both close and afar. The Cape Cod Commission (CCC) reviewed the project and determined it to be a Development of Regional Impact (DRI). The Petitioner presented to the CCC a proposal for a 120 ft. monopole cell tower to be located at the proposed site. The CCC approved the project on January 10, 2022. The proposed cell tower the Petitioner has presented to the ZBA is for a 110 ft. 3-sided clock tower design, not the 120 ft. monopole cell tower as presented to the CCC. Attorney Sousa presented renderings of a sample of the RF (radio frequency) transparent material for the 110 ft., 3 sided clock tower design. He discussed potential occupancy of the tower, the configuration of the site, landscaping and setbacks and the need for the proposed structure, specifically to address a gap in coverage. The Board expressed concern that the cell tower as proposed would be located right along the Rte. 28 corridor in the heart of the town and that its proposed height, that being 3 times the allowed height in the zoning district, and its towering mass would have an overbearing visible and negative impact that could be seen from almost every surrounding sight line. Additionally, the Board expressed concern that the fall zone of the proposed cell tower encompasses approximately 50%' of the adjacent church parking lot, as well as a residential property to the northeast. Section 408.7.8 Fall Zones states, Communication towers, whether free-standing or part of another structure or building, must be set back from all property lines by at least the total height of the tower structure and its appearances. Attorney Sousa seemed to downplay the fall zone concerns and instead responded that the tower is designed to meet the Massachusetts high wind and structural standards. The Board inquired as to whether there may be alternative sites that would be more suitable than the one proposed. TRUE COPYT A17ES &t�ea Aq#M44 UAW / CMC / TOWN CLERK MAR 2 5 2026 The Petitioner presented the Board with a map showing a number of acceptable alternative sites that they claimed to have investigated and/or made attempts to contact the owners in order to inquire whether they would be interested in hosting the cell tower. The Petitioner represented that they sent certified letters to each of the owners of the possible alternative sites and essentially heard back from no one except the owners of the proposed site. One such site that the Petitioner labeled as acceptable was located approximately 1500 feet off Rte. 28. (The Skull Island Property) Skull Island is an amusement park whose property runs approximately 1500 feet in off Rte 28. The Board agreed that this would be a much more suitable site and that given its distance from Rte. 28 would appear to be shorter than its actual height and less visible. Mr. Igoe inquired of the Petitioner whether they had spoken with the owners of the Skull Island site. The Petitioner stated that they had only sent a certified letter and that it was returned as unsigned for. Mr. Igoe asked if the Petitioner would be willing to attempt to reach out to the owners again. The Petitioners replied that they would make another attempt to reach them. The Board also inquired as to whether the Petitioner had considered erecting a number of smaller towers placed in various locations that would achieve the same goal and thus negating the need for the 110 ft. clock tower. The Petitioner stated that they hadn't. The Board and the Petitioner agreed to continue the hearing for the purposes of the Board hiring a peer review consultant and for the Petitioner to investigate other locations, including the Skull Island property. At the July 13, 2023 continued hearing, peer review consultant David Maxson from Isotrope, LLC presented the findings from his June 30, 2023 Report to the Board. Mr. Maxson summarized the discussion from the prior meeting regarding alternative locations with potentially less visual impact on the community. Mr. Maxson referenced the need for additional facilities in the area to provide an appropriate level of competitive service and that it would likely require four concealed -antenna -monopoles to replace the proposed cell tower and that they would provide greater coverage than the proposed tower and wouldn't require DRI review but noted it was a matter of community preference whether to favor fewer tall multicarrier towers or more, shorter camouflaged poles. Mr. Igoe asked Attorney Sousa if the Petitioner would consider 4 shorter concealed monopoles placed at various locations as an alternative to the proposed 3 sided 110 ft. tower. Attorney Sousa stated that they would not be in favor of this alternative because it would require 2 poles per carrier. Attorney Sousa also stated that they may have up to 4 carriers interested in placing antennas on the proposed 110 ft tower. Their application and prior representation was that it would be for AT&T and T-Mobile only. TRUE COPY ATTEST: Y)�V. WUdjZCj4 CW0 I CMC 1 TOWN CLERK MAR 2 5 2026 Mr. Igoe asked Attorney Sousa if they would need a 110 ft tower if they were only providing coverage for AT&T and T-Mobile. Attorney Sousa failed to respond to Mr. Igoe's question and instead stated "We want to be able to maximize revenue on this site." It appears that the Petitioner is seeking the construction of the 110 ft. tower for not only AT&T and T-Mobile but so that they have the ability to solicit additional carriers in the future for this site. Mr. Igoe asked Attorney Sousa if they had made any further attempts to contact the owners of their acceptable alternative sites, including the Skull Island property owners, as they agreed to at the prior hearing. Attorney Sousa stated that they had not and confessed that to agree to an alternative site other than the one proposed would require them to start the process all over again, that they were unwilling to do that, and the only site that they would be pursuing is the one before the Board. The Board then received comments from the public. No one spoke in favor of the project. Richard Neitz of South Yarmouth expressed disappointment that the Town has not offered Town -owned property as an alternative site to this location and that the Petitioner did not do enough to explore alternative locations. Mr. Neitz questioned whether the lease with the property owner (Our Lady of the Highway Church) covers the entire site. The Petitioner responded that there is a lease for the exact location of the parcel where the tower is to be located, not the entire church property. Attorney Jamie Veara spoke on behalf of Davenport Realty Trust and stated that the application does not meet the criteria for a special permit and that the tower is both an undue hazard and nuisance. He reiterated the Board's concerns that the cell tower was located within the required fall zone and that it had the potential to fail and fall. He reminded the Petitioner that while they may not have concerns about the cell tower falling, that's the reason the by-law requires a fall zone. He also cited a May 23, 2021 and August 3, 2021 report to the Cape Cod Commission (CCC) where the needs of the carriers were analyzed and which stated that the needs of both AT&T and T-Mobile could be met by the existing 276 ft. XTK radio tower in West Yarmouth and the Whites Path tower in South Yarmouth, and/or alternative locations, and that the Consultant's (Maxson's) reports that were submitted to the Cape Cod Commission should be part of the record. Mr. Igoe inquired whether AT&T and T-Mobile could use the existing XTK radio tower in West Yarmouth along with a combination of smaller towers to solve the "Gap Coverage," as opposed to constructing the proposed 110 ft tower. Attorney Sousa replied, "That would be a different analysis," otherwise he failed to answer the question. Mr. Maxson interjected and stated that the Petitioner could solve their "Coverage Gap" by using the existing XTK radio tower along with a combination of smaller towers. A TRUE COPY ATTEST. ��V. &dn� CMNI I CMC I TOWN CLERK MAR 2 5 2026 Attorney Sousa stated the other sites were not suitable and explained that this is the only viable location to accommodate colocation and address the gap. When asked if the proposed tower would satisfy the entire coverage gap, Attorney Sousa responded that it would fill most but not all of the gap in coverage. When pressed by the Board, Attorney Sousa conceded that "none of these networks work perfectly. It cannot fill an entire gap. If you allowed us to build a 150 ft. tower or 190 ft. tower, I believe we could cover that gap south of Rte. 6, but not at 110 ft." The evidence and testimony suggests that the carriers themselves who actually provide the coverage would have alternatives to the proposed site to meet their coverage needs and that it's more a case of the Petitioner Blue Sky Towers' desire to construct a cell tower, than an imperative need for the carriers to have a tower at this location. As the Petitioner stated Blue Sky Towers owns the tower, the carriers are merely their tenants. Mr. Igoe asked if the proposal meets the criteria of the bylaw without obtaining the requested waivers. Attorney Sousa responded that it did not, but that he believed the Board must grant them. Mr. Igoe closed the hearing to public discussion and asked for Board deliberation. The Board expressed dismay that the Petitioner was unwilling to pursue or consider alternative and more suitable sites for not only the 110 ft. tower, but also shorter yet more numerous monopole cell towers that would be less noticeable and could be placed in more suitable locations. Additionally, the Board felt that the Petitioner failed to do their due diligence in seeking alternative sites and to also take into account the Town's overwhelming opposition to the project at its proposed location. The Board was in agreement that the Petitioner had failed to meet the criteria under Section 103.2.2 of the by-law that states, a special permit 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. The cell tower as proposed would be located right along the Rte. 28 corridor in the heart of the town. At 110 ft. tall, it's 3 times the allowed height in the zoning district, and its 3-sided towering mass would have an overbearing visible and negative impact on the small businesses and residential properties that make up the immediate zoning district. Its presence would be completely out of character with its surroundings and visible from almost every sight line. Moreover, if built, it would create a potential danger to the public due to both the adjacent church parking lot as well as a residential property to the northeast being located within the proposed cell tower's fall zone. The Petitioner is not entitled to the waivers they seek for the following reasons: Section 408.7.8 Fall Zones states, Communication towers, whether free-standing or part of another structure or building, must be set back from all property lines by at least the total height of the tower structure and its appearances. A TRUE COPY ATTEST. - �&V. &419X� CM AC CMC / TOWN CLERK MAR 2 5 ZON The cell tower as proposed fails to meet the fall zone requirements in that 50% of the church parking lot and approximately 31 ft. of the residential property to the Northeast are located within the Petitioner's fall zone. This violates the requirements of section 408.7.8 and would create a potential public danger and hazard. Section 408.7.1, "Only self-supporting monopole type towers are permissible. The Petitioner is seeking a 3-sided cell tower, not a monopole type tower. This is not permissible under the by-law. In order for the Board to grant such relief, the Petitioner would need to seek a variance. The Petitioner has not requested variance relief. 408.7.5.1 General. All communications facilities shall be designed and sited as to have the least adverse visual effect on the environment. The Petitioner's proposed 3-sided cell tower is 110 ft in height, would be highly visible, and nearly unobstructed from every direction. It would have an overwhelming presence, tower high above every building and tree surrounding it, and would be impossible to hide or camouflage. If constructed, it would no doubt have an adverse effect on the environment. 408.7.5.1 Scenic Landscapes and Vistas- Personal Wireless Service Facilities shall not be located within open areas that are discernable from public roads, recreational areas, or residential development. The proposed cell tower is located adjacent to a church parking lot and right along Rte. 28 at one of the Town's busiest intersections. It would have little, if anything, obstructing its view and be unavoidably visible from all roads and sight lines that surround its location. 408.7.6.1 Height, General. Regardless of the type of mount, Personal Wireless Service facilities shall be no higher than ten feet above the average height of buildings within 300 feet of the proposed facility. The proposed cell tower would project approximately 70 ft above the average building height within 300 ft. 408.7.6.2 Height, Ground Mounted Facilities. Ground -mounted Personal Wireless Facilities shall not project higher than 10 feet above the average building height or, if there are no buildings within 300 feet, these facilities shall not project higher than 10 feet above the average tree canopy height. The proposed cell tower would project approximately 70 ft. above the average building height and 80 ft. above the tree canopy at its proposed location. The Petitioner's proposed cell tower at its proposed location runs contrary to the purpose and intent of the by-law as discussed above. Moreover, to grant the waivers would result in an undue nuisance, hazard and congestion and would create substantial harm to the established and/or &JTRUE COPY ATTEST: nwe. AA4#,� C.MMO / CMC / TOWN CLERK MAR 2 5 2026 future character of the neighborhood and town. For these reasons, the Petitioner is not entitled to the waivers that they seek. At the February 12, 2026 remand hearing, Attorney Matthew Provencher, appeared on behalf of the Town of Yarmouth, and Attorney Earl Duval, assisted by Sean Gormley, Program Manager, Blue Sky Towers, appeared on behalf of the petitioner. Attorney Duval presented an overview of the proposed revisions to the tower. The changes include reducing the height of the tower from 110 feet to 93 feet and revising the tower design to a monopole style. This Board also reviewed the Monopole Tower Plans submitted for this hearing. As such, the Monopole Tower Plans, revised January 29, 2026, are hereby incorporated in their entirety by reference, and are also attached hereto. After questions from the Board and discussion with the Petitioner, a motion was made by Mr. Panebianco, seconded by Mr. Mantoni, to grant the request for a Special Permit, subject to the following conditions: 1) The Petitioner shall file a notice of project change with the Conservation Commission, per Special Condition 5 of the Order of Conditions, SE8-2382, dated April 13, 2023; 2) The Petitioner shall retain the galvanized gray color for this 93-foot, monopole -style tower; 3) The Petitioner shall secure a bond to guarantee that sufficient funds are available to properly dismantle, remove and dispose of the tower and all associated structures, in the event that either the use of the tower fails to commence or that the use of the tower ceases for two years; 4) The Petitioner shall submit a final Planting Plan with a two-year Landscape Maintenance Plan, to the ZBA, for consistency with this Decision; 5) The Petitioner shall replace any dead plantings as part of ongoing landscape maintenance; and 6) The Petitioner shall install no more than three (3) carriers, other than the Town, on the tower. If the Petitioner desires to install more than three (3) carriers, other than the Town, on the tower, the Petitioner shall return to the Board to seek further relief. The members voted as follows: Mr. Martin: AYE; Mr. Mantoni: AYE; Ms. Murphy: AYE; Mr. Panebianco: AYE; Chairman Igoe: AYE. The motion was voted 5-0 in favor. Therefore, the Special Permit, with the stated conditions, was granted. No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice-Accision 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 § 103.2.5, MGL c40A §9) Sean Igoe, Chairman 1'' A-IRUE COPY ATTEST CMMC / CMC / TOWN CLERK MAR 2 5 2026 CERTIFICATION OF TOWN CLERK I, Mary A. Maslowski, 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 #5005 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. Mary A. Maslowski, MMC, CMMC MAR 2 5 2ac6 A TRUE COPY ATCEST• CM= r cM MAR 2 C�K Wall `III SH3Mo L d ski c and err ASS mie 'o m 'm VAM nr WN 3 r _ ergg N iol ° a m� a ss, W RAW YMI SSllOV7I r a�as i ►Cl4-#7# wn" six e # o sxocnm v.o or 8i/1g18II AJ(AS SIXl1IS � g $ ! NI111Wa3d Wuona1SNOO e G 50 # sP 0 ai n gLgz; LL •i a }r 7 1a � V J to O q* N CM Wo w aa0�� N CC=o D W C ' 0 J w N2Na J W �zW>a..Z Zwc�2o O WNC0 � aN F _Y O€3a Y d La wi ] 1 olioR LL g g OZ. min mnJZi o+mmi�"nv�iW�" W Q oCL s o e e fg W C - �M� Cm i kn W� Yoh PRE v bl �W7Yi : do" �px ffi'��'bl W b g V i n e N W a% 3 o w W a Yc ? 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COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH BOARD OF APPEALS �RpORA7Efl� Petition #: 5005 Date: March 24, 2026 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: Blue Sky Towers III, LLC dba BSTMA, LLC PROPERTY OWNER: Roman Catholic Bishop of Fall River Affecting the rights of the owner with respect to land or buildings at: 1044 Route 28, Yarmouth, MA; Map & Lot #: 50.189.1; Zoning District: B-2, HMOD-1, VC-3; Title: Book 669; Page 144 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 11 (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. Sean Igoe, Chairman 19P. �4TTE5T: . r,� At _ / [; ('i�.1 J�N CLERK lAR 3