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HomeMy WebLinkAbout2015,2039,2059 SERVICE ROAD c;L6 3 Town of Barnstable Planning Department Staff Report Appeal No. 1996-32 - Midcape Communications, L.P. Special Permit Section 4-4.5 (2) - Expansion of a Pre-Existing Non-Conforming Use- Radio Tower Date: April 03, 1996 To: Zon' d f Appeals From: Robert ernig, Director Art Traczyk Principal Planner Applicant: Midcape Communications,L.P. W. �. Property Address: as 2015,2039 and 2059 Service Road, CerttervM,MA Assessor's Map/Parcel 214-008, 009; &010 Area 5.26 Acres Zoning: RF- Residential F District Groundwater Overlay: GP Groundwater Protection District Special Permit Section 4-4.5 (2)- Expansion of a Pre-Existing Non-Conforming Use -to replace and enlarge an existing radio tower and to relocate transmission/equipment building Filed Feb.06 1996; Public Hearing April 10, 1996, Decision Due 90 days • Locus: The locus of this appeal is three adjourning parcels totaling 5.26 acres and located off of the Service Road in close proximity to Cap'n'Jack's Road. The site is presently the location of an existing Commonwealth Electric public utility tower and is bounded on the south by Commonwealth Electric Company transmission e lines easement. Public Notice Comment: The locus has been cited in the application and advertised as being in Centerville however the location appears to be completely within West Barnstable. Because of the location and straight line delineation of the village lines in this'area of town, precise boundaries are not recognizable on the ground as in other village boundaries that may follow natural features that are recognizable such as river ways. The Board should determine if this reference in the public notice should constitute readvertising. It.should be noted that the correct Assessor's Map and Parcel were cited in the advertisement. The time period for holding the public hearing in this appeal expires on April 11, 1996. If the Board determines there was a defect in the advertisement, an extension of time to hold the public hearing will be required. Also, an extension for filing of the decision should be executed at this time. Background: At present there exists on site a public utility tower of 240 feet in height. The applicant is proposing to remove that tower and to rebuilt a new tower of 420 feet in height. The base location of the tower will also be changed to a more central location on the two northeasterly lots. Department Comments: The tower that now exists appears to have been built approximately 25 years ago (1971) as cited by the • applicant's representative at site plan review. Was this tower built under the provisions of MGL Chapter Planning Department-Staff Report Appeal No. 1996-32-Midcape Communications, L.P. 40A Section 3? That section permits"Land or structures used, or to be used by a public service corporation may be exempted in particular respects from the operation of a zoning ordinance or by-law ...". • It is important to the Board to know when and how the existing tower was built, for what reason it was built and the date the non-conformity.occurred. This information is needed to prove the "legal pre-existing non- conformity of the existing structure and its use." The information should be incorporated into the Boards findings that the applicant is seeking the proper relief for a Special Permit under Section 4-4.5(2) - Expansion of a Pre-Existing Nonconforming Use. It is important to note that a public utility tower on its own may not constitute a non-conformity in use or in structure as provided for in MGL Chapter 40, Section 3. What commercial use is being made of the tower and how did that occur on the tower or what might have changed to now substantiate the legal non-conformity? The criteria for expansion of a non-conforming use as recently amended are as follows. The applicant should address each of the criteria ap aRPlicable and the Board should utilize that testimony given to make findings to substantiate their decisienkl Section 4-4.5(2) Expansion of a Pre-Existing Nonconforming Use: A pre-existing nonconforming use shall not be expanded and/or intensified except by special permit from the Zoning Board of Appeals. In granting a special permit for expansion of a pre-existing nonconforming use, the Board must find that the proposed expansion, and/or intensification will not be more detrimental to the neighborhood and that the following requirements are met: A)Any proposed expansion of the use shall conform to the established setbacks for the zoning district in which it is located, or such greater setbacks as the Zoning Board of Appeals may require due to the nature of the use and its impact on the neighborhood and surrounding properties. B)The proposed use and expansion is on the same lot as occupied by the nonconforming use on • the date it became nonconforming. C)The proposed new use is not expanded beyond the zoning district in existence on the date it • became nonconforming. D)At the discretion of the Zoning Board of Appeals, improvements may be required in order to reduce the impact on the neighborhood and surrounding properties including but not limited to the following: 1) greater conformance of signage to the requirements of Section 4-3; 2) the addition of off-street parking and loading facilities; 3) improved pedestrian safety, traffic circulation and reduction in the number and/or width i of curb-cuts; 4) increase of open space or vegetated buffers and screening along adjoining lots and roadways; 5) accessory uses or structures to the principal nonconforming use, may be required to be brought into substantial conformance with the present zoning. As the Board may recall, there have been numerous concerns recently over the height and proliferation of communication towers along the Cape. The department recognizes the growing need for the towers as related to increase communication and advances in that industry. At the same time, the over duplication of services and proliferation that is not needed could prove to be a detriment. The applicant should substantiate the need exists for this tower at this location and height. Who has committed to locating (renting of space) on the tower at this time? Staff would suggest that all equipment to be hung on the tower(communication dishes, antennas, etc..) • should be provided to the Board by the applicant. This information should be included in the decision as Planning Department-Staff Report Appeal No. 1996-32-Midcape Communications,L.P. reflecting "full build-out" permitted on the tower. The information will also provide additional data for the design of the tower in terms of its needs for a second set of guide lines. • Site Plan Review: The site plan was found approvable by the Site Plan Review Committee on March 13, 1996 with the following suggested conditions: • Applicant must file a report on meeting with Dorr Fox[Cape Cod Commission with reference to the project as not being a Development of Regional Impact] DRI. • Technical data on tower& Lighting must be supplied for review by both engineering &.fire departments. . • Applicant will obtain new/proper address from engineering department. Attachments: Applications Assessor Map Plan Reduction copies: Applicant/Petitioner Building Commissioner • TOWN OF BARNSTABLE Zoning Board of Appeals • Application for a Special Permi Date Received -_ For office use onl Town Clerk office Appeal # Hearing Data e _ _ -' Decision Due The undersigned hereby applies to t e ing Board of Appeals for a special Permit, in .the manner and for the reasons hereinafter set forth: Applicant Name: Midcape Communications,. L.P. , Phone 790-5407 Applicant Address: c/o Patrick M. Butler, Esq., P.O. Box 1630 Hyannis, MA 02601 Property Location: Service Road. Centerville Property owner: Commonwealth Electric , Phone (611) 225-4000 Address of owner: Zf applicant differs from owner, state nature of, interest: Ground Lease holder j ��� ' .: ;� ,.,� � ice_;; ; • Number of Years ownedt 10 + Assessor's Map/Parcel Number: Map 214 Parcels 8, 9 & 10 Ho Zoning District: RF om.. Groundwater overlay District: . GP T . Special Permit Requested: 4-4.5(2) Cite Section & Title of the Zoning ordinance Description of Activity/Reason for Request: Replacement of existing radio tower (240' in height) with new roln model 90 guyed tower (420' ) height); relocation of existing transmission/equipment building. Description of Construction Activity (if applicable) : See above v Proposed Gross Floor Area to be Added: 0 Altered: 800 • Existing Level of Development of the Property - Number of Buildings: 1 Present Use(s) : radio tower , Gross Floor Area: 800 sq. ft. i - Application for a Special Permit • Is the property located in an Historic District? Yes [ ] No [X] If yes ORH Use only: Plan Review Number Date Approved Is the building a designated Historic Landmark? Yes [ ] No [X] if yes Historic Preservation Department Use Only: Date Approved Have you applied for a building permit? Yes [X] No [ ] Has the Building Inspector refused a permit? Yes No [ j All applications for a Special Permit require an approved Site Plan. That process must be successfully completed prior to submitting this application to the Zoning Board of Appeals. For Building Department Use only: Not Required - Single Family [ ] Site Plan Review Number Date Approved Signature: The following information must be submitted with the application at the time of filing, failure to supply this may result in a denial of your request: • Three (3) copies of the completed application form, each with original signatures. Five (5) copies of a certified property survey (plot plan) showing the dimensions of the land, all wetlands, water bodies and surrounding roadways and the location of the existing improvements on the land. Five (5) copies of a proposed site improvement plan, drawn by a certified professional and approved by the Site Plan Review Committee is required for all proposed development activities. This plan must show the exact location of all proposed improvements and alterations on the land and to structures. see "Contents of site Plan", Section 4-7.5 of the Zoning Ordinance, for detailed requirements. The applicant may submit any additional supporting documents to assist the Board in making. its determination. �� Signature. � Date I -3 I -5 Applicant's or Agents Signature Patrick M. Butler, Esq. \� Nutter, McClennen & Fish, LLP Phone (508) 790-5407 Agent's Address: P.O. Box 1630 Hyannis, Massachusetts 02601 Fax No(508) 771-8079 • 00-113- Mid Cape Communications;20.15--Service-Rd:;°Centervii-le;2141008=0i0: -= Proposal: Reconstruct radio antenna. b • P. Butler explained operation, detailed locale within Comm. Electric property, • leasing agreement& showed map of area. • Existing tower two hundred & forty ft. high. Comm. Electric owns land, McGregor leases land, owns tower. • Portion of tower will be used by Comm. Electric. Public safety agencies interested in communication capabilities e.g. fire,police, Red Cross. • RF -1 district, applicant will seek expanded non-conforming use. • Discussed proposed type of building materials for tower. • First tower built 1979. • Applicant still negotiating with both private enterprises & public safety officials. Not-sure what%will be private/public. • Applicant intends to provide space for public usage, unsure, at this time, if it will be provided free or on sliding scale. • Must await FAA approval before submitting plans. FAA must approve height. • Proposed tower will be built to sustain hurricane type weather. • • Commissioner requested a letter of opinion, from P. Butler, as to why this proposal should not be a DRI. . • P. Butler replied that a similar tower, down Cape, not DRI. i • Eight hundred sq. ft. adjacent bldg. will house generator. No hazardous materials to be stored on site. • Applicant will meet all ordinance requirements for underground tanks. • Will return to SPR at later.date with complete proposal/plans. X v� 5 �vA_ J 2Q�1� C,�-COMM iS s�, • - SP-'I-I-96 ---- Mid-Cape?:Cothmunications, .-. �)-. . .9 e-. - e P.Butler,B.McGregor&R.Joyal appeared,seek special permit. \ ` • P. Butler gave history of project, long term land lease in lieu of space on tower. • • P. Butler presented map of site. Access from tower road to be closed access will be from Service Rd. • P.Butler presented copy of FAA determination of no hazard. • P. Butler recited the need for greater communication ability on Cape. Will have room for public safety access. Space could be used by Red Cross:, Civil Defense,Cape Cod Hospital.etc. • Applicant addressed staff comments. • Proposed tower will be moved north away from residential area. Less than 500 gals of propane to be stored above ground on site. . Tower will be equipped with burglar,not with fire alarm. • Proposal does not require a septic system. • P. Butler reiterated his belief that proposal does not require DRI review from C.C. Commission. B. Burgmann advised applicant that correct address could be obtained from engineering dept. • P. Butler noted that additional vegetation will be planted along perimeter as buffer between tower&residential area. • . Original tower erected 25 yrs. ago. New tower will use 10-20% of area for profit space. • Tower will be illuminated per FAA regulations. Lighting will be less intense than before. Strobe lights will be used. • Microwave dishes will be kept at same elevation. No problem with bird kill. • On ZBA agenda for 4/4. • P.Butler will confer with Dorr Fox of C. C. Commission re:DRI. New tower will be ks narrower should Butler will prov de aesthetically informationmon structure fails tower will corkscrew. type. Chief Jenkins noted that tower access road must be able to support emergency vehicles. • Approved for review by ZBA with conditions: I • Applicant must file report on meeting with Dorr Fox re: DRI. • • Technical data on tower & lighting must be supplied for review by both . engineering& fire departments. Applicant will obtain new/proper address from engineering department SS.. The Town of Barnstable i 6jF9. Department of Health Safety and Environmental Services Building-Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner SITE PLAN REVIEW CERTIFICATE OF REVIEW I certify that Patrick Butler, Esquire, for Mid Cape Communications, 2015-2039 Service Rd. , Centerville, has submitted a site plan SP-11-96 pursuant to Barnstable Zoning Ordinance, Section 4-7, and that such site plan has been reviewed and deemed approved for review by ZBA • with conditions: e Applicant must file report on meeting with Dorr Fox re: DRI . • Technical data on tower & lighting must be provided for review by both engineering & fire departments . • Applicant will obtain new/proper address from engineering department. /G Building Commiss ' oner March 7, 1996 date of action S01019K BARN r = • The 'Town of Barnstable ;;¢ Department of Health, Safety and Environmental Services iOrFo +" Building Division • 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen, Fax: 508-790-6230 Building Commissioner March 13, 1996 Patrick M. Butler, Esquire PO Box 1630 . Hyannis, MA 02601 Re: Site Plan Review Number 11-96 Mid Cappe Communications, L.P. 2015, 2039, 2059 Service Rd. , Centerville Dear Attorney Butler: The above referenced site plan is approved. • Please be informed that you must comply with any requirements the Zoning Board of A peals may impose, any conditions listed on the Certificate of Review and that a building permit is necessary prior to any construction. Upon completion of all work, the letter of certification required by Section 4-7 .8 (7) of the Town of' Barnstable Zoning Ordinances must be submitted. Should you have any questions, please feel free to call . rh ctfully, Crossen Building Commissioner RMC/car enc. E • S01091z I : . . : The Town of Barnstable URMANA NAM ' Department of Health, Safety and Environmental Services Mr►+" Building Division 367 Main Street,Hyannis MA 02601 • Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner TO: Gail Nightingale, Chairman, Zoning Board Of Appeals r FROM: Ralph M. Crossen, Building Commissioner SUBJECT: Site Plan Review File SP-11-96 Mid Cape Communication, L.P. 2015, 2039, 2059 Service Rd. , Centerville. DATE: March 13, 1996 The above referenced site plan has been reviewed and is • deemed approved, with conditions, for purposes of referral to the Zoning Board Of Appeals. Attached please find: 1. a copy of the Certificate Of Review, 2. a copy of the letter of approval. • S010192A ' ~ • ` ar.�.!�Ci!%!�-ft�elllf,CG+17���(/ e�/tJG!l�G��; �d1k�Jl/lllPfl�i V�'47.�� February 15, 1996 Re: Nex el, D.P.U. 95-59 FEB 2 2 19Qo , Dear Sir or Madam, 1 TOWN OF BARNSTABLE ZONING BOARD OF APPFAI.S We are writing to you ecause of your involvement in your municipality's zoning process, to inform you of a change in the Department of Public Utilities' policy regarding zoning exemptions for mobile telecommunications providers. As you may be aware, the :-Department.-has-the.authority.under.-G.L.:.r,. ,40A,:•§..3.io.exeMpt.:companies that.qualify.as . "public service corporations" from the operation of municipal zoning regulations, if the exemption is required and "...reasonably necessary for the convenience or welfare of the public." In recent years, the Department has granted zoning exemptions in order to site facilities including electric transmission lines, substations, gas pipeline meter stations, and telecommunications towers. • On February 9, 1996, the Department of Public Utilities issued an Order concerning the ability of Commercial Mobile Radio Service ( CMRS ) providers (commonly known as cellular phone companies) to petition the Department for exemption from local zoning by-laws. In this Order, which is referred to as Nextel (Dispatch Communications of New England. Inc. d/b/a/Nextel Communications. Inc., D.P.U. 95-59 (1996)), the Department denied Nextel's petition for a zoning exemption on the grounds that the company does not qualify as a public service corporation. You should be aware that this finding extends to all CMRS providers, including those who previously were granted public corporation status i e , NYNEX Mobile and Cellular One). Therefore, those providers no longer qualify as public service corporations under G.L. c. 40A, § 3 and will not be recognized as such by the Department in the course of seeking exemptions from local zoning by-laws.or ordinances. As stated in our Order, the Department supports the build-out of CMRS systems consistent with Federal, State and local law and policy. We also note that the recently- passed Telecommunications Act of 1996 specifies that State or local governments, in regulating the placement'and construction of CMRS towers, may not unreasonably discriminate between providers of functionally equivalent services, and may not take actions that prohibit or have the effect of prohibiting the provision of CMRS services. Therefore, we strongly encourage localities to work diligently with all CMRS providers to reach • mutually acceptable solutions to the siting of CMRS towers. Public Service Corporations-_.- _.. ,_..._ . _ . _.�:_ --- Page 2--- ... If you wish to receive a copy of the Departments Order, please contact Mary Cottrell, Secretary of the Department, .at (617) 727-3500. Thank you for your attention to this matter. Sincerely, Joh . Howe;-'Chairman Ih.�r C -il Mary lark Webster, Commissioner Janet Gail Besser, Commissioner cc: Massachusetts Municipal Association 114 D1� 1„LIgO' DLO N 3e �JLGE 'ip.% J y0/ 50 1.00 Ooec 00 © I ; a9 �•{' .`t� ,tip L.� ,•�, � \ 'Ot �•CNS BCF - sus ^ ► aj '� \-'. / ` co /7qF TFICT !r l�G © O V J�CCJJ�� ♦ 1a • .a�.c // .. m V .►L `'ems Ir�..y a 7 W / gj r / It. • ti♦ `L 01 B, 11 7.94,C-S " G 6�� `G� aBy • = Jay ,Lb � s � /.r, ES r.eo•L� � b o 41 5° 5esfor. 4 0 no ® V1 6y Q 0 � L PREPARED UNDER-THE DIRECTION OF THE lkL•L,e BARNSTABLE BOARD OF ASSESSORS 4. AVIS- AIRMAP INC. I 'S '00, WIDE) TOWN L.O• �94s __... �._ _�_....- - NCRE PAVEMEI .... .. 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A�� Department of Health, Safety and Environmental Services Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner March 13, 1996 Patrick M. Butler, Esquire PO Box 1630 /009 Hyannis, MA 02601 Re: Site Plan Review Number 11-96 Mid Cappe Communications, L.P. 2015, Z039, 2059 Service Rd. , ,^ tesille W46jole Dear Attorney Butler: The above referenced site plan is approved. Please be informed that you must comply with any requirements the Zoning Board of A peals may impose, any conditions listed on the Certificate of Review and that a building permit is necessary prior to any construction. Upon.completion of all work, the letter of certification required by Section 4-7.8 (7) of the Town of Barnstable Zoning Ordinances must be submitted. Should you have any questions, please feel free to call. Res ctfully, alph Crossen Building Commissioner RMC/car I I enc. S01091z