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HomeMy WebLinkAboutSupporting Statementsbrownrudnick Edward D. Pare, Esq. direct dial: 401-276-2639 epare@brownrudnick.com December 30, 2022 Town of Barnstable c/o Ann Quirk Town Clerk 367 Main Street Hyannis, MA 02601 Town of Barnstable Zoning Board of Appeals c/o Anna Brigham Principal Planner 367 Main Street Hyannis, MA 02601 Brown Rudnick LLP I brownrudnick.com 110 Memorial Boulevard, Providence, Rl 02903 11.401.276.2600 Re:Zoning Application for a Personal Wireless Service Facility Applicant:Crown Castle, Inc. (“Crown Castle”) Site:36 Wequaquet Lane, Centerville and 1060 Falmouth Road, Hyannis, Barnstable, MA (Assessor’s Parcel Numbers 250023T00 and 250023H00) (collectively, the “Site”) Owner:Centerville Gardens II, LLC Facility:Construct a 110’ (above ground level, hereafter “AGL”) monopole-style tower (the “Monopole”) with the capacity for at least four (4) wireless communication service providers’ antennas, together with related amplifiers, cables, fiber and other associated antenna equipment, including remote radio heads, surge arrestors, and global positioning system antennas with associated electronic equipment, and other appurtenances in equipment cabinets or shelters and backup emergency power generator(s) located within an area surrounded by a fence and screened by proposed vegetation (the “Facility”) to replace the nearby existing tower located at 1047 Falmouth Road, all as depicted on the plans (the “Plans”) submitted with this Application. Relief Requested:Based on the Board’s past practice, a height variance and, to the extent required, a use variance pursuant to Sections 240-125(B)(l)(c) and (e) of the Zoning Ordinance of the Town of Barnstable, Massachusetts (hereinafter, the “Ordinance”); and, an amendment of Condition 5 of Special Permit 2012-007 to allow this limited commercial activity pursuant to the Telecommunications Act of 1996 (the “TCA”) and associated site improvements within the small portion of the Site located within the RD-1 (Residence DI) zoning district; all as provided in Massachusetts General Laws Ch. 40A, and the TCA and, to the extent Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 2 required, all rights reserved, any other required relief, including a federal preemption variance pursuant to the TCA for the construction, operation, and maintenance of the Facility, all rights reserved. Dear Honorable Members of the Barnstable Zoning Board of Appeals: On behalf of Crown Castle, we are pleased to submit this memorandum to the Town of Barnstable Zoning Board of Appeals (the “Board”) in support of Crown Castle’s application for zoning relief for the installation, operation and maintenance of the proposed Facility at the Site. The proposed Facility will replace the existing tower at 1047 Falmouth Road directly across Falmouth Road from the Site which is owned by Crown Castle and scheduled to be removed at the expiration of the existing lease agreement in mid-2024. The following provides background information regarding the Facility and addresses each applicable section of the Ordinance for the relief requested. BACKGROUND Crown Castle owns and manages wireless communication infrastructure throughout the United States. Crown Castle leases space to wireless communication service providers and other users of wireless technology. Crown Castle strives to be a good neighbor to the communities within which it has communication sites. Wireless communication service providers will lease space from Crown Castle and be subtenants of the Owner of the Site. These wireless communication services providers are licensed by the Federal Communications Commission (“FCC”) to construct and operate wireless communications networks that offer enhanced features such as caller ID, voicemail, e-mail, superior call clarity and high-speed data services in various markets throughout the Commonwealth of Massachusetts, Cape Cod and the Town of Barnstable in particular. By filling existing significant coverage gaps and significant gaps which will occur with the anticipated removal of the existing nearby monopole, the Facility will aid in reaching the wireless communication services providers’ goal of maintaining the provision of reliable wireless communication services in and around the Town of Barnstable and to all of Massachusetts. When the existing monopole located at 1047 Falmouth Road is removed, the carriers on that pole will no longer provide adequate service to the area and their existing customers will be negatively impacted. A reliable communications system depends on a grid of antennas arranged in a geographical pattern, similar to a honeycomb. Each “cell” is created by an antenna and serves as a link between the customer and the network while that customer is within proximity to the cell site. Each cell can handle a finite number of connections. As the number of customers and data consumption increases, more cell sites must be added to handle the increased volume in service demands. A new antenna installation is constructed each time a new cell site is created. Crown Castle submits that the Site is well suited for a wireless communications facility. As demonstrated through the Application materials and the written and oral evidence at the Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 3 public hearing(s) in connection with the Application, the Facility meets with all applicable requirements of the provisions of the Ordinance to the extent possible, in light of the TCA. The Facility will not adversely impact adjacent properties and neighborhoods as the Facility will be screened from view by residences in the area to the maximum extent possible. The location of the Facility will protect, to the extent practicable, the aesthetic qualities of the Town of Barnstable by utilizing a parcel of land that is especially suited to the proposed use and will minimize impacts to the interests protected by the Ordinance. The Facility is designed to provide for maximum colocation in order to minimize the number of tower structures in the area. The installation of the Facility will not be a threat to public health, safety and welfare. In fact, Crown Castle submits that the Facility will aid in public safety by maintaining and improving wireless communication services to the residents, businesses, commuters, and emergency personnel utilizing wireless communications in the immediate vicinity and along the nearby roads. These services further the public interest of health and safety as they provide wireless 911 services to the community and communication services for the public. According to published reports, approximately 80% of all 911 calls are made from wireless devices. The Facility will allow for continuing access to these reliable and robust networks in this area of the Town of Barnstable. Today, wireless infrastructure is required to assist with public safety needs. The Facility will function as a wireless communication services facility within local, regional, and national communications systems. These systems operate pursuant to licenses from the FCC and the wireless communication services providers are mandated and authorized to provide adequate service to the Town of Barnstable. This Site was selected after a careful screening process and was found useful to Crown Castle and the wireless communication services providers. The Facility will replace a nearby existing wireless communications facility which is scheduled to be decommissioned and removed in mid-2024. The Facility will not generate any objectionable noise, odor, fumes, glare, smoke, or dust or require additional lighting. The Facility will not negatively impact property values in the area. No significant increase in traffic or hindrance to pedestrian movements will result from the installation of the Facility. On average, only one or two round-trip visits per month are required to service and maintain the Facility which will be accessed through the commercial parcel along Falmouth Road. The utilities required to operate this Facility are standard electrical power as well as communication (telephone or fiber) service. The Facility will comply with all applicable local, state and federal safety codes. The Facility is unmanned and will have minimal negative effect on adjoining lots. This Facility does not require police or fire protection because the Facility has its own monitoring equipment that can detect malfunction and/or tampering. Crown Castle will safely construct and maintain the Facility and remove the Facility when no longer in use, all in accordance with the Ordinance. After a full public hearing process, the Cape Cod Commission approved the application for the Facility as a Development of Regional Impact and a copy of that decision (the “Decision”) is attached. The Site is located within the RD-1 Residential zoning district, the HB Highway Business zoning district, the GPOD Groundwater Protection Overlay District, and the RPOD Resource Protection Overlay District. Crown Castle has designed the Facility with due regards to the requirements of Section 240-107 of the Ordinance. Additionally, Section 240-7 (G) (1) requires a 35’ setback of the construction to wetlands. Crown Castle’s construction area will be over 35’ Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 4 away from the nearest wetlands. Likewise, Section 240-11(E) of the Ordinance limits the height of buildings within the RD-1 zoning district to 30’ AGL. Therefore, to the extent the maximum building height applies to the Monopole, Crown Castle requests variance relief pursuant to Section 240-125 (B) (1) (c) of the Ordinance. We understand that the Board’s past practice is to review tower proposals as requiring a height variance. The Facility otherwise complies with the terms of Section 240-107 of the Ordinance. The foregoing relief is also requested pursuant to Massachusetts General Laws Chapter 40A and the TCA for the construction, operation, and maintenance of a Personal Wireless Service Facility, all rights reserved. COMPLIANCE WITH ARTICLE X OF THE ORDINANCE Section 240-106 Purpose and Intent It is the intent of this article to provide for the location and siting of wireless service communication facilities and their accessory structures in accordance with the Telecommunications Act of 1996, to provide for the orderly provision of facilities; ensure public safety; and to minimize adverse visual impacts upon both residential and nonresidential areas. Crown Castle’s Facility will be constructed, operated and maintained in accordance with the TCA. The Facility will be in harmony with the purpose and intent of the Ordinance because the Monopole and wireless communication carriers’ facilities will be set back 319’ from Route 28 and behind a commercially developed portion of the Site in a vegetated area separating the Facility from residences abutting the Site, thereby reducing potential visual impacts to the maximum extent possible. Furthermore, limiting the height of the Monopole to 110’ AGL minimizes potential visual impacts while providing collocation opportunities in light of the anticipated removal of the nearby existing tower. The Facility will not produce any smoke, dust, waste, glare or significant amounts of traffic. The installation of the Facility will not be a threat to public health, safety and welfare. In fact, Crown Castle submits that the proposed Facility will aid in public safety by providing and improving wireless communication services to the residents, businesses, commuters, and emergency personnel utilizing wireless communications in the immediate vicinity and along the nearby roads. These services further the public interest of health and safety as it will enable wireless 911 services to be available to the community and emergency communication services to the public. In fact, Crown Castles submit that the Facility will aid in public safety by maintaining and improving wireless communication services to the residents, businesses, commuters, and emergency personnel utilizing wireless communications in the immediate vicinity and along the nearby roads. According to published reports, approximately 80% of all 911 calls are made from wireless devices. Likewise, with AT&T’s interest in collocating on and at the Facility, FirstNet services will be available. This Facility aligns with the objectives of FirstNet’s mission to create a nationwide broadband network for America’s public safety first responders. FirstNet is a federal agency with a mandate to create a nationwide, interoperable public safety broadband network for first responders. First responders across the country have relied on more than 10,000 separate radio networks which oftentimes do not interoperate with one another. By deploying a Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 5 nationwide broadband public safety network built specifically to meet the communications needs of first responders, the FirstNet network provides a solution to the decades-long interoperability and communications challenges first responders have experienced. These issues were highlighted in the 9/11 Commission’s Final Report. AT&T’s network provides dedicated and preemptive services on its network for first responders. Using a combination of new and existing wireless facilities, AT&T provides prioritized, preemptive wireless services for first responders across Massachusetts and nationwide. FirstNet’s initiative will strengthen and modernize these communications services by providing quicker response and communication connectivity by law enforcement, fire, emergency medical and other public safety personnel. FirstNet requires a highly reliable network that offers priority to first responders with a trusted and resilient network. The Facility will allow for improved access to this reliable and robust network in this area of the Town of Barnstable. The Monopole will be designed for colocation for at least four (4) antenna arrays, thereby minimizing the total number of towers in the Town of Barnstable. These systems operate under licenses from the FCC, and the wireless communication services providers are mandated and authorized to provide adequate service to the general public. The Facility will comply with all applicable federal regulations and guidelines pertaining to radio frequency emissions. The location of the Facility on the Site minimizes any adverse visual impact. The significant setback from Falmouth Road and location of the Facility behind the commercial structure minimize the visual impact along Route 28. Likewise, the existing vegetation provides significant screening from the residences to the rear of the Site. Crown Castle has also provided fencing and vegetative screening to minimize the visual impact of the ground equipment located within the fence compound. Section 240-107 Requirements for all personal wireless facilities in all zoning districts. A. Installation and construction of all personal wireless service facilities, including but not limited to antennas, mounts, equipment shelters and structures, shall be subject to Article IX Site Plan Review, and shall require issuance of a building permit. Crown Castle has commenced the Site Plan Review process in accordance with this provision of the Ordinance. Likewise, Crown Castle will apply for a building permit upon the requisite approvals and demonstrate compliance with all applicable provisions of the building codes. B. The applicant shall provide site plan review with evidence that they are a licensed carrier, authorized by the Federal Communications Commission (FCC) to construct and operate personal wireless services, and that the proposed transmitters are FCC regulated and approved. Crown Castle’s proposed Facility will replace the existing tower at 1047 Falmouth Road and federally licensed wireless communication services Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 6 providers will collocate their equipment at the Facility. AT&T, an FCC licensed provider of wireless services is committed to utilizing the facility and DISH Wireless has provided a letter of intent and support. Verizon Wireless and T- Mobile have also indicated their intended use of the Facility (see attached letters of interest and support). Likewise, The Facility will comply with all applicable requirements of the FCC. C. The structure to which any mount or antenna is attached is a legally built structure under zoning, or a preexisting, legal nonconforming structure. Crown Castle does not propose to attach antennas to an existing structure, so this provision of the Ordinance does not apply to this Application. Crown Castle is seeking approval of the Monopole pursuant to this Application. We note that the proposed Monopole will replace an existing nearby tower which will be removed by Crown Castle. D. If the location is within a designated historic district, the applicant shall secure a certificate of appropriateness, to the extent required. While the Site is not within a designated historic district, the Massachusetts Historic Commission has determined that the Facility will have no adverse effect. E. Structural components including guy wire anchors and equipment shelters shall comply with all required setbacks of the zoning district. As depicted on the Plans, Crown Castle’s Facility will comply with the required setbacks of the underlying zoning district. F. Any equipment or base receiver station, not located within an existing building or underground vault, shall be designed to fit in with traditional Cape Cod architecture styles and materials, or shall be screened from view. The equipment of the wireless communication services providers will be screened from view within the proposed fenced compound area by both existing vegetation as well as plantings as depicted on the landscaping plan submitted as part of the Plans. Section 240-108 Antennas permitted by special permit in all zoning districts. Except where permitted as of right in Section 240-109 below, in all zoning districts, an antenna mounted or located on any existing building, structure or communications tower may be permitted by special permit from the Zoning Board of Appeals, provided that no antenna exceeds the height of the existing structure by more than 12 feet, unless the Board Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 7 finds that additional height is necessary to provide coverage, and the additional height will not be visually intrusive upon the surrounding area. Crown Castle does not propose to mount antennas on an existing structure, so this provision does not apply to this Application. Crown Castle proposes the Monopole to replace the existing monopole at 1047 Falmouth Road. Section 240-109 Antennas permitted as of right in all zoning districts. Antennas permitted as of right in all zoning districts shall be as follows: A. Co-location of antennas and customary appurtenant equipment on an existing communications tower lawfully permitted for the purpose of supporting FCC-licensed antennas, subject to compliance with Section 240- 107 and the following standards: (1) The antenna shall not increase the height of the communications tower. (2) The antenna shall not extend out from the tower more than technically necessary for proper operation. (3) The applicant shall submit a structural analysis, prepared and stamped by a registered professional engineer licensed to practice in the Commonwealth of Massachusetts, demonstrating that the communications tower has sufficient structural capacity for the installation. The analysis shall include information about all antenna installations on the tower. (4) Ground-mounted accessory equipment shall be located within an existing equipment shelter or an area fully screened in accordance with Section 240-107F. Crown Castle does not propose to collocate antennas on an existing tower, so this provision does not apply to this Application. Crown Castle proposes the Monopole to replace the existing monopole at 1047 Falmouth Road. B. An antenna and/or tower used in accordance with the terms of an amateur radio service license issued by the Federal Communications Commission provided that any facility tower is not licensed or used for any commercial use, subject to all the requirements of Section 240-8, Exempt uses. This provision of the Ordinance does not apply to this Application. C.Television and radio antennas, including satellite dishes not exceeding a diameter of four feet, for personal use, accessory to a residential use, or to provide entertainment for a single business such as a restaurant. Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 8 This provision of the Ordinance does not apply to this Application. D. An antenna completely enclosed within an existing structure other than a communications tower, provided that the associated equipment or base transceiver station is located within an underground vault, or within an existing building or addition thereto, other than an equipment or base receiver shelter. This provision of the Ordinance does not apply to this Application. E. An antenna located upon the roof of an existing building or structure other than a communications tower, provided that the antenna does not exceed a height of 12 feet, and provided that the equipment shelter is set back from the roof edge a distance equal to the height of the equipment shelter This provision of the Ordinance does not apply to this Application. F. An antenna located on a water tower belonging to a public water supply utility, by permission of the water utility, not to exceed the height of the water tower by more than 12 feet, except that the Zoning Board of Appeals may by special permit increase the height of the antenna up to 20 feet where the location of the water tower and design of the antenna is such that it will not be visually intrusive upon the surrounding area. This provision of the Ordinance does not apply to this Application. G. Antennas located on existing utility stanchions, not to exceed a height of 12 feet above the utility stanchions, located within a Commonwealth Electric Company easement, with permission of the landowner to location and maintenance of an equipment or base receiver station shelter, or submission of recorded easement language demonstrating the right to install an equipment or base receiver station for a wireless communication facility. This provision of the Ordinance does not apply to this Application. VARIANCE-COMPLIANCE with SECTION 240-125(B)(l)(c) and (e) of the ORDINANCE and MASSACHUSETTS GENERAL LAWS CHAPTER 40A, SECTION 10 Variances. To authorize upon appeal or upon petition in cases where a particular use is sought for which no permit is required, with respect to a particular parcel of land or to an existing building thereon, a variance from the terms of this chapter where, owing to conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this chapter Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 9 would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter, but not otherwise. The hardship includes significant gaps in wireless coverage experienced by FCC licensed wireless communication service providers, including AT&T and Dish Wireless and upon removal of the existing nearby monopole, the networks operated by Verizon and T-Mobile. The location of the Site relative to the gaps in network coverage renders the location uniquely suited for the Facility to fill the existing and anticipated significant gaps in coverage, thereby allowing the carriers to provide adequate coverage in this area of the Town of Barnstable as part of their networks operated pursuant to FCC licenses. Pursuant to case law, if local permit granting authorities prevent a wireless service provider from filling a gap in its network coverage, that authority’s decision may “prohibit or have the effect of prohibiting the provision of personal wireless services.” We also note that the FCC redefined "effective prohibition" to mean that state and local governments cannot impose requirements that materially limits or inhibits a provider's ability to engage in activities related to the provision of service. This standard applies to efforts to introduce new or enhance coverage, capacity or service capabilities and notes that regulations that cause a financial burden or competitive disparity can be an effective prohibition. The Site is an ideal, unique location because it can meet identified and anticipated significant gaps in coverage. The use of the Site for the Facility at the height proposed will enable FCC licensed wireless providers to provide enhanced wireless communication services in an area in which significant gaps exist. Without the requested relief, wireless carriers will have substantial “gaps” in reliable service coverage in its network. Radio frequency coverage maps and a Report of Radio Frequency Engineer, provided by AT&T, confirm that a communications facility located at the Site is required to remedy the gap in AT&T’s network coverage in the area. The hardship is owing to circumstances relating to the soil conditions, shape and/or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located. The hardship is owing to the shape and topography of the land and the Site’s location in light of the wireless communication service providers’ networks. The location of the Site relative to the existing and anticipated gaps in network coverage renders the proposed location uniquely suited for the Facility to fill the existing and anticipated significant gaps in coverage, allowing the wireless carriers to provide adequate coverage in this area of the Town of Barnstable as part of their networks operated pursuant to FCC licenses. Pursuant to case law, if local permit granting authorities prevent a wireless service provider from filling a gap in its network coverage, that authority’s decision may “prohibit or have the effect of prohibiting the provision of personal wireless services.” The Site is an ideal, unique candidate because it can meet identified and anticipated significant gaps in coverage. Without the requested relief, the FCC licensed providers of wireless communication services will have substantial gaps in reliable service coverage in their networks. Radio frequency coverage maps and an RF Report, provided by AT&T, confirm that a communications facility located at the Site is required to remedy the Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 10 anticipated gap in AT&T’s network coverage in the area. The Site itself is unique in size, shape and includes split zoning districts. The elevation of the Site provides the opportunity to limit the height of the Monopole to 110’ while providing sufficient height for the wireless networks. The shape of the Site provides, and split zoning district also provides for significant screening from existing vegetation while providing significant setbacks, and satisfying the requirements of the Cape Cod Commission. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Ordinance. The Facility will not be a substantial detriment to the public good and will not nullify or substantially derogate from the intent or purpose of the Ordinance because it will include a monopole-style tower in a vegetated area on the Site, where abutting residential areas are screened from viewing the Monopole. Likewise, the existing commercial development along Falmouth Route minimizes potential visual impacts. Facility will benefit those living and working in and traveling through the area by providing enhanced wireless communication services. The Facility will not adversely impact adjacent properties and neighborhoods. The installation of the Facility will not be a threat to public health, safety and welfare. In fact, Crown Castle submits that the proposed Facility will aid in public safety by providing and improving wireless communications services to the residents, businesses, commuters, and emergency personnel utilizing wireless communications in the immediate vicinity and along the nearby roads. The Facility will not generate any objectionable noise, odor, fumes, glare, smoke, or dust or require additional lighting or signage. The Facility will have no negative impact on property values in the area. No significant increase in traffic or hindrance to pedestrian movements will result from the Facility and access to the Facility will be through the commercial development on the Site. On average, only one round trip visit per month is required to service and maintain the Facility. This is an unmanned Facility and will have minimal negative effect on the adjoining lots. This Facility does not require police, or fire protection because the installation has its own monitoring equipment that can detect malfunction and/or tampering. Without the variance relief requested, AT&T and other FCC licensed wireless communication service providers would be unable to fill their existing and anticipated significant gaps in coverage thereby creating a hardship recognized by federal and state courts interpreting the TCA (see discussion regarding the TCS below). The Site is located within the limited geographic area whereby AT&T’s radio frequency engineers determined that a wireless facility is required. AT&T has demonstrated an existing need for coverage in an area immediately surrounding the Site. Based on the evidence submitted, including the alternative site analysis, the Facility is the only feasible means reasonably available to fill existing and anticipated gaps in wireless communication service coverage, thereby allowing the FCC licensed carriers to provide adequate coverage to their network customers. THE FEDERAL TELECOMMUNICATIONS ACT OF 1996 - THE TCA The TCA imposes substantial restrictions affecting the standard for granting the requested relief. Without the installation of this Facility, AT&T and other FCC licensed wireless Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 11 communication service providers would be unable to provide specifically established coverage and capacity objectives. The TCA provides that: no laws or actions by any local government or planning or zoning board may prohibit, or have the effect of prohibiting, the placement, construction, or modification of communications towers, antennas, or other wireless facilities in any particular geographic area, see 47 U.S.C. §332(c)(7)(B)(i); local government or planning or zoning boards may not unreasonably discriminate among providers of functionally equivalent services, see 47 U.S.C. §332(c)(7)(B)(i); health concerns may not be considered so long as the emissions comply with the applicable standards of the FCC, see 47 U.S.C. §332(c)(7)(B)(iv); and, decisions must be rendered within a reasonable period of time, see 47 U.S.C. §332(c)(7)(B)(ii) and the Order commonly referenced as the applicable “shot clocks”. The FCC shot clock in this instance is 150 days from the submission of the Application. We also note that the FCC redefined "effective prohibition" to mean that state and local governments cannot impose requirements that materially limits or inhibits a provider's ability to engage in activities related to the provision of service. This standard applies to efforts to introduce new or enhance coverage, capacity or service capabilities and notes that regulations that cause a financial burden or competitive disparity can be an effective prohibition. In Qmnipoint Holdings, Inc, v. City of Cranston, 586 F.3d 38 (1st Cir. 2009), the First Circuit Court of Appeals held that an effective prohibition occurs if a carrier demonstrates a significant gap in coverage and has investigated other viable alternatives. The factors the Court considered in judging the feasibility of an alternative solution include whether the alternative solution is technically efficient or at least technically adequate; economically feasible; preferred by local authorities; and the level of willingness to cooperate. In Nextel Communications of the Mid-Atlantic v. Wayland, 231 F.Supp.2d 396 (D. Mass. 2002) and Qmnipoint Communications MB Operations, LLC v. Town of Lincoln, 107 F. Supp. 2d 108 (D. Mass. 2000), the courts held that a municipality must approve a wireless facility if denying the petition would result in a “significant gap” in wireless services within a municipality because such denial would amount to an effective prohibition of wireless services. See 47 U.S.C. §332 (c) (7) (B) (i) (II). The court recognized that “an effective prohibition can exist even where a town allows for the erection of [wireless communications facilities] but subject to criteria which would result in incomplete wireless services within the town, i.e., significant gaps in coverage within the town.” Town of Lincoln, 107 F. Supp. 2d at 117. Therefore, if an applicant establishes that the proposed facility would fill a significant gap in its wireless service coverage and is the least intrusive and only means reasonably available to accomplish that end, then the municipality must approve the requested zoning relief. We also note that the FCC redefined "effective prohibition" to mean that state and local governments cannot impose requirements that materially limits or inhibits a provider's ability to engage in activities related to the provision of service. This standard applies to efforts to introduce new or enhance coverage, capacity or service capabilities and notes that regulations that cause a financial burden or competitive disparity can be an effective prohibition. Of significance to the Board, courts have ordered the municipality to issue the necessary permits to allow the construction of the tower as described in the petition for zoning relief, foregoing an opportunity for the municipality to impose reasonable conditions on the wireless communications installation. Further, the Wayland court held that the need for closing a Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 12 significant gap in coverage, to avoid an effective prohibition of wireless services, constitutes another unique circumstance when a zoning variance is required. We note that in the case of Sprint Spectrum L.P, v. Town of Swansea, Civil Action No. 07-12110-PBS, June 26, 2008, the federal District Court for Massachusetts held that notwithstanding the town zoning bylaw and Massachusetts state law, towns have the authority and obligation to grant use variances to avoid violating the TCA. In a growing number of cases, the federal courts have found that variance denials violate the TCA, even if such denials would be valid under state law. For example, in Omnipoint Communications v. Town of Lincoln 107 F. Supp. 2d 108 (D. Mass. 2000), the court found that denial of a variance for a location outside of the town’s wireless overlay district violated the TCA and ordered the variance to issue despite a bylaw provision prohibiting use variances. Additionally, in Nextel Communications of the Mid-Atlantic, Inc, v. Town of Wayland, 231 F. Supp. 2d 396 (D. Mass. 2002), the court reached the same result. In that case, the court stated: “Although the Board’s statement [regarding its lack of authority to issue a use variance] may be a correct statement in Massachusetts regarding variances, it is not controlling in the special case of wireless communications facilities.. .under the Telecommunication Act, the Board cannot deny the variance if in so doing it would have the effect of prohibiting wireless services.” Through the substantial evidence submitted with the Application, and as confirmed by the Cape Cod Commission in the Decision, we have demonstrated that significant gaps exist (AT&T and Dish Wireless), and will be created upon removal of the nearby existing tower (Verizon and T-Mobile) in the FCC wireless communication service providers networks in this area of the Town of Barnstable. Based on the alternative locations considered, the Facility proposed by Crown Castle at the Site is the least intrusive and only feasible means reasonably available to fill these existing and anticipated gaps in network coverage. SPECIAL PERMIT - COMPLIANCE WITH SECTION 240-125 (C) OF THE ORDINANCE - AMENDMENT OF CONDITION 5 OF THE EXISTING SPECIAL PERMIT 2012-007 (the “Special Permit”) The Board previously granted a conditional special permit for the Site with respect to the commercial uses of the Site along Falmouth Road. Condition 5 of the Special Permit states “All commercial activity and associated site improvements shall remain on the portion of the property zoned HB [Highway Business], The residentially-zoned portion of the property shall remain undeveloped and in a natural state, with the exception of the temporary construction drive. No parking of vehicles or storage shall be permitted on the residentially-zoned property. Clearing of mature vegetation on the residentially-zoned property is prohibited, other than that which is required to construct the temporary construction drive.” In light of the TCA, Crown Castle respectfully requests an amendment to said condition 5 of the Special Permit to allow for the minimal intrusion into the residentially-zoned portion of the Site. As noted herein, local laws on restrictions are subject to the preemption by the TCA. Crown Castle has submitted substantial evidence that the Facility is the only feasible solution to provide adequate coverage by FCC licensed providers of wireless communication services. Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 13 Significant gaps in coverage exist and additional gaps will occur if a replacement structure is not made available when the existing nearby monopole is removed. If the condition in the Special Permit is not amended by the Board, that decision would violate the TCA as an effective prohibition due to the lack of any feasible alternative. Except for the Facility, the Site will comply with condition 5 of the Special Permit. The Facility is a passive use and frequently installed in residentially zoned areas throughout the Commonwealth of Massachusetts. The commercial activity approved in the Special Permit will remain on the portion zoned HB. There will be no parking or storage associated with those commercial uses. Lastly, the area for the Facility has previously been cleared and minimal tree removal is required. The owner of the Site has also offered a Conservation Restriction for the entire residentially-zone portion of the Site to the Town if an entity is available to hold the Conservation Restriction for open space purposes. The Facility is a passive use directly abutting the commercial uses and will provide critical infrastructure for wireless communications in the area. In light of the Decision of the Cape Cod Commission and the substantial evidence submitted with the Application, a denial of the request to amend condition 5 of the Special Permit would violate the TCA. C. Special permit provisions. The Zoning Board of Appeals may grant special permits only for uses specifically provided for as such in this chapter. (2) Standards for granting special permits. A decision of the Zoning Board of Appeals on an application for a special permit shall be based on the following: (a) Whether or not the application falls within the category specifically excepted by this chapter. Crown Castle proposes a personal wireless communication service facility pursuant to the Ordinance, Massachusetts General Laws, and the TCA. (b) An evaluation of all the evidence presented at the public hearing by the petitioner and interested parties as it relates to the fulfillment of the spirit and intent of this chapter without substantial detriment to the public good or the neighborhood affected. Crown Castle’s Facility will be in harmony with the spirit and intent of the Ordinance. The Monopole and wireless communication carriers’ facilities will be set back 319’ from Falmouth Road, thereby reducing potential visual impacts to the maximum extent possible. Furthermore, limiting the height of the Monopole to 110’ AGL keeps potential visual impacts to a Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 14 minimum. At the proposed 110’ AGL height, the Monopole will be eight feet (8’) shorter than the existing tower, which is to be removed, albeit at a slightly higher ground elevation. The proposed Facility will not produce any smoke, dust, waste, glare or significant amounts of traffic. The Facility will have no negative impact on property values in the area. The installation of the Facility will not be a threat to public health, safety and welfare. In fact, Crown Castle submits that the proposed Facility will aid in public safety by providing and improving wireless communications services to the residents, businesses, commuters, and emergency personnel utilizing wireless communications in the immediate vicinity and along the nearby roads. These services further the public interest of health and safety as it will enable wireless 911 services to be available to the community and emergency communication services for the public. Today, wireless infrastructure is required to assist with public safety needs. The Monopole will be designed for colocation for at least four (4) antenna arrays, thereby minimizing the total number of towers in the Town of Barnstable. These systems operate pursuant to licenses from the FCC, and the wireless communications services providers are mandated and authorized to provide adequate service to the general public. The Facility will comply with all applicable federal regulations and guidelines pertaining to radio frequency emissions. (c) A site plan has been reviewed and found approvable in accordance with Article IX herein subject only to the issuance of a special permit. Site Plan Review is in process in accordance with Article IX of the Ordinance. Please refer to the attached Site Plan SPR 008-22. Crown Castle’s request for modification of Condition 5 of the Special Permit will be in harmony with the general purpose and intent of the Ordinance because the Monopole and wireless communications carriers’ facilities will be set back over 300’ from Falmouth Road thereby reducing potential visual impacts to the maximum extent possible. Furthermore, limiting the height of the Monopole to 110’ AGL minimizes potential visual impacts while providing collocation opportunities in light of the anticipated removal of the nearby tower. The proposed Facility will not produce any smoke, dust, waste, glare or significant amounts of traffic. The Facility will have no negative impact on property values in the area. The installation of the Facility will not be a threat to public health, safety and welfare. In fact, Crown Castle submits that the proposed Facility will aid in public safety by providing and improving wireless communications services to the residents, businesses, commuters, and emergency personnel utilizing wireless communications in the immediate vicinity and along the nearby roads. These Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 15 services further the public interest of health and safety as it will enable wireless 911 services to be available to the community and emergency communication services for the public. In fact, Crown Castles submit that the Facility will aid in public safety by providing and improving wireless communication services to the residents, businesses, commuters, and emergency personnel utilizing wireless communications in the immediate vicinity and along the nearby roads. These services further the public interest of health and safety as they provide wireless 911 services to the community and communication services for the public. According to published reports, approximately 80% of all 911 calls are made from wireless devices. Today, wireless infrastructure is required to assist with public safety needs. The Facility will allow for continuing access to these reliable and robust networks in this area of the Town of Barnstable. The Monopole will be designed for colocation for at least four (4) antenna arrays, thereby minimizing the total number of towers in the Town of Barnstable. These systems operate pursuant to license from the FCC, and the wireless communication services providers are mandated and authorized to provide adequate service to the general public. The Facility will comply with all applicable federal regulations and guidelines pertaining to radio frequency emissions. SITE PLAN REVIEW - COMPLIANCE WITH ARTICLE IX OF THE ORDINANCE Section 240-98 Findings. Developments designed to be used for business and professional offices, commercial establishments, industrial facilities, medical-service facilities, public recreational facilities and multiple-family dwellings, together with their associated outdoor areas for vehicular movement and parking, invite and accommodate varying degrees of open and continuous use by the general public. Owing to their physical characteristic and the nature of their operations, such developments may affect neighboring properties and adjacent sidewalks and streets. It is in the interest of the community to promote functional and aesthetic design, construction and maintenance of such developments and to minimize any harmful effects on surrounding areas. Crown Castle’s Facility is required to undergo Site Plan Review under this Article of the Ordinance pursuant to Section 240-107 (A) of the Ordinance and has commenced the Site Plan Review process. We expect the Site Plan Review process will be completed before the hearing before the Board regarding the Application. CONCLUSION As evidenced by the materials submitted with the Application and as will be further demonstrated by Crown Castle through evidence submitted to the Board at the public hearing(s) in connection herewith, the Facility satisfies the intent and objectives of the Ordinance to the extent possible. The Facility will not be dangerous to the public health or safety as it is designed to comply with all applicable FCC requirements including radio frequency emissions and will comply with all applicable requirements of the Massachusetts building code. Indeed, the maximum radio frequency output per channel for the wireless communications facilities Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 16 collocating on this Facility will be well below the maximum radio frequency exposure levels established by the FCC. The Facility is a passive use and will not cause any nuisance such as unreasonable noise, vibration, smoke, odor or dust. Further, the Facility will maintain wireless communication coverage to residents, commercial establishments and travelers through this area of the Town of Barnstable. Crown Castle’s tenants will improve and maintain emergency communications for police and fire personnel by reducing the number and frequency of dropped and incomplete calls due to weak signals and adding an additional layer of communication to traditional land lines. Published reports have highlighted the fact that during and after adverse major weather events, including ice storms, wireless telecommunications have been the only form of reliable communication. Through AT&T’s collocation at the Facility, FirstNet services will be provided to first responders. Lastly, the installation of the Facility at the Site will assist the Town of Barnstable in complying with its obligations under the TCA and reduce the need for additional tower structures in the immediate vicinity. Crown Castle respectfully requests that the Board grant all necessary relief to install and operate the Facility. For the foregoing reasons, as well as to satisfy the mandate of the federal government to facilitate competition in the telecommunications industry as set forth in the TCA, Crown Castle respectfully requests that the Board grant the foregoing zoning relief. We respectfully submit that the standards for relief as set forth in the Ordinance and Condition 5 of the Special Permit, as well as Massachusetts law relating to zoning must be interpreted and applied such that the decision issued by the Board is in conformance with the TCA. Accordingly, in light of the anticipated removal of the existing nearby tower at 1047 Falmouth Road, a denial of the foregoing petition would effectively prohibit FCC licensed wireless communication service providers from providing adequate service to the Town of Barnstable and thus would be contrary to the purpose and intent of the TCA. Sincerely, BROWN RUDNICK LLP /s/Edward D. Pare, Jr._________ Edward D. Pare, Jr. Town of Barnstable Zoning Board of Appeals December 30, 2022 Page 17 ATTACHMENTS 1. Application Form 2. Letter of Authorization 3. Redacted Lease 4. Radio Frequency Report 5. Coverage Maps 6. Alternative Sites Analysis 7. ASAC Site Specific Evaluation 8. Photographs and Simulations 9. Plans 10. Copy of Deed 11. Tower Design Letter 12. Calculated Radio Frequency Exposure Report 13. Environmental Sound Assessment 14. Real Estate Study 15. Special Permit #2012-007 16. Site Plan Review Letter - SPR 008-2219. 17. Cape Cod Commission Decision 18. Redacted Agreement for Existing Monopole at 1047 Falmouth Road 19. Massachusetts Historic Commission Determination 20. Letters of Support from FCC Licensed Wireless Providers 21. Photo of Existing Tower at 1047 Falmouth Road with Antennas Referenced 22. Letter Regarding Concealed Antenna Monopole 64913841 v5-028033/0017