Town of Carlisle, MA - Minutes of 7/23/2007 PB meeting

Continued Public Hearing on application of Omnipoint Communications, Inc. for a special permit and site plan approval under Sec. 5.9 of the Carlisle Zoning Bylaws to install, operate and maintain a personal wireless communication facility at 1022 Westford Street (Map 18, Lot 42A) on property owned by Lawrence A. Sorli.

Request for release of security and Certificate of Completion for Great Brook Estates Definitive Subdivision Plan, 195 Rutland Street (Map 26, Lots 18-1, 18-2, 18-3, 18-8, 18-A, 18-B, 18-C, 18-D, 18-E, 18-F, and Parcels 18-G & 18-H), or extension of time to complete said subdivision [Request of Betsy Goldenberg]

CANCELLED: Informal discussion of conceptual plans of Fern’s Country Store, 8 Lowell Street, (Map 22, Lot 43) to seek site plan approval under Sec. 7.6 of the Carlisle Zoning Bylaws to construct an addition to and/or alteration of an existing building, the principal use of which is non-residential [Request of Larry Bearfield]

Chair Michael Epstein called the meeting to order at 7:45 pm in the Clark Room at Town Hall. Board members Kent Gonzales, Greg Peterson, Brian Larson, Ken Hoffman, Marc Lamere, and Planning Administrator George Mansfield were present. Carol Nathan arrived at 7:50 pm. Associate Members Tom Lane and David Freedman arrived at 7:55 pm and 9:00 pm, respectively.

Gretchen Caywood, assistant to the Planning Administrator, Alan Carpenito (BOS), Betsy Goldenberg (Pine Brook Road), Brian Grossman (Prince, Lobel, Glovsky and Tye), Sameer Parakkavetty (Nexus Wireless), David Maxson (Broadcast Signal Labs), Larry Sorli (Westford Street), Nancy Pierce (Westford Street), Peter Yelle (Cross Street), and Bob Zielinski (Carlisle Mosquito) were also in attendance.

The PB reviewed the draft minutes of June 25, 2007. Peterson moved to approve the minutes as drafted, Gonzales seconded and the motion carried 5-0-1, with Hoffman abstaining. The PB then reviewed the draft minutes of the June 28, 2007, special meeting. Peterson moved and Gonzales seconded the approval of the minutes as drafted, and the motion carried 3-0-3, with Epstein, Hoffman and Lamere abstaining.

Larson reported that he met with the Town Administrator on July 19^th to review the content of similar RFP contracts from other towns. He suggested that a ‘multiple winners’ approach be employed for reviewing submitted proposals, and added that while the current bylaws require a separate application for each site, this should perhaps be readdressed. When Epstein pointed out that there also may be needs for variances that must be presented to the ZBA concerning wireless proposals, Larson said that the contract terms will also be reviewed by the ZBA. Larson gave a goal deadline of the end of August for completion of a draft RFP document. Mansfield pointed out that the Town Administrator is in agreement that the draft RFP document must be reviewed by the PB before distribution.

Mansfield reported that William Costello has forwarded copies of the certified As-Built plan concerning this project, along with a copy of a final invoice (for our records) indicating that the finished course of pavement and the installation of trees have been completed. Costello has therefore requested that the PB be asked to vote to certify that the Subdivision is complete and that the security deposit and the remaining balance in the 53G account for this project can be released.

The next step is for Mansfield to document recent site changes and send them to the engineer. Then the PB engineer (Nitsch Engineering) can inspect the site. Mansfield explained that while the site was originally wooded, it has been developed and therefore several original proposed tree locations no longer make sense due to the presence (or absence) of other plantings and of utilities. Mansfield estimated that the engineer’s report could be available for the August 20^th meeting.

Mansfield reported that the applicant has requested a field change because one of the cisterns could not be placed as deep as originally planned, necessitating that the road be raised. This change increased the grade from 3% to 8% in the immediate area of the common drive roadway. The PB engineer has recommended that either the roadway be regraded or the hearing be reopened to discuss the proposed grading and that the plans be amended, if necessary.

Mansfield explained that if the slope change was more moderate and the road longer, the PB engineer would agree that it is a field change, but the PB also has the authority to decide that the 8% grade is suitable. Chair Epstein said he would like Mansfield to contact the applicant to determine which approach they are considering and indicated that it is ultimately up to the PB to decide whether any proposed change would be classified as a field change or whether the hearing must be reopened.

Mansfield reported that the applicant’s attorney had forwarded a request that the PB certify the completion of this subdivision and release the performance bond ($70,000) held by the Town Treasurer. He added that if the PB finds this not possible, applicant’s counsel has asked for an extension of time to complete any work the PB finds necessary. Since the final completion date is currently August 21^st, Mansfield recommended a short extension. Mansfield added that while a previous letter from LandTech (July 3^rd) had indicated that the subdivision was generally complete and consistent with plans, at that time the engineer did not have As-Built plans. The As-Built

The applicant said that she had spoken with her engineer regarding this recent LandTech review, and they believe that they should need only until the September 10^th PB meeting to complete any outstanding matters. The applicant reminded the PB of the December 11, 2006 letter to the PB listing what remained to be done at the project, and reported that most of the listed work has been completed.

Mansfield pointed out that another winter season will pass before the roadway can be accepted by the Town and therefore funds should be retained for plowing and winter maintenance if the applicant remains responsible for such. The applicant reported that the homeowners had funded this last winter, and that she expects they will again this winter. There is no formal signed document to this effect however. Mansfield said that documentation affecting the first four lots on the roadway known as Great Brook Path, should clearly indicate that the homeowners will cover these costs until the Town accepts the road as a public way. The maintenance of the roadway abutting the remaining 6 lots, which is and will remain a common drive, is and forever will be the responsibility of the property owners of such lots.

The PB discussed the points of the recent LandTech letter, and Mansfield recommended an extension of time to September 28, 2007. Peterson moved and Epstein seconded an extension of time for approval of the Definitive Subdivision Plan for Great Brook Estates to September 28, 2007. The motion carried 7-0. Chair Epstein directed the applicant to return to the PB in September with a detailed estimate of costs of any remaining work or evidence that all work has been completed and that all of LandTech’s concerns have been addressed.

The PB had endorsed this plan in August 2006, the purpose of which was to swap 2 small parcels of land between two building lots so that the house site on one of the lots can be moved further from wetlands. Mansfield explained that since this is registered land, the plan had to be filed in Land Court rather than in the Registry of Deeds. Land Court had found some minor errors in the dimension calculations, resulting in a lot area adjustment of 3 square feet. The Court also asked that the two small parcels created by the plan to allow a land swap between the two lots not be shown or labeled. Other changes that were requested by Land Court include changes in the lot numbers (from 79 and 80 to 83 and 82). Another requested change is the removal of the line delineating the Wetland/Flood Hazard Zoning (WFH) District and removal of the wetland flags. The PB expressed concern with removal of the WFH District line, since the plan notes show that the land is in the WFH District, leaving an observer to mistakenly conclude that all the land may be within the WFH District.

After discussion, the PB summarized three discrepancies in the plan which must be rectified before signing: (1) Note One needs updating with current lot numbers, and Notes 2 and 3, which refer to parcels that are now not shown on the plan, should be removed, (2) the plan label should be updated with the new lot numbers, and (3) the WFH District line must be added to the plan. The PB authorized one member to sign the plan once these discrepancies are rectified.

Gonzales moved and Peterson seconded the authorization of one of two specified PB members (Michael Epstein or Greg Peterson) to sign the plan once the notes and label of the plan have been changed as indicated, and that at discretion of the signatory a reasonable effort has been made by the applicant, working with Land Court, to put the

Chair Epstein appointed Associate Member Freedman to be Acting Chair of this continued hearing. Freedman reopened the hearing, stating that (1) in case of approval, the findings may set precedent and the Board will want time to refine them, (2) in case of denial, the reasons for denial will be equally, if not more important, and (3) as the board will want to review any conditions of approval, should approval be granted, and that he recommends that such review be done in open session in case more information is needed from the applicant, the hearing will most likely be continued until the September 10^th meeting. The applicant presented a new View Shed report to the PB. Peterson noted that one of the camouflage suggestions offered by the applicant for the monopole was the use of two-toned finish (for below and above tree line). When Peterson asked about the PB’s earlier suggestion of using background imagery on the pole, Grossman said that Omnipoint would likely not agree to that.

(3) Whether additional towers may be needed to eliminate coverage gaps between the proposed facility and the center of Town in the event of approval of a 60-foot tower or an 80-foot tower, and if so how many additional facilities may be needed? This information is important toward the goal of minimizing the number of towers in Town.

(4) The applicant’s possible use of different standards for what is considered an allowable coverage gap with an 80-foot tower and with a 60-foot tower. Why do they view the level of coverage improvement with an 80-foot tower acceptable when there would still be a coverage gap on Westford Street? Freedman noted that he hoped this would be clarified later in the hearing when Mr. Maxson will be able to explain the question he raised in his memo to the Board.

(6) Whether the tower significantly changes the appearance of this property so as to make it less “residential,” and whether such is a violation of the Zoning Bylaw relating to commercial use of a residence? Freedman referenced a memo to the Board from Peter Yelle concerning this question.

Other Board members suggested additional issues for consideration: Hoffman questioned whether approval would set precedence for future applications. Larson suggested the Board should address the question whether the applicant has any effective alternatives in providing service to this area. Gonzales suggested that the Board should consider appearance and aesthetics as one of the criteria of approval. Peterson and Larson also believed this issue to be important.

When wireless consultant David Maxson (BSL), was asked to summarize his recent written input, he said that Carlisle’s bylaw requires a clear demonstration of need for a tower height in excess of 60 feet, and recognizes that additional 60-foot structures may be needed to accomplish a desired coverage goal if a 60-foot monopole is

approved. Maxson indicated that the applicant has stated that a 60-foot facility would provide very little in-building coverage. However, the applicant has attempted to correlate in-building coverage with drive test data, which is not necessarily relevant with regard to in-building coverage. Also, the applicant is comparing in-vehicle data to that from computer models. Maxson questioned the accuracy of the computer modeling below the tree line. In addition, Maxson said that it is the first time a carrier has said to him that they are willing to settle for an ‘acceptable gap’ such as the gap in coverage that would remain even with an 80-foot tower. The applicant seems to be saying that the coverage would be ‘good enough’ with an 80-foot tower, but not a 60-foot, and Maxson questions this seeming inconsistency. The applicant could construct additional 60-foot towers if the current application was approved for 60-feet only, and may be back with more applications to fill the coverage gap even if an 80-foot tower is approved.

Epstein asked the applicant if they would consider using technologies such as DAS to bridge the anticipated coverage gap on Rt 225 between a proposed facility at St Irene’s in the center of Town and this facility if the PB were to approve a 60-foot tower for this site. Grossman said that while this may be possible, it would not address the applicant’s broader geographic goal of off-road coverage. Grossman said that DAS technologies generally result in only a ribbon of coverage along the line of their installation. In his opinion, an 80-foot tower would provide broader geographic coverage. Grossman said that if a 60-foot tower were approved, the applicant would require 4-6 additional sites to equal the coverage area provided by an 80-foot tower.

Larson expressed concern that while the applicant claims a broader coverage area with an 80-foot tower, the only actual data, drive test data, is along the roadway and therefore does not confirm this claim. Maxson added that many factors such as terrain and vegetation will be factors affecting coverage. He also pointed out that if a 60-foot tower is approved, the PB should keep in mind that this could result in more densely placed facilities for gap coverage.

Peter Yelle (Cross Street) said that in his opinion the terrain in the area of consideration should result in similar drive test data for both heights. Therefore the tests may be flawed. He felt that the deep ‘bowl’ in terrain along Westford Street in the area of consideration should have similar effects on the coverage for the 2 proposed towers so similar in height.

When Freedman asked the applicant for an update on potential co-locators for this site, Grossman said they have not received any responses to recent inquiries, although generally they are able to attract co-locators. He reported contacting Sprint/Nextel with no success. Maxson informed the PB that sometimes co-location can be required as a condition of the application. For example, the Cape Cod Commission requires that three co-locators be signed up before they will approve a cell tower. He added that providers will be reluctant to co-locate below 60-feet. Mansfield said that in his experience he has seen other carriers provide data about where they have located in other communities and at what heights. Grossman countered that such requirements of co-location are generally for Tower companies proposing facilities, not for individual carriers proposing to construct facilities on their own.

When Larson asked the applicant about using DAS, the applicant again discussed the more ribbon-like coverage area resulting from these smaller units, and said that permitting cannot govern the type of technology a provider uses, only the location of it. Maxson explained that by suggesting DAS, the PB is not attempting to govern the technology. While the FCC supports a technology neutral approach, the technologies being discussed are generally the same, consisting of a base station, a power amplifier, and an antenna. Maxson indicated that the PB is merely suggesting different antenna types, and is therefore not attempting to mandate technology. Maxson added that in Carlisle, however, it may be difficult to employ lower profile technologies due to the more varied terrain and the often greater distances between roadways. This could require more facilities closer together. Freedman pointed out that newer neighborhoods will likely not have poles for placement of DAS.

Peterson referred to the View Shed images provided by the Grossman this evening, and said that in his opinion, the proposed site would be mostly hidden even if 80 feet in height. The photos presented by the applicant heading west on Route 225 indicate that it would be very difficult to see the facility at all. The photos show that heading east on Rt 225, the site is visible for just a few seconds. He added that based on the general preferences of the PB and the intent of the bylaw, the proposed site would effectively achieve the desired camouflage goals using

trees, buildings, and the natural landscape. Peterson pointed out that the extra 20-feet does seem to make a visibility difference, as the site would not be visible at all at 60-feet. He asked if the Town is prepared to have a few slightly higher monopoles, but fewer of them, or would the Town rather have more but shorter monopoles. Peterson suggested that since the extra 20-feet of height preferred by the applicant would take the site outside of being completely stealth, a condition of permit approval could be that the applicant have a co-location contract in place before actually constructing the site. In this way, in theory, the PB would know there will be one less facility in Town.

Several PB members expressed concern with allowing an 80-foot monopole, particularly as the 60-foot would be generally concealed, and also that a 60-foot monopole is more in line with the bylaw. Larson pointed out that neither a 60-foot monopole nor a DAS system would be subject to a 900-foot setback requirement per the bylaw. Other PB members felt that if going to an 80 foot monopole would lessen the number of sites in Town, it should be allowed.

Nancy Pierce (Westford Street) was concerned that there is no commitment by the applicant to reduce the number of sites in Town even if this site is approved for an 80-foot monopole, and was concerned that this would be setting a precedent for future applications. Yelle (Cross Street) added that at this particular rural site, in his opinion a monopole would have great visual impact, and that this should be considered not just in terms of this site, but in terms of precedent setting. Larry Sorli (Westford Street), property owner of the proposed site, said that in his opinion the best way to have a monopole be the most unobtrusive is to leave it unpainted (grey color) with absolutely nothing hanging from it – i.e. not to be used as a flagpole.

When PB consultant Maxson was asked to comment on the applicant’s possible courses of action if this application is denied, Maxson pointed out three alternatives. The applicant could take the issue to Court against the Town, the applicant could hold off and resubmit this application at a later date, or they could readdress their application and reapply with another approach having a better chance of approval. When Larson confirmed from Grossman that the applicant is putting up a DAS system in Wellesley, Grossman indicated that the PB should not expect success at pushing the applicant toward using DAS by denying this application.

Epstein spoke to the uniqueness of this particular site, saying that it is hard to envision a similar site with similar setbacks from the roadway or other residences noting that there is only one house within 900 feet of the proposed site, which is quite rare in Town. Siting several sections of the Zoning Bylaws relevant to the wireless application, he pointed out that in general the bylaw does seem to move applicants to stealth facilities or toward the use of monopoles. Epstein added that Section 5.9.3.15 of the Zoning Bylaws does contemplate situations where PB can require a monopole at a height greater than that proposed by an applicant in order to accommodate future co-location and that such co-location opportunity may outweigh the detriments of the increased height. Epstein pointed out that the bylaw also allows setback waivers for monopoles up to 90-feet in height. He said that because other facility providers may be reluctant to co-locate below 80 feet the PB may want to consider a 90-foot monopole with an obligation on the applicant to co-locate as a condition to approval. Epstein asked Grossman to consider whether a 90-foot tower could ‘fill the gap’ in coverage on Westford Street between 1022 Westford and Town Center.

When Acting Chair Freedman took a straw poll of the PB’s opinions at this point, asking them to decide between (A) approving an 80-foot monopole, (B) an 80-foot monopole with required co-location, or (C) an 80+-foot monopole (up to 90 feet) with a required co-location, the PB was split, with two members not in favor of an 80-foot tower at this site at all. Therefore, the required five votes to approve the special permit may not exist for any of these options.

Grossman said that the applicant would have an issue with a co-location condition, since if they were not able to sign on a co-locator they could not build the site. Freedman suggested that the Town could require the applicant to build a site that would be suitable for a 90-foot monopole in the future, but to build only to 80 feet until a co-locator is found. He also recommended that a condition that required co-location be discussed with Town Counsel. Larson also suggested that the issue of the legal precedence of this decision be explored.