Friday, January 25, 2002
Board of appeals denies variances for cell tower
The Carlisle Board of Appeals (BOA) voted unanimously last week to deny the variances requested by American Tower Corporation (ATC) and co-applicants to site their cell tower at 662 Bedford Road, on property offered by David Duren.
Specifically the board "denied the relief sought by the applicants because, based on the evidence of record:
1. the applicants have not satisfied the criteria for the granting of a variance stated in the Massachusetts General Laws Chapter 40A section 10, and
2. denial of all variances sought by the applicants will not result in a violation of the Telecommunications Act of 1996.
The application is also denied to the extent, if any, that it is interpreted as seeking a special permit."
The BOA has every expectation that the applicants will proceed to court to override their decision. In anticipation, the board seemed particularly thorough and careful during its two meetings on January 14 and 16. Although the final document of findings does not have to be completed until January 31, the board fleshed out their positions on all major areas.
Three levels of regulations
There are three levels of regulations governing the board's decisions. The first, as stated in the Massachusetts General Laws, Chapter 40A, section 10, has to do with soil conditions, shape and topography of the land. The board wasn't asked to give any variance from this law. Members Sauer and Eliassen agreed, "This is not even an issue."
The second level of regulation comes from the Carlisle Cellular Communications bylaw, written just this past year. Sauer stated, "We must deal with the two setbacks and height issues of the [cell-tower] bylaw." The Carlisle bylaw requires that a wireless tower be setback a minimum of 900 feet from a residential structure and 1.5 times the height of tower from the lot line. Maximum tower height is 150 feet, on a site where there is a tree canopy. (without a tree canopy the maximum height is 120 feet.) American Tower needs three variances from the by-law.
'Hardship' for cell companies
In order to grant the variances, the board looked at the issue of hardship. This issue stems from the Telecommunications Act of 1996 (the third level of regulation) which requires the cell companies to offer complete and seamless coverage. The cell companies claim that if they are unable to offer this service, their license to operate could be withdrawn. Hardship on the part of the applicants has meant that they have a gap in service and that no other land is available to site their 150 foot cellular monopole. Much of the evidence presented by the cell phone companies along with American Tower related to this issue.
The gap in coverage was discussed first. Although abutter evidence was received to the contrary, the board accepted the applicants' proof that a gap in service really did exist. Eliassen spoke and the board agreed that, "The board finds that the gap exists as demonstrated in the evidence presented by the radio frequency engineers, and that the applicants' evidence is more persuasive than the abutters'."
Other sites exist
On the issue of other available land, the board disagreed with the applicant's claims stating, "The board has not been persuaded that there are no alternative sites available." The members pointed to other property, offered by David Woodward on Bedford Road, and another large land owner, Jack Anderegg, also on Bedford Road, who had not been contacted by the applicants.
The board agreed with the applicants that no matter what property was offered, variances would be needed. However, "The amount, degree, and number of variances would be less." Eliassen said, "We believe [that an alternate location] would affect fewer residents and need fewer variances."
The board needs to make the case that the town does not place a "substantial prohibition" on the cell tower companies in denying this variance. This is language from the Telecommunications Act of 1996. By insisting that there are alternate sites that the applicants did not adequately explore, and that these sites are easily available, the board hopes that they have made their case. In the case of the Woodward property, most of the land in question has been put under Chapter 61, and 61A, an agriculture restriction. However, removing the small portion of land necessary to site this tower in that property would not be difficult. In the case of the Angeregg property, the applicants claimed that the house on this 39-acre site, was an historic one, which placed additional constraints on the building of a cell tower. The board denied that it was a historic property.
Town and federal lands
Although the town owns much conservation land, Eliassen pointed out that "It would be unfeasible to put the tower on such land in Carlisle." Such siting would require a change of use that must be approved by a 2/3 vote at Town Meeting and a vote of the state legislature.
However, the board was not persuaded that a large parcel of federal land located in the gap area of Carlisle is unavailable. Since the Telecommunications Act takes some priority in the use of federal land, it may well be possible that the wildlife refuge can be used for a tower. About the necessity of being so specific, Sauer said, "We want to show the judge where to look for it."
Finally, the board decided that granting a variance would mean a "substantial derogation" of the town's wireless communication bylaw, and further that other sites would require less of a derogation.
'Hardship' for abutters
The hardship issues as they affect the abutters are real. Simply stated, the board found a lot-line setback of 57 feet for a 150-foot tower inadequate for safety, aesthetics, and property value issues. Eliassen reminded the board that, "Because the variance was not granted, we don't have to deal with substantial detriment." This ruling will be delivered to the town clerk by January 31. Although the board's job is complete for now, it is certain that the issue is far from being resolved.
© 2002 The Carlisle Mosquito