Westport News

The Zoning Board of Appeals hereby submits for filing in your office the following record of its proceeding and decision on the petition of Omnipoint Communications Inc. (Applicant) for a variance on land located at 96 Charlotte White Road.

RECORD OF PROCEEDING AND DECISION

Pursuant to a Notice of Public Hearing that was duly published in the Westport Shorelines on August 24, 2006 and August 31, 2006, posted on the Town Hall Bulletin Board and mailed to owners, petitioners, abutters, owners of land directly opposite on any public or private street or way, abutters to the abutters within three hundred feet of the property line of the applicants; also notified were Town of Westport Planning Board, Town of Westport Building Department, Town of Dartmouth Planning Board and the City of Fall River Planning Department.  A public hearing was held on Wednesday, September 6, 2006 at the Westport Town Hall, 816 Main Road, Westport, MA on the above petition for a variance to install and to operate a wireless telecommunications facility on land located at 96 Charlotte White Road owned by Roger J. and Regina C. Chandanais, said property is more particularly shown on Assessor’s Map 68, Lots 8 & 8A on deed recorded in the Bristol County (S.D.) Registry of Deeds in Book 1582, Page 83.

Acting Chairman Gerald Coutinho opened the hearing at 7:12 p.m.  Other members serving were Kendal Tripp, Christopher Graham, Glenn Mauk and Barbara Hanley.  Mr. Coutinho read the Notice of Hearing and the Abutters List aloud.

Attending also were Attorney Robert Scarpello, representing Omnipoint Communications, Inc. and Raphael Velazquez, Technical Engineer for Omnipoint Communications, Inc.

September 6, 2006
Attorney Scarpello stated that Omnipoint Communications is applying for a use variance in order to construct a wireless communications facility at 96 Charlotte White Road because the property
is located in an agricultural/residential area outside of the overlay district but this site will create an area of seamless coverage, which is required by the FCC Licensing Authority. The facility would consist of a 140’ monopole, which can accommodate a nine-panel antenna that can accommodate E-911 and GPS. The facility is run by battery with a generator backup in case of a major power outage. The area will be fenced in and unmanned but will be checked manually once a week.  Attorney Scarpello stated that a dimensional variance would be needed also, to accommodate a 100 percent fall zone out to Charlotte White Road. The hardship demonstrated is the land characteristics.  The visual impact to the area would be minimal.  This parcel of property is a large parcel with good setbacks.  Attorney Scarpello noted that this does not cause pollution or traffic and is passive in nature; it is not a detriment to the public but instead a help.  Attorney Scarpello reviewed other area cell towers:  Cross Road, Dartmouth (107’), Main Road, Westport (155’), Crandall Road, Tiverton, RI (150’) and Forge Road, Westport (190’).  Attorney Scarpello presented propagation maps and charts showing existing coverage and proposed coverage, as well as photos taken of a test balloon for visual impact in the area.

Ms. Hanley asked if Omnipoint could co-locate with the tower located on Route 177. Attorney Scarpello stated that Omnipoint was trying to create a grid and basically have coverage on all the main roads in Westport.  There will be a slight overlap in coverage but it will fill in the gaps. In the future, Omnipoint may need to come back before the Zoning Board of Appeals because there may not be a high percentage of coverage.  Attorney Scarpello explained that there were teams that go out and check coverage rings, which are created to secure seamless coverage.

Mr. Coutinho called on abutters for comment.

Ms. Agnes Gifford, 91 Charlotte White Road, voiced concerns over noise, lightening strikes and whether there was enough land to accommodate the facility.
Attorney Scarpello stated that there is no sound, only the sound of a fan running; the pole is grounded so it will not attract lightening and there will be no radio or television interference, also the property has good setbacks.

Mr. David McClure, 8 Oakstone Way, voiced concern over site coverage.
Attorney Scarpello stated that there is a 140’ setback from Charlotte White Road.  The width of the monopole is no more than a flagpole.  Should the pole fall, it is designed to break apart at its’ midpoint.

Mr. Coutinho stated that cell phones are a reality, and according to Federal Law, municipalities have a responsibility to find locations for them, especially if there is a proven need.

Mr. Todd Oliver, 2 Oakstone Way, voiced concern over where the pictures were taken from in an easterly direction, but not from a westerly direction.  Mr. Oliver also asked if there would be a light on the top of the pole.  Mr. Oliver felt that the tower on Route 177 should be looked into for use, whereas it is close enough to the proposed site.
Mr. Mauk questioned the fact, that if the pictures were taken looking in an easterly direction, would it show a different impact.
Attorney Scarpello stated that there would be no light and the tower located on Route 177 would not reach out to the proposed site.

Ms. Hanley stated that the Zoning Board of Appeals refused two prior applications, but we are dealing with Federal Law and the Town was taken to court on the issue and the Town lost.  If
there is a gap in the coverage, it must be closed.  Ms. Hanley stated that some companies have cell technology that is weaker in strength, thus causing them to have a shorter area for coverage, which means they need more towers.  

Attorney Scarpello stated that Omnipoint has to prove the least intrusive to any area, which is why they have construction teams go out and survey.  Attorney Scarpello then stated that Mr. Raphael Velazquez was a frequency expert and he would sign an affidavit stating the area of coverage.

Mr. Velazquez stated that towers can give a ten-mile radius but cell phones can’t carry that far, that is why there is a need for the towers.  Range will vary with each site due to the topography, density and population of the area.  Mr. Velazquez said that there are teams who walk the sites and they are barred from any wetland areas; once an area is found, if it is not buildable, the construction teams go back out.

Mr. McNally, Building Inspector, questioned how many carriers could be on this tower.  
Attorney Scarpello stated that there could be three, including Omnipoint, which is also known as T Mobile.  Each company uses their own cabinets. Attorney Scarpello also stated that backup electrical generators are very rare and will not be used at this site. The only exception would be for a prolonged power outage, in which a portable generator would be brought in.

Mr. Coutinho stated that the Zoning Board of Appeals has approved a pole at Tripps’ Boatyard and it is used as a flagpole.  Also noted, was the encouragement of tower co-location for other carriers on existing towers.  Mr. Coutinho asked about the practicality to camouflaging the tower.  Attorney Scarpello stated that the pole would be painted a neutral color and generally a galvanized steel color which is non-reflective is used to fence in the area.

Mr. Coutinho asked if Omnipoint was amiable to allowing a municipality to locate a antenna on the pole for municipal use. Attorney Scarpello stated that they have agreements with third parties, which is allowed without monetary compensation to the lessor.   Also, various boards put conditions in their decisions to remove the tower, such as putting up a removal bond.

Motion made by Ms. Hanley to continue this hearing to September 27, 2006 at 7:00 p.m. in order for Omnipoint to provide propagation simulation with the existing tower on Route 177 and to see if there is height available on the tower in order to co-locate.  Second by Mr. Graham.  
All in Favor, Unanimous.

September 27, 2006
Acting Chairman Gerald Coutinho called the Zoning Board of Appeals continued hearing to order at 7:02 p.m.  

Members present were Christopher Graham, Kendal Tripp, Glenn Mauk and Barbara Hanley.

Also present were Attorney Scarpello and Raphael Velazquez.

Mr. Coutinho stated that this continued hearing was to give Omnipoint the opportunity for to locate other existing towers, and particularly propagation for the Route 177 tower.

Attorney Scarpello presented a color-coded map of the areas of coverage.  The tower is needed to meet the FCC license, which requires a seamless coverage.  The existing pole on Rte. 177 is 190’ and has a range of 1.3 to 1.5 mile coverage; whereas a 2.0 mile coverage area is needed.  There is some overlapping but not enough.  Attorney Scarpello stated that the pink area on the chart shows proposed new coverage and the green area shows existing coverage.  The height has to be basically the same across the network; keeping in mind, that a tower too high can cause problems, the same problems will exist if the tower is too low.  The computer input to produce the propagation maps included topography of the terrain, trees and dealing with a rural/suburban area.  The type of antenna, power, equipment and the surrounding environment are all figured into this.  A team was sent out and the results pointed to the area on Charlotte White Road.  There will be no noise; it is setback 140’ from Charlotte White Road and 127’ from the side lot line.

Ms. Hanley stated that she would like to move this forward, but in the future, she requested that the company go to the Route 177 tower for any expansion.

Mr. Velazquez stated that the Route 177 tower was not in the search range and the goal of Omnipoint is to co-locate on existing towers due to cost factor.  For the record, the site on Charlotte White Road is now a high priority site to provide coverage for the area. The FCC has not called upon a carrier for a field or gap in coverage but that does not mean that the possibility does not exist.  Omnipoint does not have free reign to construct poles and Omnipoint must work with the Town and its’ bylaws in addition to having to work with the FCC on areas of coverage.

Mr. Coutinho asked if other carriers could use this proposed tower and whether other companies use the same type of network technology; also can other wireless carriers pick up Omnipoints’ dead areas.

Attorney Scarpello stated that each carrier operates on different frequencies and channels, which is why antennas have to be at least 10’ apart.

Mr. Velazquez stated that depending on the company agreements, some companies work together, especially when it comes to roaming arrangements.

Motion made by Ms. Hanley to close the hearing at 7:36 p.m. Second by Mr. Graham.  All in Favor, Unanimous.

Motion made by Mr. Graham to approve the application of Omnipoint Communications, Inc. for a variance for a wireless telecommunications facility as per plans and site plans submitted.  The facility will consist of a 140’ monopole with the capability to add on in the future; the tower will allow up to three (3) carriers as shown on plan; the facility will be built on a 40’ x 40’ compound and surrounded by arborvitae; a $13,000.00 removal bond will be obtained, subject to approval
by Town Counsel; approval must be sought from the Building Inspector on any building requirements; and the Town of Westport will have use of the tower for antennae, free of charge.  Second by Ms. Hanley.  All in Favor, Unanimous.

Motion made by Mr. Graham to adjourn the Board of Appeals meeting at 8:00 p.m.  Second by Ms. Hanley.  All in Favor, Unanimous.

Mr. Coutinho advised Attorney Scarpello that there is a twenty-day appeal period once the decision of the Zoning Board of Appeals is filed with the Town Clerk.  On the twenty-first day, Attorney Scarpello could have his copy of the decision certified by the Town Clerk and it must be recorded at the Registry of Deeds (S.D.).

The Board notes that any and all other relief not specifically granted is hereby denied because it was not pursued during the public hearing and, therefore, the burden of proof was not satisfied.

Any person aggrieved by a decision of the Zoning Board of Appeals may appeal to the Superior Court Department in which the land concerned is situated or to the Land Court Department or to the division of the District Court Department within whose jurisdiction the land is situated by bringing an action within twenty (20) days after the decision has been filed in the office of the Town Clerk.  Notice of the action with a copy of the complaint shall be given to such Town Clerk as to be received within such twenty (20) days in accordance with M.G.L.  Chapter 40A, Section 17.

Upon expiration of twenty (20) days from the date of this decision, without an appeal filed for the dismissal or denial of an unsuccessful appeal, it shall be the responsibility of the Petitioners to obtain the signature of the Town Clerk to the certification and to record this decision and the certification of the Town Clerk in the Bristol County (S.D.) Registry of Deeds.

If the rights authorized by a variance are not exercised within one year of the date of granting such a variance, they shall lapse and may be re-established only after notice and a new hearing pursuant to Chapter 40A, Section 10.

UNDER MASSACHUSETTS GENERAL LAWS, THIS DECISION AND NOTICE OF GRANTING OF A VARIANCE SHALL HAVE NO LEGAL EFFECT UNTIL IT IS RECORDED IN SAID REGISTRY OF DEEDS.