Zoning Board of Appeals: do cell phones deserve a zoning variance?

The Zoning Board of Appeals held a public hearing on Thursday, August 26, about a proposal from Verizon Wireless to install equipment for cellular telephone and data service on the roof of a Beacon St. apartment building, located between Coolidge Corner and Washington Square. Assigned to the hearing were the board’s chair Jesse Geller, a lawyer, joined by Mark Zuroff, a lawyer, and Christopher Hussey, an architect.

Zoning restrictions: Like many other communities, Brookline restricts cellular service equipment proposed for residential areas. Seeking an exception, Verizon was represented by Michael S. Giaimo, a lawyer from Robinson and Cole in Boston, and by Martin Lavin and George Evslik from the company’s technical staff. Also on hand were representatives from its contractors for this proposal: Daniel Hamm of Hudson Design in North Andover, a telecommunications engineer, and Eric Wainwright of Structure Consulting in Arlington, an installation manager.

Verizon’s representatives described a “coverage gap” along Beacon St. between Coolidge Corner and Washington Square. That and the nearby part of Washington St. are located in a valley between Corey Hill to the north and Addington Hill to the south. The two hills and some of the buildings block signals to and from existing Verizon equipment. The proposed installation, they said, would fill the “coverage gap.”

Section 4.09 of Brookline’s zoning bylaw regulates such installations, known in the bylaw as “wireless communications” and “wireless telecommunications” (WTc) antennas, facilities and equipment. As modified by town meeting in 2005 and 2010. this portion of the zoning bylaw currently reads, in part:

“[Section 4.09] 6. Use Regulations
“a. Wireless communications antennas and facilities shall not be located: (1) on any of the following structures: residences, public schools, hospitals, nursing homes or historical sites; (2) within 50 feet of any residence, nursing home or hospital; (3) within 50 feet of any historical site….”

Since Beacon St. in Brookline is listed on the National Register of Historic Places, at the proposed location WTc installations are apparently banned by all three subsections: on a residence, within 50 feet of a residence and within 50 feet of a historical site. The Building Department said a variance from Section 4.09.6.a would be needed. Much of the hearing was spent on whether circumstances justify a variance.

Searching for a site: The representatives of Verizon described searches for non-residential locations and said they had not found any suitable for the purpose. Potential locations were either on low-rise buildings, they said, or were too far away to help. Janice Kahn, a Precinct 15 town meeting member who has worked on WTc issues for many years, said Verizon should consider Brookline’s Fire Station 7, at 665 Washington St.

The Washington St. location Dr. Kahn pointed to is less than 300 ft from the location Verizon proposes to use. It is not subject to some of the restrictions for WTc equipment. Mr. Lavin of Verizon said the fire station had been investigated, but it has a steeply pitched roof with “no way to locate an antenna inside.” However, the fire station also has a hose-drying tower, about as tall as the building Verizon now proposes to use.

There are other alternatives. Dr. Kahn proposed distributed antenna systems, used in south Brookline to fill coverage gaps after many years of disputes over other approaches. Verizon representatives did not respond clearly to that proposal, suggesting that in high-density areas they were somehow impractical. Dr. Kahn objected, saying they are “ubiquitous in New York City [and] appropriate for commercial areas.”

Seeking a variance: Requirements for variances are not regulated by Brookline. Instead, they are specified by Chapter 40A of the Massachusetts General Laws, in Section 10. A key element is whether, for the property in question, the Zoning Board of Appeals can reasonably find that:

“owing to circumstances relating to the soil conditions, shape 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, a literal enforcement of the provisions of the ordinance or bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or bylaw.”

One problem for Verizon is that, according to its representatives, the M-2.5 zoning district on middle Beacon St. generally suffers from weak cellular service, not just the property where it proposes to install equipment. Another is that Brookline’s bylaw says purposes of its regulations are to “encourage location of antennas on existing commercial buildings and structures rather than on residential ones….” [in Section 4.09.1]

Panel members seemed clear that Massachusetts and Brookline law did not justify a variance and sounded likely to deny one, but then they stepped back. Mr. Giaimo, Verizon’s lawyer at this hearing, said to the Appeals panel that under the Federal Telecommunications Act, “you have the authority to grant a variance.” He may have been trying to invoke controversial Section 332 of the 1996 act.

A federal case: Section 332 of the federal law says local authorities may not act “so as to prohibit the provision of personal wireless services.” That could be a red herring. In response to questions, Mr. Lavin of Verizon, supported by others, had affirmed that “there is some coverage, but it’s weak.” In other words, Brookline did not “prohibit the provision of personal wireless services.” Instead, Verizon wants to improve services but appears to resist added costs of such measures as outfitting Fire Station 7 or installing distributed antenna systems.

Panel members, apparently unfamiliar with the federal law, decided to continue the case in order to review it. They invited Mr. Giaimo to return at 7 pm on a fateful 13th anniversary this Thursday, September 11. More such cases look likely in the future, since the Brookline Housing Authority made an agreement with a company this summer to install WTc facilities at its buildings. Those are not on “town owned” property and will probably be regulated in the same ways as the apartment building now at issue on Beacon St.

– Beacon staff, Brookline, MA, August 30, 2014


Levin V. Czubaroff, Cell tower companies face a heavy burden of proof to succeed in a validity challenge to a zoning ordinance, Fox Rothschild (Philadelphia, PA), September, 2013

John C. Drake, Hang-up in Brookline’s cell antenna effort as neighbors object, Boston Globe, November 20, 2008

Bridget Samburg, Spotty reception slowing Brookline’s cell tower, Boston Globe, February 27, 2005

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