West Tisbury ZBA wants DAS review
By Susan L. Silk
Published: December 24, 2009
Members of the West Tisbury zoning board of appeals (ZBA) agreed unanimously last week to seek a legal opinion on the question of whether they have jurisdiction over utility poles located on town-owned roads. At issue is whether American Tower Corporation must apply to the ZBA for special permits to construct a distributed antenna system (DAS).
ATC believes it does not. The ZBA disagrees.
At issue is one of the regulatory hurdles ATC must contend with as it moves to create a DAS program to improve wireless communication in the three up-Island towns.
In a letter dated December 14, addressed to the ZBA, Alex P. Gamota, ATC DAS director, said, "Massachusetts zoning by-laws and ordinances do not apply to the public ways. Therefore, these components of ATC's DAS, which will be located within public rights of way, are not subject to local zoning. The authority to regulate such equipment located in the public ways is generally given to the boards of selectmen in Massachusetts towns, and is subject to `grant of location' notice and hearing requirements."
Mr. Gamota said that in 2008 the ZBA's attorney and its telecommunications consultant provided the same view of the law to the ZBA.
At a meeting of the ZBA on December 16, ATC officials said the company plans to move forward with the approval process and seek the necessary "grant of location" from the town selectmen for use of the utility poles along the town's right of way.
ZBA member Tucker Hubbell disagreed with the ATC view and any link to an earlier legal opinion the ZBA received.
In the earlier opinion, Mr. Hubbell said the ZBA had asked counsel "if the zoning covered whip antennae on existing poles, and we got an opinion on that question."
Mr. Hubbell said the ZBA never asked if zoning laws covered antennas put on new poles.
DAS relies on a series of radio access nodes, connected to small antennas set on telephone or replacement stub poles erected specifically to distribute cellular telephone signals. Fiber optic cable is also strung between the antenna poles to carry the signals along. A central hub referred to as a "hotel" houses the carrier's signal-generating equipment. Although the range is considerably less than in conventional, tall-tower systems, DAS appeals to communities where a high conventional tower is unwelcome but wireless telephone service is poor.
Also discussed at the Wednesday meeting was the issue of state jurisdiction. A number of the proposed poles fall within the state's right of way.
ATC legal counsel Ken Spigel said there was clearly a difference of opinion. He suggested the ZBA seek its own legal counsel. The board agreed.
