West Tisbury ZBA says DAS needs permits
By Susan L .Silk
Published: January 28, 2010
There is new legal static in West Tisbury for supporters of the effort to construct an up-Island distributed antennae system (DAS) for wireless telephone communications. Legal counsel for the West Tisbury zoning board of appeals (ZBA) has concluded that, if the company proceeds with plans to construct a DAS system, the town's zoning bylaws will require American Tower Corporation (ATC) to apply for 24 special use permits, one for each proposed antenna to be installed on utility poles along the town's public rights of way.
In an opinion dated January 15 and obtained by The Times, legal counsel Mark Bobrowski of Concord wrote that section 8.8 of the West Tisbury Zoning By-Law (ZBL) regulates wireless communication facilities and, according to that bylaw, "no tower, transmitting antenna or wireless communication facility shall be erected, constructed or installed without first obtaining a special permit form the zoning board of appeals."
Mr. Bobrowski also wrote, "I have not been provided with information to suggest that the DAS is anything other than a 'tower, transmitting antenna or wireless communication facility.' Therefore I conclude that the DAS requires a special permit for each node."
DAS relies on a series of radio access nodes, connected to small antennae set on telephone or replacement stub poles erected for the specific purpose, to distribute wireless signals. Fiber optic cable is also strung between the antenna poles to carry the signals along. A central hub or "hotel" houses the signal-generating equipment of carriers that lease the system. Although the range is considerably less for each antenna than would be the case for a tall cell tower, DAS appeals to communities where a high conventional tower is unwelcome but wireless telephone service is poor.
In December, members of the ZBA agreed unanimously to seek a legal opinion on the question of whether they have jurisdiction over utility poles located on town-owned roads. ATC, the company selected to construct a DAS system in Aquinnah, Chilmark, and West Tisbury, said it did not. The ZBA disagreed.
ZBA vice-chairman Tucker Hubbell, who is skeptical about the need for a DAS system in West Tisbury, told The Times in a telephone call that the next move is up to ATC, which has yet to apply for any permits from the ZBA. "We are waiting for the ATC to respond. It's in their ball park," he said.
Asked what would happen if ATC chose to bypass the ZBA and apply directly to the selectmen for a grant of location, Mr. Hubbell said, "I do not know what happens if some one chooses not to come before us." Mr. Hubbell declined to speculate further for the record.
Alex Gamota, ATC project manager, told The Times in a telephone conversation that the corporation is "trying to understand the opinion."
Mr. Gamota said that based on local ordinances, state statutes and case law, DAS is exempt from the special permit process in West Tisbury. Mr. Gamota said that ATC may need a "couple of weeks" to determine its next steps, although it is continuing to negotiate contracts in Chilmark and Aquinnah that will govern the right of way and hub lease issues there. Both Chilmark and Aquinnah planning boards have approved ATC permit requests.
"What we are trying to do is look at all of the options and see if there any options available to us that will meet the schedule of being on air next summer," Mr. Gamota said.
ATC would build the system. However, wireless providers must sign up to lease the DAS system. ATC would provide the towns a percentage of the lease fee.
"If we move forward, depending on what that is, the carrier involvement will have to be there," Mr. Gamota said. To date only T-Mobile has expressed any interest in becoming a DAS user, and Mr. Gamota said that the T-Mobile letter of interest is still limited to just that - an expressed interest but not a firm commitment.
Tower twist
Another twist to the story relates to wireless provider AT&T, which on January 21 received ZBA approval to construct a new 75-foot metal tower at the Martha's Vineyard Airport. The company currently uses a 30-foot wood tower.
The tower will provide space for two other "co-locators" or carriers wishing to provide or improve cell phone coverage in the West Tisbury area. Mr. Hubbell, who has maintained that his town has adequate wireless coverage and has no need for DAS, told The Times that he believes construction of the new tower will happen very quickly.
Asked if AT&T's planned new tower would affect the DAS project, Mr. Gamota said, "Well it is good news for AT&T and all of us trying to improve the capacity and coverage for this area, and they can act quickly. But it does not change anything for DAS. We designed DAS in response to the towns' RFP, and if a carrier has or doesn't have coverage in an area and wants that coverage we will build. If there is no interest in that area, ATC will not build."
According to Mr. Gamota, the higher AT&T tower will only slightly improve coverage. He explained that a traditional tower is 125 to 150 feet high with cell phone coverage extending about two miles from the tower. At 75 feet, the coverage will extend only half to a third of that distance.
"It is better than nothing but does not mean that DAS in West Tisbury goes away," Mr. Gamota said. "But we might not build out some nodes."
Avoid court
Following receipt of the legal opinion, West Tisbury selectman Richard Knabel, a member of the Up-Island DAS study committee and DAS supporter, sent Mr. Bobrowski an email provided to The Times.
Mr. Knabel asked Mr. Bobrowski to clarify the distinction between private property and town-owned property for the establishment of public right of ways (ROW).
"In my opinion all nodes are subject to the ZBL [zoning bylaws]," Mr. Bobrowski wrote Mr. Knabel. "While ATC may claim to only require a grant of location from the BOS where the node will be within the town's ROW and no municipal approval whatsoever where the node is in the state layout, section 8.8-2 of the ZBL clearly states that all wireless facilities require a ZBA special permit. I side with the ZBL until proven otherwise."
Mr. Knabel told The Times that he is looking for clarity from the state department that regulates utilities, including ATC.
"We need a referee, and I do not want that referee to be a judge," Mr. Knabel said. "It is in the best interests of everyone to keep this out of the courts."
