STAFF REPORT - Bedford, NH
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STAFF REPORT To: Bedford Town Council From: Rick Sawyer, Town Manager Date: February 4, 2021 Re: Chubbuck Road – Proposed Cell Tower Lease BACKGROUND On November 14, 2018 the Council adopted a policy that they should only consider proposals for wireless telecommunication facilities on Town owned land following a public hearing where the abutters are notified. On November 2, 2020 a request from Verizon Wireless was received looking to see if the Town would lease a portion of land off of Chubbuck Road for a 130’ monopole tower. The abutters to the Chubbuck Road property have been notified and a notice was published in the Bulletin of the hearing date and time. The general area being requested has been the subject of proposed towers in 2003, 2015, and 2017. The 2003 proposal gained all necessary approvals but was never built. The 2015 proposal did not gain all necessary planning and zoning approvals and was ultimately withdrawn. The 2017 proposal was consider by the Council and following a public discussion the Council chose to reject the request and indicated that no proposal for this site would be considered for one year while a committee was formed to look cell phone towers, their placement, affects, usage, etc. In March of 2018 the zoning ordinance was amended by the voters to require a tower setback of 750’ from any residentially zoned parcels and to limit the height of towers to 75’ in the R&A and GR zoning districts. This site is in the R&A district. The setback requirement has left the Chubbuck Road site as one of three potential parcels in Town that can meet the 750’ setback requirement (see diagram to the right). During the 2017 discussion Chief Bryfonski provided an update on our existing emergency communication system and our needs going forward which showed our greatest priority being in the southeast portion of the community with the second priority being in the northwest. The southeast need has been addressed with new equipment on the Station Road and State Police towers. We would need to evaluate the proposed tower location to see if it would be beneficial to the system and what the cost impacts would be.
DISCUSSION As noted on November 2, 2020 a request (attached) from Verizon Wireless was received looking to see if the Town would lease a 100’ x 100’ portion of land off of Chubbuck Road for a 130’ monopole cellular tower. The Council is under no obligation to provide a lease for a tower as this is simply a request to see if the Town as property owner is interested in having this on its land or not. No federal rules or requirements come into play in this decision. Should the Council come to an agreement with Verizon (or any other tower company) it would not relieve the company of needing to proceed through the Zoning and Planning Board aspects constructing a tower in the community. Telecommunication towers are permitted in all zones by Special Exception which are reviewed by the Zoning Board of Adjustment that would be followed by a required site plan which is reviewed by the Planning Board. Abutters would be notified of the hearings to be held by both boards. No exact lease area location was requested and the materials indicate that a mutually agreeable location would be found but as noted above there is a fairly limited portion of the site that would meet the zoning setback requirement. The previous sites near the former firing range appear to no longer meet the 750’ zoning setback so the location would need to move a little further to the west, or northwest, or southwest to comply or a variance would be needed by the applicant if an area outside of the setback requirement is chosen. The proposed tower at 130’ would need a variance from the 75’ maximum height allowed. A formal lease area plan and site plan would be developed should the Council choose to enter into an agreement. The Chubbuck Road property is approximately 123 acres and contains our capped landfill and transfer station along with a portion of the highway garage and public walking and ski trails. The property is abutted by residential properties to the east along Magazine Street, to the South by Spring Hill Road, Harvard lane, Balsam Court, and Rolling Woods Drive, to the west along Powder Hill Road, and to the north along Chesterfield Place with Riddle Brook Elementary School further to the north. Verizon has not identified any other companies that would be allowed on the tower but allowing for co-location is a requirement of the Bedford ordinance and an industry standard. It is likely that any agreement would need to be to provide the Town the ability to locate our emergency communications equipment on the tower at the highest location. As part of the proposal Verizon has provided coverage maps (attached) which indicate a gap in service. Representatives from Verizon will be at the Council meeting to present their proposal and to answer questions. In 2017 we had the coverage maps reviewed by an independent consultant who agreed that there was a gap in coverage for Verizon. As the new coverage maps are so similar to those produced in 2017 and there have been no other towers constructed in this area since 2017 it does not appear that independent analysis is necessary for the Council’s decision but if the project were to move forward it may be required by the Zoning Board. If the Council chooses to not grant a lease and Verizon finds a privately held property in the area to address their gap in coverage they will be able to show the Zoning Board that they attempted to locate on a site that met the setback requirement. STAFF REPORT, Town of Bedford, NH 2 of 3
COST AND FUNDING
The pricing proposals include 3 options ranging from $24,000 to $30,000 base annual rent with a 2%
annual escalator with options with and without revenue sharing for co-locators. The proposal does
not currently include payments for holding the option or for the inclusion of town equipment on the
tower. Should the Council choose to move forward with allowing Verizon to proceed a decision will
need to be made on which option is acceptable or if a counter proposal should be made.
For reference in 2017 Blue Sky proposed $19,500 base annual rent with a 3% annual escalator, 15%
of value of any subleases, $800 option fee, an additional $800 if the option is extended, and for the
Town’s equipment to be located on the tower at no cost.
RECOMMENDATION
It is recommended that following the public hearing the Council review the materials provided and
make a determination as to authorizing the Manager to negotiate a lease on the Chubbuck Road site
or not. The Council may enter a non-public session under RSA 91-A:3, II(d) to consider the lease of
real property but is not obligated to.
RECOMMENDED MOTIONS
Option 1: Enter a non-public session
I MOVE THAT THE TOWN COUNCIL at the conclusion of all other business tonight enter into a
non-public session to consider the proposed lease by Verizon Wireless.
Option 2: Authorize the Town Manager to enter lease negotiations
I MOVE THAT THE TOWN COUNCIL authorize the Town Manager to enter into lease
negotiations with Verizon Wireless for a cell tower location on Chubbuck Road with the final
lease to be reviewed and approved by the Council.
Option 3: Deny the request
I MOVE THAT THE TOWN COUNCIL not enter lease negotiations with Verizon Wireless for a
cell tower lease on the Chubbuck Road property at this time.
* * * * *
EXHIBITS …
A. Verizon Proposal
B. Location Map
STAFF REPORT, Town of Bedford, NH 3 of 3
CHRISTOPHER A. SWINIARSKI
Admitted in MA and NH
McLane Middleton, Professional Association
900 Elm Street
Manchester, NH 03105
Direct Dial: 603.628.1322
Email: christopher.swiniarski@mclane.com
January 5, 2021
Rick Sawyer, Town Manager
Town of Bedford Town Council
24 North Amherst Road
Bedford, NH 03110
RE: Supplemental Information Requested by Town Council for Verizon Wireless Proposal
to Lease Town Owned Land (“Proposal”) at Chubbuck Road (“Property”)
Greetings Board Members:
I represent Verizon Wireless with respect to the above-referenced proposal, in
collaboration with Chip Fredette of SAI Communications. The purpose of this correspondence
is to provide the additional materials requested by the Council in response to Mr. Fredette’s
proposal submitted on or about November 2, 2020. A copy of that initial proposal is attached
hereto as Exhibit A. The balance of the materials submitted herewith include a pricing proposal
at Exhibit B, and coverage maps at Exhibit C. We address each in turn below.
Exhibit A - Proposal
The proposal is for Verizon Wireless to develop an approximately 130’ monopole at the
Chubbuck Road property owned by the Town of Bedford (the “Property”). The exact location
and details of the facility are largely flexible and lend themselves to mutual collaboration
among the Town and Verizon Wireless in achieving a final design.
It is important to note that 47 U.S. Code § 332, commonly referred to as the
Telecommunications Act of 1996 or the (“TCA”), does not directly apply to the Town Council’s
decision to allow or deny any carrier to lease or otherwise occupy town owned property for the
development of wireless communication facilities. The TCA preempts state and municipal
regulations that have the effect of prohibiting wireless service, like zoning or other siting
regulations. But the TCA does not compel a landowner, public or private, to make its land
available to a carrier for any reason. As a landowner, the Town of Bedford can simply say “no”
to the proposal. The Town need not state any reason or justify its decision in any way.
McLane Middleton, Professional Association
McLane.com
Indirectly however, the TCA offers the Town of Bedford an immense benefit if it allows
Verizon Wireless to locate its facility on town owned land. That benefit is control – an active
voice, as a landlord, in negotiating the precise details of using the Property that the Town owns.
Conversely, if Verizon Wireless must build its facility on private property, the Town of Bedford
largely loses its voice and control over the facility design.
There is no question as to whether or not a wireless facility will be built in this area of
Bedford. The coverage maps submitted as Exhibit C show the gap in service that Verizon
Wireless suffers in this area of Bedford. Because the TCA preempts local zoning regulations
that have the effect of prohibiting wireless service, Verizon Wireless and other FCC licensed
carriers have the right to provide service in this area. If that service is provided from a facility
on private property, the Town’s control over the facility is limited to the zoning bylaw, much of
which is preempted by federal law. On the town owned Property, the Town’s control is limited
only by the agreement it makes with the carrier.
Exhibit B – Pricing Proposal
The pricing proposals attached at Exhibit B offer three slightly different pricing
structures that are commensurate to the wireless market in New Hampshire at this time.
Exhibit C – Coverage Maps
The coverage maps at Exhibit C show existing coverage in the north central area of
Bedford (page 2), as well as the anticipated coverage that would result from a Chubbuck Road
facility at a height of 130 feet (page 3). As you can see, major parts of Wallace Road and New
Boston Road suffer from a lack of quality service, along with the surrounding neighborhoods of
these major thoroughfares. Additionally, the limited coverage that is provided in north central
Bedford by surrounding facilities is shown on page 4, color coded to show which areas are
served by which specific facilities. Page 5 shows how these existing facilities are relieved by the
proposed facility, providing better service to many areas of Bedford for overall improved
wireless coverage in a vast part of Bedford.
Summary
In speaking with several members of the Town Council, we realize that some voting
members may have a pre-disposition to reject the proposal before you based upon a
categorical opposition to wireless communication facilities. That is completely within the Town
Council’s prerogative. We hope, however, that the additional information we have provided in
this submission will help to dispel the myth that a “no” vote from the Town Council means
there will be no wireless facility in this area. The exact opposite is true. A “no” vote from the
Town Council means Verizon Wireless will have to work with private landowners to develop a solution to the coverage needs in this area. In that case, the Town of Bedford will have extremely limited decision making authority in developing that solution, and will forego rent revenue on otherwise non-utilized land. Sincerely, Christopher Swiniarski Attorney for Verizon Wireless
EXHIBIT A Initial Proposal
Exhibit B
Pricing Proposals
Option #1
5 year land lease with four five-year extensions
Rent of $30,000 for year 1, increasing by 2% each successive year thereafter
Option #2
5 year land lease with four five-year extensions
Rent of $27,000 for year 1, increasing by 2% each successive year thereafter, plus
10% revenue share for any other carriers locating on the tower and ground space thereafter
Option #3
5 year land lease with four five-year extensions
Rent of $24,000 for year 1, increasing by 2% each successive year thereafter, plus
Town maintains control of all other ground space at the facility and leases to other tower users as
it sees fit)
Exhibit C Coverage Maps
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