Massachusetts Court Okays Amateur Radio Tower, Citing Board of Appeals' Error
From ARRL de WD1CKS@VERT/WLARB to QST on Thursday, July 22, 2021 16:27:14
A judge in the Massachusetts Land Court has ruled that the Zoning Board of Appeals in the City of Framingham "erred" in revoking a building permit for an 80-foot ham radio tower as an accessory use. The Building Commissioner in Framingham had granted ARRL member Mikhail "Misha" Filippov, KD1MF, a building permit for the tower, and Filippov had begun pouring concrete for the tower footings. Neighbors complained, however, and the Zoning Board of Appeals revoked the permit, citing the setback requirements of the city's wireless communications facilities (WCF) special permit bylaw. Land Court Judge Howard Speicher reversed the Zoning Board of Appeals' decision and ordered the town building commissioner to reinstate the permit.
"The City of Framingham has provided, for the benefit of amateur radio operators, exemptions from its zoning requirements from the construction of radio antenna towers for amateur radio operators," the court noted. This case was not settled on the basis of PRB-1 considerations, but strictly on which setback requirements should apply. PRB-1 requires local governments to reasonably accommodate amateur radio installations.
The Zoning Board of Appeals had argued that Filippov's project plans failed to meet setback zoning requirements, but the Land Court determined that the board could not enforce this, because of an exception that exempts structures, including amateur radio towers, from these requirements as long as a building permit is issued.
The court ruled the Zoning Board of Appeals "erred in overturning the decision of the Building Commissioner to issue a building permit for the erection of the proposed radio antenna tower."
The WCF bylaw's definition of a tower is very broad, and the ham's tower appeared to fit within that definition, causing the Zoning Board of Appeals to require the WCF setback of structure height plus 20 feet. The next sentence in the same WCF paragraph, however, requires that "any such facility shall be a minimum of 300 feet from a residential zoning district or residential use."
The Zoning Board of Appeals had suggested that Filippov re-apply for a more central location on his lot. The court recognized, however, that amateur radio towers, under the Framingham bylaw, are exempt from special permit requirements.
"By its decision, the Board has taken the position that it may pick and choose which of those requirements will remain applicable to uses that are, by the explicit terms of the bylaw, exempt from the special permit requirement," the Land Court ruled. "No reasonable reading of the bylaw permits this unfettered exercise of discretion."ÿ