Massachusetts court clears amateur radio tower, citing appeals board error

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07/22/2021

A Massachusetts Land Court judge ruled that the City of Framingham Zoning Board of Appeals “erred” in revoking a building permit for an 80-foot amateur radio tower as an incidental use. The Framingham building commissioner had granted ARRL member Mikhail “Misha” Filippov, KD1MF, a building permit for the tower, and Filippov had started pouring concrete for the footings of the tower. Neighbors complained, however, and the Zoning Appeal Board revoked the permit, citing the city’s backlash requirements on special permits for wireless communication facilities (WCF). Land court judge Howard Speicher overturned the zoning appeal board’s decision and ordered the city’s building commissioner to reinstate the permit.

“The town of Framingham has granted exemptions from its zoning requirements for the construction of radio antenna towers for amateur radio operators for the benefit of amateur radio operators,” the court noted. This case was not settled on the basis of PRB-1 considerations, but strictly on the withdrawal requirements that should apply. PRB-1 requires local governments to reasonably accommodate amateur radio installations.

The Zoning Appeal Board had argued that Filippov’s project plans did not meet setback zoning requirements, but the land court determined that the board could not enforce it, due to an exception that exempts structures, including amateur radio towers, from these requirements as long as a building permit is issued.

The court ruled that the Zoning Appeal Board “erred in overturning the construction commissioner’s decision to issue a building permit for the erection of the proposed radio antenna tower.”

The WCF rulebook definition of a tower is very broad, and the Ham Tower seemed to fit that definition, leading the Zoning Appeal Committee to require WCF to remove the height of the structure plus 20 feet. The following sentence in the same WCF paragraph, however, requires that “any such installation must be at least 300 feet from a residential zoning district or residential use.”

The Zoning Appeal Board had suggested Filippov re-apply for a more central location on his land. The court, however, recognized that amateur radio towers, under the Framingham regulations, are exempt from special permit requirements.

“By its decision, the council has taken the position that it can choose which of these requirements will remain applicable to uses which, according to the explicit terms of the regulation, are exempt from the special permit requirement,” the land court said. “No reasonable reading of the regulations allows for this unhindered exercise of discretion. ”


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