Lenox, MA

2022 Proposed Town of Lenox Wireless Ordinance

Listen to top Telecom Attorney, W. Scott McCollough: VOTE NO on Proposed Town of Lenox Wireless Telecommunications Facilities (WTFs) Ordinance

Substantial Written Evidence of Adequate Wireless Carrier Signal Strength (dBm) for three main Wireless Carriers for Telecommunications Service in Lenox, MA from Oct 28, 2022

First, please read the Lenox, MA Wireless Zoning Bylaws re: Wireless Telecommunications Facilities (WTFs)

  • Link to Current 2021 WTF Zoning Bylaw (a little outdated, but still quite good)
  • Link to Proposed 2022 WTF Zoning Bylaw Amendment (an unnecessary and significant weakening of protections from irresponsibly-placed WTFs)

2022 Town of Lenox Wireless Zoning Bylaw Work

Source

Contact Info

  • Gwen Miller (413) 637-5500 ext. 1203
  • Planning Board, 6 Walker St., Lenox, MA 01240

Lenox Wireless Zoning Bylaw Update

Oct. 2022 Update: The Planning Board is currently working on a final draft of a Wireless Communications bylaw to bring to a November 2022 Special Town Meeting (date: NOT on Nov 17 as communicated on the Town of Lenox web site as of 4:00 pm on Nov 3, but on Dec 8, we think). Please check this web page for the most current “working” draft.

The Town of Lenox has engaged with David Maxson of Isotrope, LLC to assist in a number of tasks related to this Zoning Bylaw amendment. His materials are available in the links, below. Prior to each Planning Board meeting, staff compiles, distributes and posts a meeting packet. These packets are available in the “Meeting Packet” tab on the web site and listed below on this page. Meeting recordings are also available on the web site and listed below on this page.

  • Link to current_xxx Town of Lenox Wireless Telecommunications Facilities (WTFs) Bylaw
  • Link to Draft Zoning Bylaw
  • Link to Drive report and maps
  • Link to June 28th Powerpoint Presentation from David Maxson of Isotrope, LLC

Wireless Zoning Bylaw Meeting Packets

Source

  • Link to November 15, 2022 Meeting Packet – this was not posted until 1:00 pm ET on Nov 15, 2022
  • Link to Oct 25, 2022 Meeting Packet
  • Link to Oct 18, 2022 Meeting Packet
  • Link to Oct 18, 2022 Meeting Packet addition
  • Link to Oct 11, 2022 Meeting Packet
  • Link to Sept 27, 2022 Meeting Packet
  • Link to Sept 27, 2022 Meeting Packet addition Special Event Signs
  • Link to Sept 27, 2022 Meeting Packet addition Temporary Signs
  • Link to Sept 27, 2022 Meeting Packet addition Definitions for Bylaws Section 4
  • Link to Sept 27, 2022 Meeting Packet addition

Wireless Zoning Bylaw Meeting Recordings

Source

  • Link to Nov 8, 2022 Meeting Video Recording — this 3:20:00 Sharepoint video file it is difficult to view and scrub (it stutters) and it reports “player cannot load”: Lenox PB-20221018_181108-Meeting Recording.mp4
  • Link to Oct 25, 2022 Meeting Recording — this 3:20:00 Zoom video file can be viewed
  • Link to Oct 11, 2022 Meeting Video Recording — this 3:27:00 Sharepoint video file it is difficult to view and scrub (it stutters) and it reports “player cannot load”: Lenox Planning Board-20221011_180341-Meeting Recording.mp4
  • Link to Oct 3, 2022 Meeting Video Recording — Meeting postponed due to technical difficulties — this 2:21:00 Sharepoint video file it is difficult to view and scrub (it stutters) and it reports “player cannot load”:Postponed Planning Board Meeting-20221003_182552-Meeting Recording
  • Link to Sept 13, 2022 Meeting Video Recording — this 2:46:00 Sharepoint video file it is difficult to view and scrub (it stutters) and it reports “player cannot load”:Planning Board-20220913_180235-Meeting Recording.mp4
  • Link to Jun 28, 2022 Video Meeting Recording — this 3:02 Zoom video file can be viewed.

Wire America’s Response to Letter To the Editor, The Berkshire Eagle

Kate McNulty-Vaughan, Lenox Planning Board member, Nov 1. 2022 wrote the Letter to the Editor. Wire America comments are in green boxes, below.

Statement: The writer is a member of the Lenox Planning Board seeking to express her own personal viewpoint and not that of the board.

Wire America: Uh oh. This member of the Lenox Planning Board must now recuse herself from deliberating or voting on the town’s proposed Wireless Telecommunications Facilities (WTFs) ordinance because her words that follow are evidence of her bias in the deliberations. Non-voting members of the public can express opinions on issues before a vote, but the public holds appointed board members to higher standards. It would be unethical for Ms. McNulty-Vaughan to not recuse herself, given the following evidence of a bell that she cannot unring, at this point.

After reading Phil Gilardi’s inflammatory letter (“Letter: Why I oppose Lenox’s new cell tower bylaw pitch,” Eagle, Oct.15.) urging citizens to attend town meeting and vote down a new wireless bylaw, I wondered if he and I were at the same meeting and wished he’d done some fact-checking first.

Wire America: Inflammatory? I don’t see that. Here is Mr. Gilardi’s brief letter:

To the editor:

I attended the Tuesday Lenox Planning Board meeting on the new cell tower zoning bylaw and found that it will allow large, ugly and radiation-generating cell towers in residential areas possibly within 150 feet of any home in Lenox. The bylaw is also being written to make it extremely difficult (if not impossible) for residents to sue the town if one objects to a cell tower near their front yard or line of sight.

The existing cell zoning in Lenox protects residential areas by limiting cell towers to commercial or industrial zoned areas. Without this protection cell companies can build towers anywhere they please, and if that’s near your home, you are out of luck. Until the new bylaw protects residential areas to an equal degree as the existing bylaw, it should not be accepted at the Nov. 17 special town meeting.

If you want residential protection in Lenox from cell towers, I recommend you attend this meeting.

Phil Gilardi, Lenox

Planning Board members are trying to accomplish the impossible: threading the needle and rewriting a wireless facilities zoning bylaw to provide cellphone coverage and capacity, a dire need in town and source of fear for some. Neighbors along East Street and the Dale can’t make an emergency call when they need police or fire assistance. Summer visitors can’t use their cellphones to find a place to eat or sleep, like the Wisconsin family with a daughter at Boston University Tangle-wood Institute whom I met on the sidewalk.

Wire America: The task is certanly not impossible. Many communities across the US have passed protective WTF ordinances and zoning laws that restrict Wireless Telecommunications Facilities (WTFs) of any size or any “G” to only commercial and industrial zones (Petaluma, CA, Dalton Garden, ID and Stockbridge, MA to name just a few). Cell phone coverage (in the form of significant gap in telecommunications service address by the least intrusive means) is addressed in the 1996 Telecommunications Act as shaped by U.S. Courts of Appeals, 1st Circuit rulings, but capacity for information services (wireless broadband) has no preemption at all in the laws.

Mr. Gilardi recommends that Lenox citizens stick with the current [Wireless Telecommunications Facilities (WTFs)] bylaw. What’s wrong with that? The Planning Board is still debating siting standards, and searching for feasible, suitable locations.

Wire America: Identifying suitable locations for responsibly-sited WTFS is the goal. Feasible is the problem here. Feasible by which standards? Feasible by Wireless industry cost considerations? Feasible by preserving residential character and property values? “Feasible” is the loophole through which the Wireless industry sails its 30 aircraft carrier war ships daily. Hint: Avoid the word feasible in the bylaw.

The reference to a tower 150 feet to your home or mine intentionally stirs up flames of fear for citizens concerned about cell towers.

Wire America: It is not about concerns, only about evidence. In fact, it is about evidence that is already in the Town of Lenox public record that the Lenox planning commissioners are not reading, as they must. There is no fear-mongering in Mr. Gilardi’s statement. His statement is backed up by 11,000 pages of evidence (27 volumes in pdf format) establishing that the FCC RF microwave radiation is not protective. The DC Cir. judges accepted this evidence in their record and based their ruling on this very evidence, leading to the following Aug 13, 2021 mandate:

On Aug 13, 2021, the US Courts of Appeals, DC Circuit ruled in Case 20-1025, Environmental Health Trust, et al. v FCC — a lawsuit that challenged the legality of the FCC’s attempted de facto rule-making, a sneaky maneuver that tried to extend its current RF microwave radiation exposure guidelines to frequencies above 6,000 MHz, without any reasoned decision-making. The judges caught the FCC and remanded FCC Order 19-126 back to the FCC, invalidating the Order.

The DC Circuit judges ruled the following in Case 20-1025:

“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,

  • (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,
  • (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and
  • (iii) address the impacts of RF radiation on the environment.”

Wireless radio frequency microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each state or locality can regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas that are accessible to human beings and other living organisms, consistent with the 11,000+ pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and others plaintiffs placed in the FCC’s public record: Vol-1, Vol-2, Vol-3, Vol-4, Vol-5, Vol-6, Vol-7 Vol-8, Vol-9, Vol-10, Vol-11, Vol-12, Vol-13, Vol-14, Vol-15, Vol-16, Vol-17, Vol-18, Vol-19, Vol-20, Vol-21, Vol-22, Vol-23, Vol-24, Vol-25, Vol-26 and Vol-27.

Mr. Gilardi says the existing bylaw protects “residential areas by limiting cell towers to commercial and industrial zoned areas” — except it doesn’t. It pinpoints five residentially zoned lots clustered along the bypass, which might seem commercial or industrial to him but are not.

Wire America: Residential zones generally contain homes. Do the five residentially zoned lots clustered along the bypass have any existing homes? If not, then the Town of Lenox can rezone these lots as “commercial and industrial zones” and then proceed under the existing bylaws. Problem solved.

While he recommends a no vote unless the new bylaw can protect residential areas to “an equal degree as the existing bylaw,” those five parcels mentioned above don’t meet the Federal Communications Commission standard, according to recent court cases. And they won’t protect the town from an unwanted tower application, a dead end with undesirable or worse siting consequences.

Wire America: Recent court cases? Which recent court cases? Please provide specific citations. Certainly the rulings in none of the following recent US Courts of Appeals rulings (in 2019, 2019, 2020 or 2021) indicate that those five parcels mentioned above don’t meet the Federal Communications Commission standard, because the FCC clearly has no jurisdiction over local zoning laws — as upheld by the US Supreme Court in its 2005 ruling in Palos Verdes v Abrams.

He fails to note that both the new and existing bylaws contain similar purposes and regulatory constraints: “providing for adequate Personal Wireless Service Facilities and Towers to be developed” while regulating “consistent with the Telecommunications Act of 1996,” and the necessity, like it or not, to “comply with FCC regulations,” which are technically and legally complex.

Wire America: As one can read in U.S. Code Title 47 §332(c)(7)(C) Definitions

(i) the term “personal wireless services“ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
(ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and
(iii) the term “unlicensed wireless services” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services(as defined in section 303(v) of this title).

These terms, further explained:

  • personal wireless services = telecommunications service = the ability to make an outdoor wireless phone call
  • commercial mobile services = a cell phone subscription for telecommunications service
  • unlicensed wireless services = wireless telecommunications services using Wi-Fi (think of Wi-Fi calling)
  • common carrier wireless exchange access services = the ability for a wireless phone to make calls via telecommunications service to other phones: legacy, copper switched landline phones, voice-over-Internet-Protocol (VOIP) phones or other commercial mobile service phones

The current Town of Lenox Wireless Telecommunications Facilities (WTFs) bylaws already comply with the 1996-TCA and need only comply with certain FCC orders — those that are consistent with the authorizing statute (the 1934 Communications Act, as amended in 1996 and 2012) and for which the FCC has properly established its authority. That means some provisions of FCC orders do not apply.

To suggest that the new bylaw is “being written” to thwart a suit by a resident objecting to a tower near their front yard is puzzling and downright insulting. Board members spend countless hours reading pertinent documents and inviting and listening closely to public comments.

Wire America: Downright insulting? In what way? Zoning laws allowing heavy industrial equipment (Wireless Telecommunications Facilities) in residential zones is the issue. If local laws allow this, then local residents cannot sue to stop this from happening. Also, did Ms, McNulty-Vaughan spend any hours reading the following documents that are already in the Town of Lenox public record? The public needs to know. Town of Lenox Planning Board members, please read these 11,000+ pages of peer-reviewed, scientific evidence, discuss and deliberate on this matter and let us know what you think about this evidence: Vol-1, Vol-2, Vol-3, Vol-4, Vol-5, Vol-6, Vol-7 Vol-8, Vol-9, Vol-10, Vol-11, Vol-12, Vol-13, Vol-14, Vol-15, Vol-16, Vol-17, Vol-18, Vol-19, Vol-20, Vol-21, Vol-22, Vol-23, Vol-24, Vol-25, Vol-26 and Vol-27.

Which chair you sit in seems to determine what you hear at a meeting.

Wire America: This statement is meaningless. Ms. McNulty-Vaughan has no personal knowledge about Mr. Gilardi’s state of mind or about his ability to hear. Please dismiss, accordingly.




Town of Lenox Planning Board Meetings re:
Wireless Telecommunications Facilities Ordinance Revision


Planning Board — June 28, 2022

6.28.2022 Comment 1

6.28.2022 Comment 1 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


6.28.2022 Comment 2

6.28.2022 Comment 2 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


6.28.2022 Comment 3

6.28.2022 Comment 3 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


Planning Board — Oct 3, 2022

10.3.2022 Comment 1

10.3.2022 Comment 1 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


10.3.2022 Comment 2

10.3.2022 Comment 2 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


10.3.2022 Comment 3

10.3.2022 Comment 3 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


Planning Board — Oct 11, 2022

10.11.2022 Comment 1

10.11.2022 Comment 1 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


10.11.2022 Comment 2

10.11.2022 Comment 2 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.


10.11.2022 Comment 3

10.11.2022 Comment 3 Rebuttal

Explanation re: so-called “small” Wireless Telecommunications Facilities (sWTFs) goes here.