VOTE NO on Town of Lenox, MA 2022 proposed WTF Ord. Dec 2, 2022
Lenox, MA Proposed Wireless Ordinance, Dec 3, 2022
Re: the 11.15.2022 Town of Lenox Planning Board Meeting . . .
Re: Wireless [Tele]Communications [Facilities (WTF)] Bylaw, Proposed November 15, 2022
- The 2022 Town of Lenox proposed WTF Ordinance (latest version) is roughly 5,500 words and is designed to replace the current 7,000 words of the “Wireless Telecommunications Overlay District”, which one can read here.
- The version of the 2022 Town of Lenox proposed WTF Ordinance to be discussed on Nov 15, 2022 was first posted on City of Lenox Web site at 1:00 pm on Nov 15, 2022, five hours before the planned meeting at 6:00 pm on Nov 15, 2022
- The MA Open Meeting Law requires giving the public 48 hours of business days notice for the information on what the ‘open body; (the Planning Commission) will be deliberating.
On Nov 14 and Nov 15, 2022, the public noticed the Town of Lenox City Clerk, City Manager and Planning Staff notice that the Town of Lenox is violating MA Open Meeting laws by attempting to continue to hold a meeting of the Planning Commission on Nov 15, 2022 without giving the public 48 hours of business days to review the documents upon which the deliberations depend.
The Evidence is Clear:
- https://wireamerica.org/ma/open-meeting-law/ — see Section 20
- The page at the second link, above, said until 1:00 pm on Nov 15, 2022: “Meeting packet with agenda, minutes, draft Zoning Bylaw and correspondence will be posted on the Lenox Town website by Tuesday, November 15″
- The information that follows was finally posted at 1:00 pm on Nov 15, 2022 — well beyond the deadline for proper due process for this deliberation.
The easy fix to this problem is reschedule the Planning Commission meeting from Tue Nov 15 to a later date (Possibly Tue Nov 22) and to re-publish both the notice and the materials at least two business days ahead of the rescheduled meeting.
For the planned Nov 15, 2022 meeting, in order to properly conduct a deliberation on the revised Wireless Ordinance, the Town of Lenox would have needed to post the materials available to the public by 6:00 pm on Thu Nov 10. This is why:
- Thu Nov 10 — when complete meeting packet need to be made available to the public
- Fri Nov 11 — Veterans Day (not a business day)
- Sat Nov 12 — not a business day
- Sun Nov 13 — not a business day
- Mon Nov 14 — Business day one
- Tue Nov 15 — Business day two
Zoning Bylaw Amendment for Special Town Meeting . . . Scheduled for Dec 8, 2022
Wire-America: In the information that follows Wire America is recommending certain [additions] and
subtractions; the rationale for any recommended changes are contained in green boxes, like this one.
- First, all references to Wireless Communications Facilities must be changed to Wireless Telecommunications Facilities, to be consistent with the the 1996 Telecommunications Act (1996-TCA)
- In addition any bastardization of terms by Wireless industry consultants and lobbyists such as David Maxson for Isotrope, LLC must be corrected, including but not limited to the following:
- All instances of collocation, must be changed to co-location and have the meaning established in FCC Orders implementing the 2012 Spectrum Act, quoted below
Title 47 U.S. Code § 1455 (a) Facility modifications
“(1) In general. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
(2) Eligible facilities request. For purposes of this subsection, the term “eligible facilities request” means any request for modification of an existing wireless tower or base station that involves—
- (A) collocation of new transmission equipment;
- (B) removal of transmission equipment; or
- (C) replacement of transmission equipment.
(3) Applicability of environmental laws. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act  or the National Environmental Policy Act of 1969.”
Nov 29, 2022 Update: 11-29 revisions, 11-28 version with updates from 11-15 meeting, 11-22 meeting, SL and PK recommended edits and comments to discuss
Town of Lenox Planning Board
- Wireless [Tele]communications Bylaw
- November 14, 2022
- [Proposed] Zoning Bylaw Amendment for Special Town Meeting [Vote on Dec 8, 2022]
8.18 Wireless [Tele]communications Facilities
The purpose of this bylaw is to establish general guidelines for the locating of Wireless [Tele]communications Facilities, including without limitation, Wireless [Tele]communication Towers, Antennas, ground equipment, and related accessory structures. The intent of this bylaw is to:
Accommodate the growing need and demand for Wireless [Tele]communications Services.
Establish review procedures to ensure that applications for Wireless [Tele]communications Facilities are compliant with federal, state, and local regulations and acted upon within a reasonable period of time as required by applicable state and federal regulations.
Minimize the impacts of Wireless [Tele]communications Facilities on surrounding land uses by establishing standards for location and compatibility.
Encourage the placement of Wireless [Tele]communications Facilities on existing non-residential structures thereby minimizing new visual, aesthetic, and public safety impacts, or effects upon the natural environment and wildlife.
Respond to the policies embodied in the Telecommunications Act of 1996 and subsequent FCC regulation of wireless Facility placement in such a manner as not to unreasonably discriminate between providers of functionally equivalent Personal Wireless Services or to prohibit or have the effect of prohibiting Personal Wireless Services.
Protect the character of the Town while meeting the needs of its citizens to access Wireless [Tele]communications Services.
Comparison: Lenox, MA 2021 WTF Bylaw | Proposed Lenox, MA 2022 WTF Bylaw | 2022 Dalton Gardens, ID WTF Bylaw
|1||Link to Current 2021 Lenox, MA WTF Bylaw||7,000||25||100%||???|
|2||Link to Proposed 2022 Lenox, MA WTF Bylaw||5,500||20||79%||$10,000+|
|3||Link to 2022 Dalton Gardens, ID WTF Bylaw||17,750||65||254%||$8,500 flat fee|
2021 Zoning Bylaw Purpose = Resident-Friendly
Proposed 2022 Zoning Bylaw Purpose = Wireless Industry-Friendly
The purpose of the Wireless Telecommunications Overlay District (WTOD) is to protect the Town’s scenic, historic, natural and other resources while providing for adequate Personal Wireless Service Facilities and Towers to be developed in the Town of Lenox, and to:
The purpose of this bylaw is to establish general guidelines for the locating of wireless [tele]communications facilities, including without limitation, wireless [tele]communication towers, antennas, ground equipment, and related accessory structures. The intent of this bylaw is to:
Dalton Gardens WTF Bylaw Purpose = resident-friendly
The purpose is
- to promote the health, safety, and general welfare of the people of the City of Dalton Gardens;
- to protect property rights; and
- to protect the important environmental features and scenic, historical, natural, and man-made character and appearance of the City;
. . . while simultaneously . . .
- ensuring adequate public facilities and services
- by providing standards for the safe provision, monitoring, and removal of cell towers and other personal wireless service facilities
- consistent with applicable federal, state and local laws and regulations.
Consistent with the balancing of interests which the United States Congress intended to embed with the TCA, Chapter l3 is intended to serve as a Smart Planning Provision, designed to achieve the four (4) simultaneous objectives of:
- (a) enabling personal wireless service providers to provide adequate personal wireless services throughout the City so that City residents can enjoy the benefits of same, from any FCC licensed wireless carrier from whom they choose to obtain such services, while
- (b) minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage,
- (c) preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the City’s communities, residential areas, and individual homes, while
- (d) complying with all of the legal requirements which the federal Telecommunications Act of 1996 (hereinafter “the TCA”) imposes upon the City, when the City receives, processes and determines applications seeking approvals for the siting, construction and operation of cell towers and./or other personal wireless service facilities.
The City seeks to minimize, to the greatest extent possible, any unnecessary adverse impacts caused by the siting, placement, physical size, and/or unnecessary proliferation of personal wireless service facilities, including, but not limited to, adverse aesthetic impacts, adverse impacts upon property values , adverse impacts upon the character of any surrounding properties and communities, and the exposure of persons and property to potential dangers such as structural failures, icefall, debris fall, and fire.
The City also seeks to ensure that, in applying this section, the Planning and Zoning Commission is vested with sufficient authority to require applicants to provide sufficient, accurate, and truthful probative evidence, to enable the Commission to render factual determinations consistent with both the provisions set forth hereinbelow and the requirements of the TCA, when rendering decisions upon such applications.
To achieve the objectives stated herein, the City seeks to employ the “General Authority” preserved to it under Section 47 U.S.C.A. §332(c)(7)(A) of the TCA to the greatest extent which the United States Congress intended to preserve those powers to the City, while simultaneously complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C.A. §332(c)(7)(B) of the TCA.
8.18.2 Application and Permits Required
Installation, modification or operation of a Wireless [Tele]communication Facility on property other than a public way shall require a Special Permit (BA) (ZBL 3.4) or Administrative Approval (AA). Completion of a Lenox Wireless [Tele]communications Facility Application form available from the Land Use department is required for each Wireless [Tele]communication Facility being requested. Application processing fees for Wireless [Tele]communications Facilities shall be paid at the time of application in accordance with the Town of Lenox Fee Schedule.
|[Co-]location (unless the [Co-]location qualifies as an Eligible Facility)||BA||BA||BA||BA||BA||BA||BA||BA|
|Eligibility Facility Request per 47 USC §1455||AA||AA||AA||AA||AA||AA||AA||AA|
AA = Administrative Approval; BA = Special Permit; N = Not Permitted
8.18.3 Determination of Need
Demonstration of Need: All applications for Special Permits for Wireless [Tele]communications Facilities (except Eligible Facilities Requests) shall be accompanied by a Demonstration of the Need for the proposed Facility. Demonstrations of Need shall include at a minimum an evaluation of existing coverage and the combined effect of existing and proposed coverage, including coverage maps and an accompanying narrative explaining the maps and the need. When the stated Need for the proposed Facility includes claims regarding network capacity, applicants shall include information (such as network statistics) demonstrating the capacity need quantitatively.
Determination of Alternatives: All applications for Special Permits for Wireless [Tele]communications Facilities (except Eligible Facilities Requests) shall be accompanied by a demonstration of a lack of less impactful solutions composed of one or more alternative Facilities.
Findings: To approve such applications, among other findings, the Zoning Board shall find that there is a Demonstrated Need for the proposed Facility that cannot be addressed with a solution composed of one or more alternative facilities that have a lesser impact on the community.
Applicant Assertion of Federal Rights: If the application involves a project over which the applicant asserts federal rights, the applicant shall provide a brief outline of the relevant law and the applicant’s standing, and include such substantial evidence as is necessary to demonstrate applicant’s claim. Examples of such rights are: claims of effective prohibition or discrimination if denied, or assertions that a design qualifies as a Small Wireless Facility or an Eligible Facilities Request.
8.18.4 Facility Impacts
8.18.4(A) Qualitative Criteria
The selection of location and design of WCFs shall conform to the following Qualitative Criteria:
Review Criteria: The Zoning Board, in its review, shall engage with the applicant to assess the following preferred Qualitative factors, each of which shall be given substantial consideration in deliberations to approve the proposal, or to examine alternative sites.
Application Submission Criteria: The applicant shall provide substantial evidence why and how they meet or cannot meet each of these objectives and define why and how their proposal is demonstrably better:
New Personal Wireless Service Facilities shall not have an undue adverse impact on historic resources, scenic views, residential property values, or natural or man-made resources.
Ideally, a new Wireless [Tele]communication Facility shall be located on an existing non-residential structure (including an existing Tower) in a manner that does not materially increase its impact on the community.
The preferred locations for each New Tower are along commercial and industrial corridors or in suitable municipal locations or other quasi-public sites where the settings, other structures, and intensity of uses already in place are more compatible with the industrial nature of wireless facilities. Remote locations on largely undeveloped areas may be acceptable if the result is a New Tower that is generally not visible to the public.
While setback requirements are included in this bylaw, it is preferred that New Towers be located as far from residential lot lines as possible to avoid detrimental visual impacts and adversely affecting property values, and to preserve the privacy of adjoining properties.
New Towers may be acceptable when they do not diminish the quality of experience of Lenox such as by piercing valuable scenic and historic skylines, or unduly compromising the look of traditional land development and use.
8.18.4(B) Quantitative Criteria
As a complement to the Qualitative factors and at the discretion of the Zoning Board, new Wireless [Tele]communication Facility types shall be considered in accordance with the below preferences.
Where a lower ranked alternative is proposed, the applicant must provide in its application relevant information demonstrating:
- that diligent efforts were made to adhere to the established hierarchy within the search area, and
- that higher ranked options are not technically feasible, practical, or justified given the location of the proposed Wireless [Tele]communication Facility, and/or
- that the impact of the proposed Facility is demonstrably better than any available higher priority solutions.
Location preferences are as follows:
|1st preference||Concealed [Co-]location on a non-residential structure, or Attachment to existing Tower (not a Substantial Change)|
|2nd preference||Camouflaged [Co-]location on a non-residential structure|
|3rd preference||[Co-]location (not Concealed or Camouflaged) on a non-residential structure except Substantial Change to existing base station or Tower|
|4th preference||Substantial Change to existing base station or Tower (i.e., not an Eligible Facilities Request) New Camouflaged or Concealed Tower|
|5th preference||New Tower|
|6th preference||[Co-]location on a residential structure|
Before any New Tower or any [Co-]location on a residential structure is approved, the applicant must demonstrate that it is not feasible or effective to locate their Facility on an existing Tower or non-residential structure. Before a New Tower is proposed in a residential district, the applicant must also demonstrate that it is not feasible or effective to locate the Facility in other districts or on a municipal location.
Wireless [Tele]communications Facilities may be mounted onto a building or support structure that is not primarily constructed for the purpose of holding Wireless [Tele]communications Facilities or as an attachment to an existing Tower, subject to the following standards:
Antenna Setbacks: An Antenna Array attached to any structure that is not a Tower is shall be setback 100 feet from the property line which a residence is located. An Antenna Array attached to the side of such a structure may extend up to five feet horizontally from the side of the structure, provided that the Antenna Array does not encroach upon an adjoining parcel.
Height Extensions: The top of an attached Antenna shall not extend more than fifteen (15) feet above the structure other than a Tower to which it is attached. Notwithstanding this provision, the height of the Antenna shall not extend more than eight (8) feet above the maximum allowed height for such a structure in the zone in which it is located. These height limitations may be waived to accommodate the height of an architecturally appropriate Concealment structure.
Stanchion and Pole Extensions: Additional height may be allowed on power transmission stanchions and utility poles to accommodate the minimum safety separation necessary from electrical lines, as required by the National Electrical Safety Code and the utility provider. For the purposes of classifying an application for the replacement of an existing utility pole, a replacement pole with up to five (5) feet greater height above ground (including attachments) is considered a replacement pole and is subject to [Co-]location requirements of this Zoning Bylaw. Replacement utility poles that will be more than five (5) feet above ground (including attachments) taller than the pole being replaced will be considered new poles.
[Co-]locations on subsidized multi-family structures of twenty units or more are prohibited.
8.18.6 New Towers
Mailed Notice to Neighbors. All New Towers shall require that mailed notice, in addition to meeting the standards of M.G.L. C. 40A, Section 11, be sent to all property owners within 600 feet of the property subject to the application.
8.18.6(a) Height Limitation
- New Towers shall not exceed the minimum height necessary to provide adequate coverage for the Personal Wireless Service Facilities proposed for use on the Tower.
- In working with the applicant to determine approved height, the Zoning Board will consider the following as part of the Special Permit process:
- Balancing test
- The Personal Wireless Service Facility shall be designed to accommodate multiple users to the maximum extent technologically practicable in order to reduce the number of Personal Wireless Service Facilities that will be required to be located in the Town.
- However, at its discretion, the Zoning Board may reduce the capacity for multiple facilities (typically by a decrease in height or width) if the Board finds that it is preferable to consider the need for a second Tower ratherthan approve one taller Facility
- The Zoning Board may allow height greater than the allowable height [8.18.6(a)(1)] if such height does not materially increase the impacts of the proposed Facility.
- Any Special Permit granted for a new facility may be conditioned to allow the [Co-]location of other wireless [Tele]communication providers on commercially reasonable terms.
New Towers shall be subject to the setbacks described below:
- The minimum setback distance to the nearest residential property line shall be 250 feet.
- As part of the Special Permit process, the Zoning Board by supermajority vote may reduce this setback to no less than 1.5 times the Tower height based on the following findings:
- a. This does not materially increase the impact of the proposed Tower on its surroundings in comparison to satisfying the full setback, or
- b. There is no viable location on any parcel in the subject area from which to provide the necessary service that would comply with the full setback, or
- c. This results in a design that is fully compatible with the purpose and intent of the Zoning Bylaws.
- As part of the Special Permit process, the Zoning Board by supermajority vote may reduce this setback to no less than 1.5 times the Tower height based on the following findings:
- In the C-1A, C-3A, and Industrial Zones the minimum setback from parcels in commercial and industrial zones shall equal the height of the New Tower. As part of the Special Permit process, the Zoning Board by supermajority vote, may allow a shorter setback if the shorter setback provides adequate safety and aesthetics.
- The minimum setback from a school building shall be 1,000 feet.
8.18.7 Design Criteria for All Wireless [Tele]communications Facilities
Personal Wireless Facilities shall be constructed and maintained in compliance with applicable safety and environmental codes and regulations, including but not limited to radio frequency energy safety, hazardous materials, noise, building, electrical, and Americans with Disabilities Act.
WCF located within an historic district or within an historic structure eligible to be listed on the state or federal register should preserve the character and appearance of the structure and not alter or obscure character defining features or distinctive characteristics.
A Wireless [Tele]communications Facility shall not significantly impact viewsheds and views from nearby locations and shall be architecturally compatible with respect to such views.
Monopole Tower designs are preferred over lattice and guyed Towers.
Concealment or Camouflage shall be used when appropriate for mitigating visual impacts. The following are examples or options, not to be viewed as recommendations per se:
- A faux carillon tower artfully placed on an institutional parcel;
- A unipole inconspicuously placed near the rear of a lot;
- A mimicked manmade or natural object consistent with a feature of the surrounding landscape;
- Field light stanchions for athletic or recreational facilities or developed park areas;
- Clock tower for commercially developed area;
- Fire watch tower or monopine “tree” (native evergreen) compatible with rural or undeveloped area dominant points of view. For example (and not a recommendation), a faux carillon tower artfully placed on an institutional parcel or a unipole inconspicuously placed near the rear of a lot might provide satisfactory visual mitigation in some situations. Other options that may be proposed for concealment include mimicking a manmade or natural object that is consistent with the surrounding landscape; for example, field light stanchions for athletic and recreational facilities or developed park areas, clock tower for commercially developed areas, fire watch tower or “monopine” evergreen tree native to Berkshire County for rural or undeveloped areas. With respect to monopine designs, they are notorious for being poorly executed and being placed in awkward locations. Care should be taken to consider monopine designs only when they are compatible with the dominant points of view of the tower.
Landscaping and existing vegetation shall be employed to minimize visual impacts.
Antennas, cables, associated equipment, and mounting apparatus should be enclosed, Concealed, screened, or obscured so that they are not readily apparent to a casual off-site observer, except that a Facility may be approved with exposed Antennas and associated equipment if Concealment or Camouflage would not mitigate any visual impacts and no less visually impactful alternative locations or designs are available.
Signage: Commercial messages shall not be displayed on any WCF. Required noncommercial signage shall be restricted to FCC Antenna Structure Registration Number (when required), information about the Facility owner/operator, and any additional security and/or safety signs as applicable.
Lighting: Lighting shall be prohibited on all WCFs unless required by the Federal Aviation Administration (FAA). Applicants shall demonstrate efforts to avoid FAA lighting requirements, such as reduced Tower height or alternative locations. If lighting is required, night lighting shall be red and employ luminaires with the lowest practicable beam spread toward the earth.
Noise: Sound levels contributed by Facility operations including generators shall not exceed 40 dBA at the property lines of the parcel containing the Wireless [Tele]communication Facility, and operations when no generator is running shall not exceed 30 dBA at said property lines. Emergency generators are permitted and are exempt from noise requirements during emergencies. Routine generator tests shall be conducted between 8 AM and 5 PM on business days except holidays.
Equipment Compound and Cabinets: When practicable, equipment cabinets should be installed inside existing structures. If installed outdoors, equipment should not be visible to the public and neighbors or be screened behind an architecturally appropriate enclosure, behind a screen on a rooftop, or on the ground with landscape screening as required. Equipment compounds shall not be used for storage. Equipment compounds shall be subject to the setback requirements of their underlying zone.
Parking: WCFs shall include at least one parking space for personnel accessing the facilities in addition to any parking minimums for other uses on the parcel.
8.18.8 Eligible Facilities Request
The Zoning Board of Appeals is the Administrative Approval Granting Authority and shall grant Administrative Approval of an Eligible Facilities Request. Applicants with Eligible Facilities Requests shall submit application materials and undergo a review process that shall be conducted in a manner consistent with federal limitations. The Zoning Board shall verify that the application for an Eligible Facilities Request is bonafide and may apply conditions that are not otherwise preempted by the FCC.
The design of an Eligible Facilities Request shall maintain the appearance intended by the original Facility and shall comply with any conditions of prior approvals for Wireless Facilities on the site, including, but not limited to, color, screening, landscaping, Camouflage, Concealment techniques, mounting configuration, or architectural treatment.
Administrative Approval: Applicants shall submit application materials to the Lenox Town Clerk. Detailed instructions and application content requirements are available from the Lenox Land Use Department.
8.18.9 Tower Replacement
Existing Towers may be replaced pursuant to this Section 8.18, provided that the replacement accomplishes a minimum of one of the following:
- a. Increases the number of wireless service providers the Tower can support or otherwise materially improves the provision of Wireless Service in Lenox;
- b. Contributes to the reduction of the proliferation of New Towers in Lenox;
- c. Replaces an existing Tower with a Tower with less impact on the town, such as reduced height or improved appearance (by Camouflage or Concealment).
Landscaping: At the time of replacement or upgrade, the Tower equipment compound shall be brought into compliance with any applicable landscaping requirements.
Setbacks: A replacement of an existing Tower shall not be required to meet new setback standards so long as the New Tower and its equipment compound do not increase the existing nonconformity.
a. All Applications shall include
Plans: One (1) set of plans at 24” x 36” and five (5) sets of plans at 11” x 17” and an electronic original (not scanned) of plans that constitute a customary package of “Zoning Drawings,” including, without limitation, locus information, area parcel plans showing abutting lots and a 300 and 600 foot radius, details including property line and other relevant setbacks, proposed easements, utilities, driveways, site improvements, etc.; and detailed site plans to illustrate site development, wetland/river buffers, landscaping, tree cover, etc.; elevation drawings and details about the ground equipment and the Tower-mounted equipment; any other information the applicant or the Town determines is appropriate for showing the proposed development.
Photosimulations: Applicants shall provide photosimulations with their application to demonstrate visual impacts. Photos should have the field of view of a 50-55 mm focal length lens with respect to a standard full-frame 35 mm camera. Photosimulations should be provided showing (a) the impact on viewsheds and neighboring uses as described above and (b) how the design, including Concealment, landscaping, topography, existing cover, etc. contribute to minimizing visual impacts. Photos shall be taken from representative locations where the Tower is or is expected to be visible or partially visible in any season. Before the photos are taken, applicants shall consult with the Land Use Department to identify sensitive locations that should be added to the photographer’s list of locations to photograph. To produce photosimulations for New Towers, applicants shall conduct such field testing (such as a balloon/crane test) at their convenience prior to filing the application and notify the Town of the scheduled date and time of such testing.
Design: Applicant’s zoning drawings shall include details of the Concealment or Camouflage design
Radio Frequency Emissions Analysis: Applicant shall provide an analysis of radio frequency energy emissions for the proposed and potentially collocating WCFs based on the methods outlined in FCC Office of Engineering and Technology Bulletin 65, demonstrating compliance with applicable safety standards.
Noise Analysis: Applicant shall provide a noise analysis of the proposed Facility prepared by a qualified professional, demonstrating compliance with the Commonwealth’s Department of Environmental Protection regulation of noise and with any noise restrictions of the Town of Lenox.
Applicant shall provide a narrative and additional exhibits as necessary to demonstrate fulfillment of and compliance with the criteria outlined in all sections of this bylaw 8.18 including, as per the type of application, Sections:
- 8.18.1 Purpose
- 8.18.2 Application and Permits Required
- 8.18.3 Determination of Need
- 8.18.4 Facility Impacts
- 8.18.5 [Co-]locations
- 8.18.6 New Towers
- 8.18.7 Design Criteria
- 8.18.8 Eligible Facilities Request
- 8.18.9 Tower Replacement
A report and supporting technical data shall be submitted, demonstrating the following:
– a. All potential Antenna attachments, [Co-]locations, and alternative Antenna configurations on existing elevated structures, including all usable utility distribution towers within the proposed service area have been examined, and found unacceptable.
– b. A technical report by a qualified professional, which qualifications shall be included, regarding service gaps, service expansions, and/or system capacity or other evidence of need for the Wireless [Tele]communications Facility (Section 8.18.3 Determination of Need) and accompanying exhibits including coverage and other maps, graphics, charts and calculations to support the claims in the report.
– c. The application shall include a written narrative and exhibits describing how the proposed Facility’s coverage or capacity benefits cannot be substantially achieved by the use of one or more of any higher ranked alternatives (Section 8.18.3 Determination of Need) and alternatives ranking section (Section 8.18.4 Facility Impacts).
– d. No existing Towers or WCFs located within the geographic area meet the applicant’s engineering requirements without increasing the height of the existing Tower or structure or otherwise creating a greater visual impact, and why.
– e. Existing Towers cannot physically accommodate the applicant’s proposed Wireless [Tele]communications Facilities and related equipment, and the existing Facility cannot be sufficiently improved.
– f. Other limiting factors that render existing Wireless [Tele]communications Facilities unsuitable.
- g. Demonstration of satisfaction of FAA hazard to air navigation requirements, including as applicable, a professional technical evaluation indicating FAA requires no notification and no lighting will be required, or an FAA Determination of No Hazard.
- h. Balloon/Crane Test for New Towers
- i. During the hearing and to be considered part of the application, the Zoning Board shall require the applicant to conduct a publicly noticed balloon/crane test. If the proposed site is accessible by crane, a crane test is preferred. The applicant shall arrange to raise a red or orange colored balloon no less than three (3) feet in diameter at the maximum height of the proposed Tower, and within twenty-five (25) horizontal feet of the center of the proposed Tower. A second balloon twenty (20 feet) below the first (or at some other height requested by the Town) shall also be raised.
- ii. A three-foot by five-foot (3’ by 5’) sign or signs with lettering no less than three (3) inches high stating the date, time, and location, including alternative date, time and location, of the balloon test shall be posted at a site or sites determined in consultation with the Zoning Board of Appeals.
- iii. The balloon shall be flown for at least four (4) consecutive hours during daylight hours on the date chosen. The applicant shall record the weather, including wind speed and direction during the balloon test. Photographs taken of the balloon test shall be timed to capture the balloon at its apex during wind-induced motion. The height of the balloon shall be measured, and tether length shall not be relied upon to determine height.
8.18.10(b) Eligible Facilities Requests
Eligible Facilities Requests shall not be required to meet the requirements of 8.18.10(a)(1), 8.18.10(a)(6), and 8.18.10(a)(7).
Eligible Facilities Requests shall be accompanied by evidence demonstrating eligibility under federal law, addressing all points in the federal definition including such information, exhibits and calculations necessary to support the claim and demonstrating compliance with applicable state and local safety codes. Applications for Eligible Facilities Requests are not required to provide documentation intended to illustrate the need for such Wireless Facilities or to justify the business decision to modify such Wireless Facilities.
8.8.11 Employment of Outside Consultants
Pursuant to MGL Ch 44 Sec 53G, the Zoning Board shall engage outside consultants at the expense of the applicant to assist the Zoning Board’s review of an application under this Wireless [Tele]communications Facilities Bylaw.
Special Permits: In addition to the findings required by the Bylaw in Section 3.4, the Board of Appeals shall, in consultation with the Independent Consultant(s), make all of the applicable findings before granting the Special Permit as follows:
8.18.12(A) Special Permit Findings
The Zoning Board of Appeals shall evaluate the application in light of Section 3.4 of the Zoning Bylaw and make findings and apply conditions as appropriate.
The Board also shall make findings that:
- a. The application meets all the Application Criteria (8.18.10) or is granted waivers to specific application requirements, as authorized in this bylaw section.
- b. The applicant has/has not met the burden of Demonstrating the Need for the proposed Wireless [Tele]communication Facility Section (8.18.3).
- c. The application satisfies the Qualitative and Quantitative Criteria for Facility Impacts Section (8.18.4)
- d. The application meets the performance criteria for [Co-]location (8.18.5), New Tower (8.18.6), or Tower Replacement (8.18.9) as applicable.
- e. The application is an acceptable Design and meets Design Criteria (8.18.7).
- f. The application and any waivers granted are consistent with the Purpose (8.18.1) of this Bylaw.
8.18.12(b) Administrative Approval / Eligible Facilities Requests Finding.
Eligible Facilities Requests (8.18.8) shall be granted Administrative Approval consistent with findings based on requirements and application in this bylaw 8.18.
8.18.13 Post Construction RFR Study
Any time after the installation of an approved Wireless [Tele]communication Facility, the Town shall require operators of such facilities to demonstrate compliance with FCC regulations regarding the safety of all relevant radio frequency emissions from the site (47 CFR 1.1310). As appropriate to the situation, such demonstrations of compliance may require either the conduct of a field survey of emissions and/or by production of calculations consistent with FCC OET Bulletin 65, as directed by the Town. The Town may require the operator(s) to reimburse the Town for such analysis independently commissioned by the Town. In the event the results demonstrate that the Wireless [Tele]communication Facility is not in compliance with the applicable rules, the applicant shall immediately bring the facility into compliance, including by cessation of operations if necessary prior to implementing changes.
8.18.14 Abandonment (Discontinued Use)
Towers, Wireless [Tele]communications Facilities, Antennas, and the equipment compound shall be removed, at the owner’s expense, within 180 days of cessation of use.
An owner wishing to extend the time for removal or reactivation shall submit an application stating the reason for such extension. The Town may extend the time for removal or reactivation up to 60 additional days upon a showing of good cause. If the Tower or Antenna is not removed within this time, the Town may give notice that it will contract for removal within 30 days following written notice to the owner either with the owner’s permission or pursuant to a court order. Thereafter, the Town may cause removal of the Tower with costs being borne by the owner.
Upon removal of the Tower, Wireless [Tele]communication Facility, Antenna, and equipment compound, the development area shall be returned to its natural state and topography and vegetation consistent with the natural surroundings or consistent with the current uses of the surrounding or adjacent land at the time of removal. At the Town’s discretion, the foundation may be abandoned in place if reduced to below finished grade.
All applicants shall, upon grant of Administrative Approval or a Special Permit, furnish a performance bond or irrevocable letter of credit naming Town of Lenox as beneficiary in an amount to be determined by the Zoning Board of Appeals (“Performance Bond”) which shall state, inter alia, that it is for the purpose of assuring the removal of the permitted Wireless [Tele]communication Facility in the case of abandonment as contemplated herein.
8.18.15 Exempt Facilities
The following are exempt from the standards for Wireless [Tele]communication Facilities notwithstanding any other provisions:
Satellite earth stations used for the transmission or reception of Wireless [Tele]communications signals with satellites that are one (1) meter (39.37 inches) or less in diameter in all residential zones and two (2) meters or less in all other zones.
A temporary Wireless [Tele]communication Facility, upon the declaration of a state of emergency by federal, state, or local government, and a written determination of public necessity by the Town designee; except that such Facility must comply with all federal and state requirements. No [Tele]communications Facility shall be exempt from the provisions of this Section beyond the duration of the state of emergency.
A government-owned Wireless [Tele]communication Facility erected for the purposes of providing [Tele]communications for public health and safety.
A temporary Wireless [Tele]communication Facility for the purposes of providing coverage of a special event, and subject to federal and state requirements. Said [Tele]communications Facility may be exempt from the provisions of this Section up to one week before and after the duration of the special event.
Amateur radio towers solely used for licensed amateur services up to 70 feet in height, or at such additional height as approved by informal application to the Zoning Board of Appeals.
The following definitions are used exclusively in the Wireless [Tele]communications Bylaw:
- Antenna – a device consisting of exposed elements or of an enclosure containing one or more elements that transmits and/or receives electromagnetic radio frequency signals. Two or more Antennas operated by one carrier/owner at one site constitute an Antenna Array. In context, a single enclosure that contains multiple Antenna elements connected to multiple electrical ports that provide for any of the following is considered an Antenna herein: multiple frequency bands, multiple input/multiple output Arrays, transmit/receive isolation, polarization and space diversity.
- Camouflaged (Facility/Antennas) – the use of materials added to an installation, including when applicable added to existing architecture, to render a Facility or Antennas less noticeable.
- [Co-]location – to install a Wireless [Tele]communications Facility on an existing structure, including but not limited to an existing Tower, building, or other structure (such as water or fire tower, pole, etc.)
Concealed (Facility, Antennas) – a Wireless [Tele]communication Facility or portion thereof that is designed in a manner that it is not visible to the public, typically through the use of radio frequency transparent materials integrated with existing architecture; any Tower that is designed to conceal the Antennas is considered a Concealment
Eligible Facilities Request – an application for a type of modification to an existing approved Wireless [Tele]communications Facility as defined in 47 CFR 1.6100
FCC – the Federal Communications Commission of the United States
Person – an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization
Substantial Change – a type of modification to an existing approved Wireless [Tele]communications Facility as defined in in 47 CFR 1.6100
Tower - A structure constructed on the ground for the sole or primary purpose of supporting Antennas and their associated equipment
Wireless [Tele]communications Facility (WCF) – an installation of equipment and utilities for the provision of Personal Wireless Services to link remote user equipment to a [Tele]communications network
Personal Wireless Services – Personal Wireless Services as defined in the National Wireless Tele[Tele]communications Policy, 47 U.S.C. 332(c): “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.” Note: This covers tele[Tele]communications services offered to the public or a subset thereof using a network of base stations to link remote subscribers to the tele[Tele]communications network.