MA State Code
- Title I — JURISDICTION AND EMBLEMS OF THE COMMONWEALTH, THE GENERAL COURT, STATUTES AND PUBLIC DOCUMENTS
- Title II — EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
- Title III — LAWS RELATING TO STATE OFFICERS]
- Title IV CIVIL SERVICE, RETIREMENTS AND PENSIONS
- Title V MILITIA
- Title VI COUNTIES AND COUNTY OFFICERS
- Title VII CITIES, TOWNS AND DISTRICTS
- Title VIII
ELECTIONS - Title IX TAXATION
- Title X PUBLIC RECORDS
- Title XI CERTAIN RELIGIOUS AND CHARITABLE MATTERS
- Title XII EDUCATION
- Title XIII EMINENT DOMAIN AND BETTERMENTS
- Title XIV PUBLIC WAYS AND WORK
- Title XV REGULATION OF TRADE
- Title XVI PUBLIC HEALTH
- Title XVII PUBLIC WELFARE](https://malegislature.gov/Laws/GeneralLaws/PartI#titleXVII)
- Title XVIII PRISONS, IMPRISONMENT, PAROLES AND PARDONS
- Title XIX AGRICULTURE AND CONSERVATION
- Title XX PUBLIC SAFETY AND GOOD ORDER
- Title XXI LABOR AND INDUSTRIES
- Title XXII CORPORATIONS
Town of Lenox Municipal Code
- 7000 words in current Wireless Telecommunications Facilities (WTFs) Code vs. ~ 5,400 words proposed in 2022 modifications to WTF code
- Other Key Documents to Consider
Zoning Bylaw, 2021
- 120 pgs.; 7,000 words
- Adopted first at Special Town Meeting: April 15, 2008
- This 2021 edition includes amendments through:
- Special Town Meeting March 24, 2009,
- Annual Town Meeting May 6, 2010,
- Special Town Meeting April 14, 2011,
- Annual Town Meeting May 1, 2014,
- Annual Town Meeting May 7, 2015,
- Annual Town Meeting May 5, 2016,
- Annual Town Meeting May 4, 2017,
- Special Town Meeting November 1, 2018,
- Annual Town Meeting May 2, 2019,
- Special Town Meeting November 7, 2019
- Annual Town Meeting June 29, 2021.
Chapter 10.3. Wireless Telecommunications Overlay District (WTOD)
10.3.1. Purpose
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:
- Provide standards and requirements for regulation, placement, construction, monitoring, design, modification and removal of Personal Wireless Service Facilities and Towers;
- Provide a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify Personal Wireless Service Facilities and Towers;
- Preserve property values;
- Locate Towers so that they do not have negative impacts, such as, but not limited to, visual blight, attractive nuisance, noise and falling objects, on the general safety, welfare and quality of life of the community;
- Require owners of Personal Wireless Service Facilities and Towers to configure them so as to minimize and mitigate the adverse visual impact of the Facilities and Towers; and
- Require the clustering, sharing and camouflaging of personal wireless service facilities and Towers.
Wire America: As one can learn here, the authority to locally restrict the operations of personal wireless facilities (PWF) was never preempted from local zoning authority. In addition, when local governments pass such local laws to restrict the operations of Wireless Telecommunications Facilities (WTFs), they are not constrained by the federal preemption over placement, construction and modification decisions — meaning that for operations decisions, local governments are not constrained by U.S. Code Title 47 § 332 (c)(7)(B)(iv):
U.S. Code Title 47 § 332 (c)(7)(B)(iv):
“No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.
Therefore, unless there are specific citations to case law that state otherwise, local governments can make decisions regarding the operations of personal wireless service facilities as they wish and, when they do, local governments are not barred from considering any environmental effects or adverse health effects caused by RF microwave radiation exposures. Furthermore, local governments do not have to consider the FCC’s regulations concerning “radio frequency emissions” in their deliberations of whether or not to grant an operational permit to a Wireless Carrier seeking to operate a WTF within local governments’ respective jurisdictions.
10.3.2. Location
The WTOD includes the properties listed below. These properties are included by reason of their potential to provide technically feasible and accessible locations for the siting of facilities which can provide adequate wireless telecommunications services to the Town of Lenox. The Overlay District is defined, delineated and mapped on the Map entitled “Wireless Telecommunications Overlay District Map, Town of Lenox, MA”, and incorporated by this reference herein.
Address Assessors’ Map | Parcel # |
---|---|
Junction Rtes 7 & 20 | Map 17, Lot 57 |
Route 7 | Map 17, Lots 54, 55 & 56 |
Route 7 | Map 12, Lot 9 |
10.3.3. Overlay District
The WTOD is an overlay district mapped over other districts. It modifies and where there is inconsistency, supersedes the regulations of such other districts. Except as so modified or superseded, the regulations of the underlying districts remain in effect.
10.3.4. Applicability
Any use of lands within the WTOD for purposes of placement, construction, modification or removal of Personal Wireless Service Facilities and/or Towers shall be subject to this Section.
10.3.5. Personal Wireless Service Facilities and Towers
The regulations of this Section are intended to be consistent with The Telecommunications Act of 1996 in that:
- a) they do not prohibit or have the effect of prohibiting the provision of Personal Wireless Services;
- b) they are not intended to be used to unreasonably discriminate among providers of functionally equivalent Services;
- c) they do not regulate Personal Wireless Services on the basis of the environmental effects of radio frequency emissions to the extent that the regulated Services and Facilities comply with the FCC’s regulations concerning such emissions.
Any decision by the Board of Appeals to deny a Special Permit under this Section shall be in conformance with SEC. 332 [47 U.S.C. 332] (7)(B)(ii),(iii) of the Act, in that it shall be in writing and supported by substantial evidence contained in a written record.
10.3.6. Definitions
ACT – The Telecommunications Act of 1996.
ADEQUATE COVERAGE – Coverage is considered to be “adequate” within that area surrounding a Base Station where the predicted or measured median field strength of the transmitted signal for at least 75 percent of the covered area is greater than -95 dbm. It is acceptable for there to be holes within the area of Adequate Coverage where the signal is less than -95 dbm, as long as the signal regains its strength to greater than -95 dbm further away from the Base Station. For the limited purpose of determining whether the use of a Repeater is necessary or desirable there shall be deemed not to be Adequate Coverage within said holes. The outer boundary of the area of Adequate Coverage, however, is that location past which the signal does not regain a strength of greater than -95 dbm.
Wire-America: This “greater than -95 dbm” idea is a one-sided construction that is far too favorable to the wireless industry and unnecessary as one can make wireless outdoor phone calls down to -115 to -125 dBm. the current Town of Lenox WTF code is not consistent with federal law: Title 47 U.S. Code § 324, which one can read below.
The Town of Lenox code, instead needs an acceptable range of power — setting both upper and lower limits. This is why
Title 47 U.S. Code § 324 – Use of Minimum Power:
“In all circumstances . . . all radio stations. . . shall use the minimum amount of power necessary to carry out the communication desired.”
- Every Wireless Telecommunications Facilities (WTFs) is a radio station because an FCC license is required to operate each WTF.
- The communication desired = wireless telecommunications service = Title II regulated covered service = the ability to make an outdoor wireless phone call
- The minimum amount of power to make and outdoor wireless phone call is -115 to -125 dBm.
- The Town of Lenox must revise its wireless code to bring it in line with federal code
The Town of Lenox should consider adequate upper and lower limits for the measured median field strength of the transmitted signal of any single frequency that can provide telecommunications service. Once that has been achieved, all federal preemption falls away., The Town of Lenox should include a basic WTF Report Card, similar to this:
Grade | Signal Strength | Status |
---|---|---|
A — Excellent | -90 dBm to -125 dBm | OK |
B — Good | -80 dBm to -89 dBm | OK |
C — Fair | -70 dBm to -79 dBm | Excessive |
D — Poor | -60 dBm to -69 dBm | Excessive |
F — Failing | Exceeds -60 dBm | Excessive |
ADEQUATE CAPACITY – Capacity is considered to be “adequate” if the Grade of Service is p.05 or better for a worst case day in a preceding month, based on the Erlang B Tables, prior to the date of Application; or as measured using direct traffic measurement of the Personal Wireless Service Facility in question for existing Facilities requesting Major Modification, and where the call blocking is due to frequency contention at the antenna(s).
Wire-America: Such an “adequate capacity” notion is an idea from yesteryear, as the wireless industry now allows multiple users to simultaneously share 4G/LTE connections for wireless telecommunications phone calls. The only true substantial written evidence of inadequate coverage/capacity is 12-months of completed and dropped calls in the target search area — data that is inexpensive for the wireless carrier to provide and can be required by the Town of Lenox as part of their “needs analysis” for any proposed WTF.
ANTENNA – A device which is attached to a Tower, or other structure, for transmitting and receiving electromagnetic waves.
BASE STATION – The primary sending and receiving site in a wireless telecommunications network.
CHANNEL – The segment of the radiation spectrum from an Antenna which carries one signal. An Antenna may radiate on many Channels simultaneously.
COMMUNICATION EQUIPMENT SHELTER – A structure located at a Base Station designed principally to enclose equipment used in connection with Personal Wireless Service transmissions.
DBM – Unit of measure of the power level of an electromagnetic signal expressed in decibels referenced to 1 milliwatt.
EMF – Electromagnetic Field Frequency Radiation
EMR – Electromagnetic Microwave Radiation
Wire-America: The code should correct the previous two definitions.
FACILITY SITE – The location within a Wireless Telecommunications Overlay District leased by one or more Personal Wireless Service Providers and upon which one or more Personal Wireless Service Facility(s) and required landscaping are located.
FACILITY/TOWER SPECIAL PERMIT (F/TSP) – The Special Permit required to be obtained in order to install any Tower or Personal Wireless Service Facility or for any Major Modification Of An Existing Facility within the Wireless Telecommunications Overlay District.
FCC – Federal Communications Commission. The Government agency responsible for regulating telecommunications in the United States, as long as it properly establishes its authority and passes FCC Orders that are consistent with the 1996-TCA.
Wire-America: The definition of FCC is misleading and should be corrected. The other branches of government that also regulate telecommunications in the United States are State and local governments, due to the cooperative federalism structure set up by the 1996-TCA that was upheld by the U.S. Supreme Court in 2005 in Palos Verdes v. Abrams (read more here).
FCC 96-326 – A Report and Order which sets new national standards for emissions of Radio Frequency emissions from FCC-regulated transmitters. This Report And Order is now contained within Title 47 Regulations, Section 1, §1.1307.
Wire-America: This needs an update, as well, due to the Aug 13, 2021 ruling in 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.”
Here are links to 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.
GRADE OF SERVICE – A measure of the percentage of calls which are able to connect to the Base Station, during the busiest hour of the day. Grade of Service is expressed as a number, such as p.05 – which means that 95 percent of callers will connect on their first try. A lower number (p.04) indicates a better Grade of Service.
Wire-America: the preceding definition for ‘GRADE of SERVICE’ is outdated and should be eliminated.
HERTZ – One hertz is the frequency of an electric or magnetic field which reverses polarity once each second, or one cycle per second
MAJOR MODIFICATION OF AN EXISTING FACILITY – Any change, or proposed change in power input or output, number of Antennas, change in Antenna type or model, repositioning of Antenna(s), change in number of Channels per Antenna above the maximum number approved under an existing Special Permit. Also any increase, or proposed increase in dimensions of an existing and permitted Tower or other structure designed to support Personal Wireless Service transmission, receiving and/or relaying antennas and/or equipment.
MAJOR MODIFICATION OF AN EXISTING REPEATER – Any removal of or change in location of any Repeater(s) from the Repeater Site(s) for which a Special Permit has been received.
Wire-America: the preceding definition for ‘MAJOR MODIFICATION OF AN EXISTING REPEATER’ should be eliminated because there is no distinction between any Wireless Telecommunications Facilities (WTFs) of any size or any “G”, due to the Aug 2019 US Courts of Appeals D.C. Cir ruling in Keetoowah et al v FCC that vacated the definition of a “Small Wireless Facility.”
MONITORING – The measurement, by the use of instruments in the field, of the radiation from a Site as a whole of the dBm signal strength of every FCC licensed carrier-specific frequency from individual Personal Wireless Service Facilities, Towers, Antennas or Repeaters.
MONITORING PROTOCOL – The testing protocol, initially the Cobbs Protocol, which is to be used to monitor the emissions from existing and new Personal Wireless Service Facilities and Repeaters upon adoption of this Article. The Board of Appeals may, as the technology changes, require, by written regulation, the use of other testing protocols. A copy of the Monitoring Protocol shall be on file with the Board of Selectmen and the Town Clerk. MONOPOLE – A single self-supporting vertical pole with below grade foundations.
Wire-America: the monitoring should be tied to signal strength as measured in dBm.
PERSONAL WIRELESS SERVICES – Commercial Mobile Services, unlicensed wireless services, and common carrier wireless exchange access services. These services include: cellular services, personal communications services (PCS), Specialized Mobile Radio Services, and Paging Services.
PERSONAL WIRELESS SERVICE FACILITY (or FACILITY) – All equipment (excluding any Repeaters) with which a Personal Wireless Service Provider broadcasts and receives the radio- frequency waves which carry their services and all locations of said equipment or any part thereof. This Facility may be sited on one or more Towers or structure(s) owned and permitted by another owner or entity.
PERSONAL WIRELESS SERVICE PROVIDER – An entity, licensed by the FCC to provide Personal Wireless Services to individuals or institutions.
RADIATION PROPAGATION STUDIES OR RADIAL PLOTS – Computer generated estimates of the radiation emanating from Antennas or Repeaters sited on a specific Tower or structure. The height above mean sea level, power input and output, frequency output, type of antenna, antenna gain, topography of the site and its surroundings are all taken into account to create these simulations. They are the primary tool for determining whether a site will provide Adequate Coverage for the Personal Wireless Service Facility proposed for that Site.
Wire-America: the FCC has since 2020 specifically rejected any computer generated estimates/projections of the radiation emanating from Antennas as innaccurate and now relies only on comprehensive drive tests measuring dBm signal strength of every licensed carrier frequency. The Town of Lenox should do the same.
As one can read here:
“In August 2020, in recognition that propagation maps created and submitted to the FCC by wireless carriers were inaccurate, the FCC directed its staff to perform actual drive tests, wherein the FCC staff performed 24,649 tests, driving nearly ten thousand (10,000) miles through nine (9) states, with an additional 5,916 stationary tests conducted at42locations situated in nine (9) states. At the conclusion of such testing, the FCC Staff determined that the accuracy of the propagation maps submitted to the FCC by the wireless carriers had ranged from as little as 6.2% accuracy to a maximum of 64.3% accuracy.
As a result, the FCC Staff recommended that the FCC no longer accept propagation maps from wireless carriers without supporting drive test data to establish their accuracy. A copy of the FCC Staff’s 66-page report is available from the Federal Communications Commission public website as Mobility Fund Phase II Coverage Maps Investigation Staff Report (GN Docket No. 19-367) and is incorporated herein. The City considers it of critical import that applicants provide truthful, accurate, complete, and sufficiently reliable data to enable the Planning and Zoning Commission to render determinations upon applications for new wireless facilities consistent with both the requirements of this Article and the statutory requirements of the 1996-TCA.”
REPEATER – A small receiver/relay transmitter of not more than 20 watts output designed to provide service to areas which are not able to receive Adequate Coverage directly from a Base Station.
REPEATER SITE – The location within the Town of Lenox leased by one or more Personal Wireless Service Providers and upon which one or more Repeater(s) and required camouflage or screening are located
REPEATER SPECIAL PERMIT (RSP) – The Special Permit required to be obtained in order to install any Repeater, or for Major Modification Of An Existing Repeater within the Town of Lenox.
Wire-America: the preceding definition for ‘MAJOR MODIFICATION OF AN EXISTING REPEATER’ should be eliminated because there is no distinction between any Wireless Telecommunications Facilities (WTFs) of any size or any “G”, due to the Aug 2019 US Courts of Appeals D.C. Cir ruling in Keetoowah et al v FCC that vacated the definition of a “Small Wireless Facility.”
TELEPORT – A multi-user commercial facility utilizing satellite dishes of greater than 2.0 meters in diameter designed to uplink to communications satellites for transmission of data.
TOWER – A lattice structure or framework, or Monopole that is designed to support Personal Wireless Service transmission, receiving and/or relaying antennas and/or equipment.
WIRELESS TELECOMMUNICATIONS OVERLAY DISTRICT (WTOD) – Specific area(s), determined by engineering analysis to contain sites where Adequate Service may be provided to the Town of Lenox, which, at the same time, have the potential of reducing or mitigating negative impacts in accordance with this Bylaw. The Overlay District is defined in Section 10.3 of this Bylaw
10.3.7. Exempted Wireless Telecommunications Uses
The following wireless telecommunications facilities are exempt from this Section: police, fire, ambulance and other emergency dispatch; citizens band radio. Amateur radio towers used in accordance with the terms of any amateur radio service license issued by the FCC, are exempt, provided that (1) the tower is not used or licensed for any commercial purpose; and (2) the tower shall be removed upon loss or termination of said FCC license. No Personal Wireless Service Facility or Repeater shall be considered exempt for any reason whether or not said Facility or Repeater is proposed to share a Tower or other structure with such exempt uses
10.3.8. Provision of Independent Consultants
- Upon submission of a Special Permit application under this Section 10.3, the Applicant shall pay a review fee determined by the Board of Appeals, consisting of reasonable costs to be incurred by the Board of Appeals for the employment of independent consultants.
- Such Consultants shall each be qualified professionals with a record of service to municipalities in one of the following fields: a) telecommunications engineering, b) structural engineering, c) monitoring of electromagnetic fields, and, if determined necessary by the Board of Appeals, d) other relevant fields of experience as determined by the Board of Appeals.
- The Board of Appeals shall select the Independent Consultant(s) after consultation with the Planning Board, the Board of Health, and the Conservation Commission, each of which shall propose a list of qualified candidates.
10.3.9. Prohibition of Teleports
There shall be no Teleport(s) within the Town of Lenox.
10.3.10. Eligible Locations
- Towers and Personal Wireless Service Facilities shall be located only within Wireless Telecommunications Overlay District(s) within the Town of Lenox.
Repeaters may be located within these District(s), but are also allowed in the rest of the Town by Special Permit
Wire-America: there is no reason for special local code for ‘repeaters’ or so-called ‘Small Wireless Facilities’ because there is no distinction between any Wireless Telecommunications Facilities (WTFs) of any size or any “G” by the FCC.
10.3.11. Access
Access shall be provided to the Tower or Facility or Repeater Site by a roadway which respects the natural terrain, does not appear as a scar on the landscape and is approved by the Board of Appeals and the Chiefs of all emergency services in the Town to assure emergency access at all times. Consideration shall be given to design which minimizes erosion, construction on unstable soils and on steep slopes.
10.3.12. Special Permit Required
- No Personal Wireless Service Facility, Tower, or Repeater shall be erected, constructed, or installed or undergo Major Modification without first obtaining a Special Permit from the Board of Appeals in accordance with the requirements set forth herein. One or both of two kinds of Special Permits are required; a) A Facility/Tower Special Permit (henceforth F/TSP) for new Facility/Tower construction (or Major Modification Of An Existing Facility);
b) A Repeater Special Permit (henceforth RSP) for Repeater(s) to be mounted on an existing, or newly permitted, Tower or structure (or Major Modification Of An Existing Repeater). If Applicant is applying for both Permits, they shall be submitted and examined concurrently. - For Personal Wireless Service Facilities or Towers a F/TSP is required. Applicant must submit all information required in Sections 10.3.14 and 10.3.15.
For all Repeaters proposed for installation, an RSP is required. An RSP may be applied for by an Applicant who is currently applying for a F/TSP under this Article, or by an Applicant who has previously received a F/TSP under this Article or by an entity which is providing Personal Wireless Services to the Town of Lenox from a base station outside the Town.
Wire-America: there is no reason for special local code for ‘repeaters’ or so-called ‘Small Wireless Facilities’ because there is no distinction between any Wireless Telecommunications Facilities (WTFs) of any size or any “G” by the FCC.
10.3.13. Adequate Coverage, Adequate Capacity, and Justification of Need for F/TSP
- The Applicant shall provide written documentation of any Facility Site(s) in Lenox, and any sites in abutting towns located within eight miles of any boundary of the Town of Lenox, in which it has a legal or equitable interest, whether by ownership, leasehold or otherwise. For each such Facility Site, it shall demonstrate with written documentation that this Facility Site is not already providing, or does not have the potential by adjusting the Site, to provide Adequate Coverage and/or Adequate Capacity to the Town of Lenox. The documentation shall include, for each Facility Site listed;
- a. the exact Tower location (in Longitude and Latitude, to degrees, minutes, seconds);
- b. ground elevation above mean sea level at the Tower location;
- c. height of Tower or structure;
- d. type, manufacturer and model number of Antennas;
- e. Antenna gain;
- f. height of Antennas on Tower or structure
- g. output frequency;
- h. number of channels;
- i. power input; and
- j. maximum power output per channel.
- Potential adjustments to these existing Facility Sites, including changes in Antenna type, orientation, gain, height, or power output shall be specified. Radial Plots from each of these Facility Sites, as they exist, and with adjustments as above, shall be provided as part of the Application.
- The Applicant shall demonstrate with written documentation that they have examined all existing Facility Sites located in Lenox and in any sites in abutting towns located within eight miles of any boundary of the Town of Lenox, in which Applicant has no legal or equitable interest, whether by ownership, leasehold or otherwise to determine whether those existing Facility Sites can be used to provide Adequate Coverage and/or Adequate Capacity to the Town of Lenox. The documentation shall include, for each existing Facility Site examined:
- a. the exact Tower location (in Longitude and Latitude, to degrees, minutes, seconds);
- b. ground elevation above mean sea level at the Tower location;
- c. height of Tower or structure;
- d. type, manufacturer and model number of proposed Antennas;
- e. proposed Antenna gain;
- f. height of proposed Antennas on Tower or structure;
- g. proposed output frequency;
- h. proposed number of channels;
- i. proposed power input; and
- j. proposed maximum power output per channel.
- Radial Plots from each of these existing Facility Sites, configured as documented above, shall be provided as part of the Application.
- Applicant shall demonstrate with written documentation that they have analyzed the feasibility of Repeaters in conjunction with all existing Facility Sites listed in compliance with Section 10.3.13 (1) & (2) (above) to provide Adequate Coverage and/or Adequate Capacity to the Town of Lenox. Radial Plots of all Repeaters considered for use in conjunction with these Facility Sites shall be provided as part of the Application
10.3.14. Required Documentation for F/TSP
The Applicant shall include reports prepared by one or more professional engineers, which shall demonstrate that the Personal Wireless Service Facility and Tower comply with all applicable standards of the Federal and State governments. Specifically:
- Copies of all submittals and showings pertaining to: FCC licensing; Environmental Impact Statements; FAA Notice of Construction or Alteration; Aeronautical Studies; and, all data, assumptions and calculations relating to service coverage and power levels regardless of whether categorical exemption from Routine Environmental Evaluation under the FCC rules is claimed.
- Copies of all information submitted in compliance with requirements of Massachusetts Department of Public Health, 105 CMR 122 nonionizing Radiation limits for: the general public from non-occupational exposure to electromagnetic fields, employees from occupational exposure to electro-magnetic fields, and exposure to microwave ovens, or any revisions thereof as the Department of Public Health may, by written notice, create.
- The exact legal name, address or principal place of business and phone number of the Applicant. If any Applicant is not a natural person, it shall also give the state under which it was created or organized.
- The name, title, address and phone number of the person to whom correspondence or communicatons in regard to the application are to be sent. Notice, orders and other papers may be served upon the person so named, and such service shall be deemed to be service upon the Applicant.
- Name, address, phone number, and written consent to apply for this permit, of the owner of the property on which the proposed Personal Wireless Service Facility and/or Tower shall be located, or of the owner(s) of the Tower or structure on which the proposed Personal Wireless Service Facility shall be located.
- The documentation shall include, for each Facility Site listed, the exact Tower or Repeater location (in Longitude and Latitude, to degrees, minutes, seconds) and by street address or Pole number (if applicable), ground elevation above mean sea level at the Tower or Repeater location and proposed height of Tower or structure.
- Required Plans and engineering plans, prepared, stamped and signed by a Professional Engineer licensed to practice in Massachusetts. (Note: survey plans shall also be stamped and signed by a Professional Land Surveyor registered in Massachusetts.) Plans shall be on 24″ x 36″ sheets, on as many sheets as necessary, and at scales which are no smaller (i.e. no less precise) than listed below in Section 10.3.15. Each plan sheet shall have a title block indicating the project title, sheet title, sheet number, date, revision dates, scale(s), and original seal and signature of the P.E. and other professionals who prepared the plan.
10.3.15. Required Site Plan for F/TSP
The Applicant shall provide the Board of Appeals with the following Site Plan. The Site Plan shall show Facility Site layout, grading and utilities at a scale no smaller than 1″ = 40′ (1:480 or metric equivalent 1:500) showing the entire vicinity within a 400′ radius of the Tower site with topography drawn with a minimum of 2′ (0.6 meter) contour interval. The Site Plan must have been completed, on the ground, by a Professional Land Surveyor within two years prior to the application date. The Site Plan shall show:
- Existing utilities, property lines, existing buildings or structures, stone walls or fence lines, wooded areas, individual trees with diameters greater than 12″ within a 200′ radius from the base of the proposed Tower (labeled with their current heights).
- The boundary of any wetlands or floodplains or watercourses, and of any bodies of water within 200′ from the Tower or any related facilities or access ways or appurtenances.
- Proposed Tower location and any appurtenances, if any, and any accessory building (Communication Equipment Shelter or other). Indicate property boundaries of the Overlay District and setback distances to the base(s) of the Tower and to the nearest corners of each of the appurtenant structures to those boundaries, and dimensions of all proposed improvements.
- Indicate proposed spot elevations at the base of the proposed Tower and at the base of any guy wires, and the corners of all appurtenant structures.
- Proposed utilities, including distance from source of power, sizes of service available and required, locations of any proposed utility or communication lines, and whether underground or above ground.
- Limits of areas where vegetation is to be cleared or altered, and justification for any such clearing or alteration.
- Any direct or indirect wetlands alteration proposed.
- Detailed plans for drainage of surface and/or sub-surface water; plans to control erosion and sedimentation both during construction and as a permanent measure.
- Plans indicating locations and specifics of proposed screening, landscaping, ground cover, fencing, etc; any exterior lighting or signs.
- Plans of proposed access driveway or roadway and parking area at the Facility Site. Include grading, drainage, traveled width. Include a cross section of the access drive indicating the width, depth of gravel, paving or surface materials.
10.3.16. Other Required Plans for F/TSP
- The Applicant shall provide the Board of Appeals with the following Plans. The Plans, elevations, sections and details shall be at appropriate scales but no smaller than 1″ = 10′.
- a. Two cross sections through proposed Tower drawn at right angles to each other, and showing the ground profile to at least 100 feet beyond the limit of clearing. Indicate proposed spot elevations at the base of the proposed Tower. Dimension the proposed height of tower above average grade at Tower Base. Indicate the maximum allowable structural height of the Tower after addition of any modular sections. Show all proposed antennas, including their location on the Tower.
- b. Details of typical Tower foundation, including cross sections and details. Show all ground attachments, specifications for anchor bolts and other anchoring hardware
- c. Detail proposed exterior finish and camouflage of the Tower. Indicate relative height of the Tower to the tops of surrounding trees as they presently exist.
- d. Illustration of the modular structure of the proposed Tower indicating the heights of sections which could be removed or added in the future to adapt to changing communications conditions or demands.
- e. Structural Professional Engineer’s written description of the proposed Tower structure and its capacity to support additional Antennas or other communications facilities at different heights and the ability of the Tower to be shortened if future communications facilities no longer require the original height.
- f. A description of Available Space on the tower, providing illustrations and examples of the type and number of Personal Wireless Service Facilities which could be mounted on the structure.
- g. Proposed Communications Equipment Shelter with Floor Plans, elevations and cross sections at a scale of no smaller than 1/4″ = 1′ (1:48) of any proposed appurtenant structure, including representative elevation views, indicating the roof, facades, doors and other exterior appearance and materials.
- h. Proposed Equipment Plan with such plans, elevations, sections and details at appropriate scales but no smaller than 1″ = 10′ indicating:
- i. Number of Antennas and Repeaters (if any), as well as the exact locations of all Repeaters (if any) located on a map as well as by Degrees, minutes and seconds of Latitude and Longitude.
- j. Mounting locations on Tower or structure, including height above ground.
- k. Antenna type(s), manufacturer(s), model number(s).
- l. For each Antenna, the Antenna gain and Antenna radiation pattern.
- m. Number of channels per Antenna, projected and maximum.
- n. Power input to the Antenna(s).
- o. Power output, in normal use and at maximum output for each Antenna and all Antennas as an aggregate.
- p. Output frequency of the Transmitter(s).
- Balloon Test. Within 35 days of submitting an Application, Applicant shall arrange to fly, or raise upon a temporary mast, a three foot diameter brightly colored balloon at the maximum height and at the location of the proposed Tower. The dates, (including a second date, in case of poor visibility on the initial date), times and location of this balloon test shall be advertised, by the Applicant, at 7 and 14 days in advance of the first test date in a newspaper with a general circulation in the Town of Lenox. The Applicant shall inform the Board of Appeals and the Planning Board, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours sometime between 9:00 am and 5:00 pm of the dates chosen.
10.3.17. Application Requirements for RSP
The use of Repeaters to assure Adequate Coverage, or to fill holes within areas of otherwise Adequate Coverage, while minimizing the number of required Towers is permitted and encouraged. An Applicant who has received, and is in compliance with a current F/TSP under this Article, or an entity which is providing Personal Wireless Services to the Town of Lenox from a base station outside the Town, may apply for a RSP. Applicants shall provide the following information:
- the exact location (in Longitude and Latitude, to degrees, minutes, seconds), as well as by street address or Pole number (if applicable)
- ground elevation,
- type, manufacturer and model number of proposed Repeater,
- height of proposed Repeater above ground,
- proposed output frequency,
- proposed number of channels,
- proposed power input and
- proposed maximum power output per channel
- Radial Plots from any proposed Repeater(s), configured as documented above, shall be provided as part of the Application.
- Name, address, phone number, and written consent to apply for this permit, of the owner of the property on which the proposed Repeater shall be located, and of the owner(s) of the Tower or structure on which the proposed Repeater shall be located.
- Proposed Repeater Site layout, grading and utilities at a scale no smaller than 1″ = 40′ (1:480 or metric equivalent 1:500) showing the entire vicinity within a 300′ radius of the Repeater site with topography drawn with a minimum of 2′ (0.6 meter) contour interval.
- Proposed Repeater location and any appurtenances, if any, and any accessory building (Communication Equipment Shelter or other). Indicate property boundaries of abutters within 300’ of the Repeater, and dimensions of all proposed improvements.
- Limits of areas where vegetation is to be cleared or altered, and justification for any such clearing or alteration.
- Plans of any proposed access driveway or roadway and parking area at the Repeater site. Include grading, drainage, traveled width. Include a cross section of the access drive indicating the width, depth of gravel, paving or surface materials.
10.3.18. General Requirements for F/TSP
- A Special Permit shall not be granted for a Tower to be built on speculation. If Applicant is not simultaneously installing a Personal Wireless Service Facility on the Tower, it shall provide a copy of its existing lease/contract with a Personal Wireless Service Provider. Said Provider shall provide all necessary data to comply with the terms of this Article, as a part of Applicant’s application for a F/TSP or the Special Permit shall not be granted.
- Applicant shall provide a written, irrevocable commitment valid for the duration of the existence of the Tower, to rent or lease Available Space for co-location on the Tower at fair-market prices and terms, without discrimination to other Personal Wireless Service Providers
- Tower(s) shall minimize, to the extent feasible, adverse visual impacts on the environment. The Board of Appeals may impose reasonable conditions to ensure this result, including, but not limited to, requiring the use of camouflage, painting, lighting standards and screening.
- There shall be no clearing at a distance in excess of 25 feet in radius from the base of the Tower except where the access drive is located.
- Fencing: The area around the Tower and Communication Equipment Shelter(s) shall be completely fenced for security within an area no greater than 25 feet in radius from the base of the tower, and to a height of six feet, and gated. Use of razor wire is not permitted.
- Signs: There shall be no signs, except the following. A sign no greater than two (2) square feet indicating the name of the Personal Wireless Service Facility’s owner(s) and a 24 hour emergency telephone number shall be posted adjacent to the entry gate. In addition, No Trespassing or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of this bylaw.
- Communication Equipment Shelters and Accessory Buildings shall be designed to be architecturally similar and compatible with each other, and shall be no more than 12 feet high. The buildings shall be used only for the housing of equipment related to this particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building.
- New Towers shall be the lesser of (a)105 feet (measured from ground level to the highest point on the Tower), or (b) the minimum height determined by the independent consultant(s) to provide the applicant Adequate Coverage from the Personal Wireless Service Facility(s) proposed for use on the Tower.
- Towers shall be located at least one and one half times their maximum structural height within the outer boundary of any Wireless Telecommunications Overlay District(s).
- Tower Finish: The Board of Appeals shall have the right to determine the type of construction of the Tower(s) (either monopole or lattice), as well as the type(s) of camouflage, painting, or finish. The Board of Appeals may require Tower(s) to resemble or mimic a native coniferous species of tree to minimize their adverse visual impact.
- Tower(s) must be placed to minimize visual impacts.
- All network interconnections to and from the telecommunications site and all power to the site shall be installed underground. At the initial construction of the access road to the site, sufficient conduit shall be laid to accommodate the maximum possible number of Personal Wireless Service Providers licensed to provide services to the Town of Lenox and surrounding areas.
- If primary coverage (greater than 50 percent) from proposed Personal Wireless Service Facility is outside Lenox, then the permit may be denied unless the Applicant demonstrates to the satisfaction of the Board of Appeals that the Applicant is unable to locate within the Town which is primarily receiving service from the proposed Facility.
- Unless required by the Federal Aviation Administration, no night lighting of Towers, or the Personal Wireless Service Facility, is permitted, except for manually operated emergency lights for use only when operating personnel are on site.
- No Tower or Personal Wireless Service Facility that would be classified as a hazard to air navigation, as defined by the Federal Aviation regulations (Title 14 CFR) is permitted.
- No Tower or Personal Wireless Service Facility with the exception of Repeaters shall be located within any of the following prohibited areas:
- a. Massachusetts or federally regulated wetland;
- b. Massachusetts Certified Vernal Pool;
- c. The habitat of any State-listed Rare or Endangered Wildlife or Rare Plant Species;
- d. Within 100′ horizontally from any Massachusetts regulated wetland;
- e. Within 200′ horizontally of the Outer Riparian Zone of any river or perennial stream;
- f. Within 500′ horizontally from any Historic District or property listed or eligible to
be listed on the state or federal Register of Historic Places; - g. Within 500′ horizontally from any known archaeological site.
- h. No Repeater shall be located closer than 50′ to an existing dwelling unit, nor less than 25′ above ground.
- The Board of Appeals may require the use of screening, painting or camouflage to reduce the visual impacts of Repeaters.
- Repeaters shall be located so as to have the least possible impact on the views of the residents of the Town of Lenox.
10.3.19. Decision
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:
- That Applicant is proposing to locate its Personal Wireless Service Facility or Tower (other than Repeaters) within a Wireless Telecommunications Overlay District;
- That Applicant is not able to use Existing Towers/Facility Sites in or around the Town of Lenox, either with or without the use of Repeaters, to provide Adequate Coverage and/or Adequate Capacity to the Town of Lenox;
- That proposed Personal Wireless Service Facility/Tower or Repeater will not have an undue adverse impact on historic resources, scenic views, residential property values, natural or man-made resources;
- That the Applicant has agreed to implement all reasonable measures to mitigate the potential adverse impacts of the Towers and Facilities; and
- That the proposal shall comply with FCC 96-326 and any and all other applicable FCC regulations, regarding emissions of electromagnetic radiation and that the required Monitoring program is in place and shall be paid for by the Applicant.
10.3.20. Monitoring and Evaluation of Compliance
It shall be a condition of any Special Permit granted under this bylaw that:
- Pre-testing: After the granting of a Special Permit and before Applicant’s Personal Wireless Service Facilities begin transmission, the applicant shall pay for an Independent Consultant, hired by the Town, to Monitor the background levels of EMF radiation, around the proposed Facility Site and/or any Repeater locations to be utilized for Applicant’s Personal Wireless Service Facilities. The Independent Consultant shall use the Monitoring Protocol. A report of the Monitoring results shall be prepared by the Independent Consultant and submitted to the Board of Selectmen, the Planning Board, the Board of Health, the Building Commissioner and the Town Clerk, in order to determine the Tower and Facility’s or Repeater’s radio frequency emissions and their compliance with FCC regulations.
- Initial Test: The Applicant shall, after the granting of a Special Permit and within 30 days of the date that Applicant’s Personal Wireless Service Facility(s) or Repeater(s) begin(s) transmission, pay for an Independent Consultant, hired by the Town, to Monitor the levels of EMF radiation, around the proposed Facility and/or Repeater Site(s). The Independent Consultant shall use the Monitoring Protocol. A report of the Monitoring results shall be prepared by the Independent Consultant and submitted to the Board of Selectmen, the Planning Board, the Board of Health, the Building Commissioner and the Town Clerk.
- Ongoing Monitoring: It shall be a condition of any Special Permit granted under this bylaw that, in order to determine ongoing compliance with FCC regulations, after transmission begins, the owner(s) of any Personal Wireless Service Facility(s) or Repeater(s) located on any Facility or Repeater Site shall pay for an Independent Consultant, hired by the Town, to conduct testing and Monitoring of EMF radiation emitted from said Site, and to report results of said Monitoring, as follows:
- There shall be routine annual Monitoring of emissions by the Independent Consultant using actual field measurement of radiation, utilizing the Monitoring Protocol. This Monitoring shall measure levels of EMF radiation from the Facility Site’s primary Antennas as well as from Repeater Site(s) (if any). A report of the Monitoring results shall be prepared by the Independent Consultant and submitted to the Board of Selectmen, the Planning Board, the Board of Health, the Building Commissioner and the Town Clerk.
- Any Major Modification of Existing Facility, or the activation of any additional
permitted channels, shall be cause for new Monitoring in accordance with this Section
10.3.20 paragraphs 2 and 3 above. - Excessive Emissions: Should the Monitoring of a Facility or Repeater Site reveal that the Site exceeds the FCC 96-326 standard, or any other applicable FCC standard, then the owner(s) of all Facilities utilizing that Site shall be so notified. The owner(s)shall submit to the Board of Appeals and the Building Commissioner a plan for the reduction of emissions to a level that complies with the FCC 96-326 standard and any and all other applicable FCC regulations within 10 business days of notification of non- compliance. That plan shall reduce emissions to the applicable FCC standard within 15 days of initial notification of non-compliance. Failure to accomplish this reduction of emission within 15 business days of initial notification of non-compliance shall be a violation of the Special Permit and subject to penalties and fines as specified in this Bylaw. Such fines shall be payable by the owner(s) of the Personal Wireless Service Facilities with Antennas on the Facility Site, until compliance is achieved.
- Structural Inspection: It shall be a condition of the Special Permit that, Tower owner(s) shall pay for an Independent Consultant (a licensed professional structural engineer), hired by the Town, to conduct inspections of the Tower’s structural integrity and safety. Towers shall be inspected every five years. A report of the inspection results shall be prepared by the Independent Consultant and submitted to the Board of Selectmen, the Planning Board, the Board of Health, the Building Commissioner, and the Town Clerk. Any Major Modification of Existing Facility which includes changes to Tower dimensions or antenna numbers or type shall require new structural inspection.
- Unsafe Structure: Should the inspection of any Tower reveal any structural defect(s) which, in the opinion of the Independent Consultant render(s) that Tower unsafe, the following actions must be taken. Within 10 business days of notification of unsafe structure, the owner(s) of the Tower shall submit a plan to remediate the structural defect(s). This plan shall be initiated within 10 days of the submission of the remediation plan, and completed as soon as reasonably possible. Failure to accomplish this remediation of structural defect(s) within 10 business days of initial notification shall be a violation of the Special Permit and subject to penalties and fines as specified in Section 3.2 of this Bylaw. Such fines shall be payable by the owner(s) of the Tower, until compliance is achieved.
10.3.21. Removal Requirements
Any Personal Wireless Service Facility or Repeater which ceases to operate for a period of one year shall be removed. Cease to operate is defined as not performing the normal functions associated with the Personal Wireless Service Facility or Repeater and its equipment on a continuous and ongoing basis for a period of one year. At the time of removal, the Facility or Repeater Site shall be remediated such that all Personal Wireless Service Facility or Repeater improvements which have ceased to operate are removed. If all Facilities on a Tower have ceased to operate, the Tower shall also be removed, and the Facility or Repeater Site, including any access road(s) which lead to that Facility or Repeater Site from the main access road, shall be revegetated. If all Facility or Repeater Sites have ceased to operate, the owner of the last Personal Wireless Service Facility or Repeater to leave the site shall revegetate the access road in its entirety. Existing trees shall only be removed with the written permission of the Board of Appeals, and only if the Board of Appeals determines such removal of trees to be necessary to complete the required removal of Personal Wireless Service Facility(s) or Repeater(s).
10.3.22. Performance Guarantee
The Applicant shall, as a condition of the Special Permit:
- Post an initial cash bond in a reasonable amount determined and approved by the Board of Appeals. This bond shall be in force to cover the costs of the remediation of any damage to the landscape which occurs during the clearing of the Site; and to cover the cost of the removal of the Tower or Facility or Repeater from the Site, and remediation of the landscape, should the Facility or Repeater cease to operate.
- Post a maintenance bond for the access road(s), site(s) and tower(s) in amounts approved by the Board of Appeals
10.3.23. Fees and Insurance
- Towers, Personal Wireless Service Facilities and Repeaters shall be insured by the owner(s) against damage to persons or property. The owner(s) shall provide a Certificate of Insurance to the Selectmen’s Office on an annual basis. The Town of Lenox shall be an additional named insured.
- A schedule of fees for Personal Wireless Service Facility, Tower and Repeater permitting and renewal, any Monitoring of emissions and inspection of structures, and any other fees shall be established by the Board of Appeals pursuant to G.L. c. 40A, § 9. This schedule may be amended from time to time.
10.3.24. Expiration and Renewal
All Special Permits granted under this section shall be granted for five years with the Board of Appeals retaining the option, at their discretion, to renew said Special Permit for additional five year period(s), if the Board of Appeals determines that the Tower and/or Facility and/or Repeater so permitted shall have been and shall remain in compliance with all terms and conditions of this bylaw and of any conditions placed upon the original Special Permit at the time of granting.