07/22/2021

A judge in the Massachusetts Land Court has ruled that the Zoning Board of
Appeals in the City of Framingham "erred" in revoking a building permit for an
80-foot ham radio tower as an accessory use. The Building Commissioner in
Framingham had granted ARRL member Mikhail "Misha" Filippov, KD1MF, a building
permit for the tower, and Filippov had begun pouring concrete for the tower
footings. Neighbors complained, however, and the Zoning Board of Appeals
revoked the permit, citing the setback requirements of the city's wireless
communications facilities (WCF) special permit bylaw. Land Court Judge Howard
Speicher reversed the Zoning Board of Appeals' decision and ordered the town
building commissioner to reinstate the permit.

"The City of Framingham has provided, for the benefit of amateur radio
operators, exemptions from its zoning requirements from the construction of
radio antenna towers for amateur radio operators," the court noted. This case
was not settled on the basis of PRB-1[1] considerations, but strictly on which
setback requirements should apply. PRB-1 requires local governments to
reasonably accommodate amateur radio installations.

The Zoning Board of Appeals had argued that Filippov's project plans failed to
meet setback zoning requirements, but the Land Court determined that the board
could not enforce this, because of an exception that exempts structures,
including amateur radio towers, from these requirements as long as a building
permit is issued.

The court ruled the Zoning Board of Appeals "erred in overturning the decision
of the Building Commissioner to issue a building permit for the erection of the
proposed radio antenna tower."

The WCF bylaw's definition of a tower is very broad, and the ham's tower
appeared to fit within that definition, causing the Zoning Board of Appeals to
require the WCF setback of structure height plus 20 feet. The next sentence in
the same WCF paragraph, however, requires that "any such facility shall be a
minimum of 300 feet from a residential zoning district or residential use."

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

"By its decision, the Board has taken the position that it may pick and choose
which of those requirements will remain applicable to uses that are, by the
explicit terms of the bylaw, exempt from the special permit requirement," the
Land Court ruled. "No reasonable reading of the bylaw permits this unfettered
exercise of discretion." 

[1] http://www.arrl.org/prb-1-document

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