Wireless Communication Facilities

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BYLAW: Wireless Communication Facilities

MUNICIPALITY: Lexington, MA

DATE ADOPTED: 1998

PURPOSE OF BYLAW:

• Adopt zoning provisions to regulate wireless communication facilities. The Zoning By-Law MUST be updated to deal with a new technological phenomenon and a regulatory environment that mandates local zoning regulations.
• To comply with the Federal Telecommunications Act of 1996 that requires municipalities not prohibit wireless communication facilities.
• To provide standards with respect to wireless communication facilities that protect the visual and historical character of Lexington.

FOR MORE INFORMATION ON THIS BYLAW:

Contact Lexington Planning Department, Planning Director,
Phone: (781)862-0500 x 245 Fax: (781)861-2748

TEXT OF THE BYLAW

PLANNING BOARD REPORTS TO THE 1998 ANNUAL TOWN MEETING

ARTICLE 32 ZONING BY-LAW, WIRELESS COMMUNICATION FACILITIES

The text of the proposed amendment appears at the end of the Report

RECOMMENDATION

The Planning Board recommends that the proposed amendment be approved.

OBJECTIVES

1. Adopt zoning provisions to regulate wireless communication facilities. The Zoning By-Law MUST be updated to deal with a new technological phenomenon and a regulatory environment that mandates local zoning regulations.

2. To comply with the Federal Telecommunications Act of 1996 that requires municipalities not prohibit wireless communication facilities.

3. To provide standards with respect to wireless communication facilities that protect the visual and historical character of Lexington.

BACKGROUND

What Are Wireless Communication Services and Facilities?

The term Wireless Communication Services refers to a family of communication devices that can send and receive messages, such as commercial mobile radio services, unlicensed wireless services, and common carrier wireless exchange access services. Typical consumer equipment is cellular telephones and pagers.

The term Wireless Communication Facility refers to all equipment, buildings, and structures with which a wireless communication service carrier broadcasts and receives the radio-frequency waves which carry their services and all locations of said equipment.

As used in this report the term "antenna" is a device usually not more than three feet long, and 8-10 inches wide and 8-10 inches deep. The antenna, which is relatively small can be concealed or camouflaged. In this context a "tower" is what some may think of as an antenna but is a freestanding structure on which one or more antennas are mounted. An antenna, as described here, does not need to be mounted on an antenna but may be located within, or attached to a building or other type of structure.

Why This Amendment Is Proposed

The Federal Telecommunications Act of 1996 went into effect in January 1997. The Act establishes guidelines for the exercise of jurisdiction by state and local zoning authorities over the construction, modification and placement of Wireless Communication Facilities.

The Act preserves local zoning authority, but clarifies when the exercise of local zoning authority may be preempted by the FCC. Section 704 prohibits any action that would discriminate between different providers of personal wireless services. More importantly, it also prohibits any action that would ban altogether the construction, modification or placement of these kinds of Facilities in a particular area. The act also specifies procedures which must be followed for acting on a request to place these kinds of Facilities, and provides for review in the courts or the FCC of any decision by a zoning authority that is inconsistent with the Act.

The Current By-Law

The term, Wireless Communication Facilities, does not appear in the current Zoning By-Law. The closest use category is line 14.13 of the Table of Use Regulations "Transmitting or receiving tower or antenna for commercial activities". That use category is permitted in Lexington "by right" (upon issuance of a building permit without requiring a special permit) as a principal use

ß in the CM, Manufacturing, Zoning District;

ß in other commercial districts as an accessory to a permitted principal use, and

ß as an accessory to a use that is exempt (i.e., churches, schools, and institutions) from local regulations as defined by Massachusetts General Law chapter 40A, §3.

The By-Law limits the height of these structures to a maximum of 45' in the case of a free standing structure, and, if attached to an existing structure, to not more than 20' above the upper elevation.

Abutters to property on Allen Street have filed an appeal of a decision of the Building Commissioner to grant a permit to locate two Wireless Communication Facility antennas on property in the RO, One-family district. That appeal is now pending before the Board of Appeals.

The Planning Board believes that the current By-Law does not adequately address the circumstances under which Wireless Communication Facilities are permitted, nor does it adequately address the dimensional standards that apply to them. In the Board's opinion that leaves Lexington vulnerable because of the requirements under the Telecommunications Act of 1996.

The DTE decision

On January 9, 1998, the State Department of Telecommunications and Energy, "DTE", formerly the Department of Public Utilities (DPU) ruled in favor of telecommunication companies, and against cities and towns, by allowing wireless telecommunication companies to be defined as public service corporations within the meaning of The Zoning Act. This decision allows wireless telecommunication companies to apply to the DTE for exemption from city and town zoning by-laws and ordinances to site a telecommunications facility. The decision gives the wireless telecommunication companies three avenues to appeal local decisions: the Federal Courts, the Massachusetts Superior Court and now the DTE.

The impact to cities and towns is the loss of negotiating leverage when approached by the telecommunications companies. These companies will be able to apply to the DTE to override a local zoning board's decision or if they are not satisfied with the progress of the negotiations. It has been incorrectly reported that the DTE's decision gave telecommunication companies an immunity from municipal regulations. DTE's decision provides another avenue of appeal which may overturn an unreasonable local regulation.

That decision has been appealed to the courts by the defendant towns and public interest groups such as the Massachusetts Municipal Association and the Massachusetts Federation of Planning and Appeals Boards. Legislative action has been initiated in the State Senate that will have the effect of overturning the DTE ruling.

Regardless of the outcome at the State level, it is important to have a good set of zoning regulations locally. As one municipal official in another town with a great deal of experience with the telecommunications industry advised, "These guys want permits, not appeals!" The industry at this time is so competitive that they need to get equipment installed, not be delayed by court battles.

Facilities Currently Located in Lexington

As of this date there are eleven (11) locations where there are Wireless Communication Facilities in Lexington, as follows:

Commercial Districts 6

Town Property 1

Institutional Uses 2

Residential Districts 2

That is not an accurate count of the number of Wireless Communication Facilities, as defined in the proposed amendment, because most of those locations have more than one antenna. The data available does not permit a quick count of the number of antennas at the locations.

Experience In Other Towns

In drafting this amendment, the Planning Board has had the benefit of other wireless communication zoning provisions adopted in other towns. There was a flurry of activity on this subject in numerous towns at 1997 Town Meetings. Some regional planning agencies, such as the Cape Cod Commission have prepared model By-Laws.

Some towns have sought to have wireless communication facilities located on town property because of the annual rental revenue they produce. Arlington, Halifax and Walpole are examples of towns that have taken this approach. Arlington, which has little open land for development, has been particularly aggressive in locating wireless communication facilities located on its property. Arlington reports annual revenue of about $20,000 - $30,000 per antenna.

The priority ranking for locations, (see subsection 15.3.1 of the proposed amendment), places Town owned land high on the priority list so that Lexington can also take advantage of the revenue these facilities can produce.

THE PROPOSED AMENDMENT

A major objective of the proposed amendment is to minimize the visual intrusion of towers, equipment and antennas on the character of Lexington. How that objective will be achieved is best understood by several key concepts ­ concealed, camouflaged and co-location. Those terms are defined in the amendment as:

CAMOUFLAGED: a Wireless Communication Facility that is placed within an existing or proposed structure disguised or hidden by a compatible part of an existing or proposed structure, or made to resemble an architectural feature of the building or structure on which it is placed.

CONCEALED: a Wireless Communication Facility within a building or other structure, which is not visible from outside the structure.

CO-LOCATION: The use of a single mount by more than one carrier and/or several mounts on a building or structure by more than one carrier

Locations Where Wireless Communication Facilities Will Be Permitted:

The proposed amendment contains a list of possible types of locations for Wireless Communication Facilities. The Planning Board believes that Wireless Communication Facilities should be located according to the following priority:

1) concealed within an existing structure,

2) camouflaged and within an existing structure,

3) camouflaged on an existing structure, such as but not limited to an existing electric transmission tower or an existing radio antenna, a water tower, or building, and of a compatible design,

4) co-located with an existing Wireless Communication Facility,

5) on Town of Lexington owned land which complies with other requirements of this section and where visual impact can be minimized and mitigated,

6) if demonstrated to the Special Permit Granting Authority that each of the five types of locations is not feasible, erection of a new Facility which complies with the other requirements of this section and where visual impact can be minimized and mitigated.

A new monopole antenna is a last resort and would only be allowed in the CM Manufacturing district along Hartwell Avenue.

The proposed amendment also requires that applicants for a permit to locate a Wireless Communication Facility in Lexington demonstrate that they have investigated locations higher in priority ranking than the one for which they are applying and whether sites are available and, if applicable, under what conditions.

Where and How Wireless Communication Facilities will be Permitted

Wireless Communication Facilities will permitted "by right" (requiring only a building permit) only when the proposed Wireless Communication Facility:

is in a commercial district, and

is to be concealed in a structure, and

all of the other requirements of the proposed amendment are met.

The Planning Board believes that at least one type of Wireless Communication Facility should be permitted "by-right". It is good zoning practice to provide some uses "by right" and others by special permit. The courts frown on zoning requirements where everything is by special permit. The Board believes, this differentiation will provide an incentive for the wireless industry to pursue these types of installations rather than the others that require a Special Permit, as described below.

Wireless Communication Facilities are permitted in other situations provided the Special Permit Granting Authority grants a Special Permit for the use:

ß In a multi-family dwelling, provided that it is concealed;

ß On a lot in a residential district where the principal use is an existing Institutional, Agricultural, Natural Resource, or Commercial Use, provided it is concealed or camouflaged, and if co-located with an existing electrical power line, transmitting or receiving tower, antenna or water tower, provided that it is camouflaged and does not exceed the height of the existing tower;

ß On Town owned land in a residential district if it is camouflaged and does not exceed the height limits in section 7.5.2, or if the lot is in the CM (Manufacturing district) if it does not exceed the height limits in section 7.5.2 by more than 25 feet;

ß On a lot in a commercial district provided it is camouflaged and does not exceed the height limits in 7.5.2.

PRIORITIES FOR LOCATING WIRELESS COMMUNICATION FACILITIES

1. concealed within an existing structure,

2. camouflaged and within an existing structure,

3. camouflaged on an existing structure, such as but not limited to an existing electric transmission tower or an existing radio antenna, a water tower, or building, and of a compatible design,

4. co-located with an existing Wireless Communication Facility,

5. on Town of Lexington owned land which complies with other requirements of this section and where visual impact can be minimized and mitigated,

6. if demonstrated to the Special Permit Granting Authority that each of the five types of locations is not feasible, erection of a new Facility which complies with the other requirements of this section and where visual impact can be minimized and mitigated.

Where Wireless Communication Facilities will be Allowed

If Wireless Communication Facility is: Type of permit Zoning District Conditions

ON A SINGLE FAMILY HOUSE LOT Not Permitted None Not Allowed

CONCEALED

[Within a building or structure, and not visible from outside the structure.]

By Right Commercial Districts All requirements for wireless communications facility building permit are met.

SP Any In a multi-family dwelling or group care facility, and that all residents of such dwelling or facility receive 30 days notice before the application for a special permit is submitted.

SP Any On a lot where an institutional, agricultural, natural resource use, or commercial use in a residential district, is the principal use.

If Wireless Communication Facility is: Type of permit Zoning District Conditions

CAMOUFLAGED

[Within an existing or proposed structure, disguised or hidden by a compatible part of the structure, or made to resemble an architectural feature of the structure.] SP Commercial Districts Does not exceed height limits in ZBL Section 7.5.2. Max = 15' in CN; 25' in CRS, CS, & CB; 30' in CLO; 45' in CRO & CM.

SP Residential Districts On municipally owned land, and does not exceed height limits in ZBL Section 7.5.2. Max = 40'

SP Residential Districts On a municipally owned water tower, and does not exceed the height of the tower by more than 5 feet.

CO-LOCATED AND CAMOUFLAGED

[With one or more existing WCF, tower, building or structure, whose height, location, and characteristics meet the needs of the proposed WCF.] SP Residential Districts On a lot where an institutional, agricultural, natural resource use, or commercial use in a residential district, is the principal use, with an existing: electrical power transmission line, transmitting or receiving tower, or a water tower; and does not exceed the height of the tower as of January 1, 1998.

ON MUNICIPALLY OWNED LAND SP Commercial Districts Does not exceed height limits in Section 7.5.2 of the ZBL (Max = 45'; 30' in CB)

SP CM District Does not exceed height limits in Section 7.5.2 of the ZBL by more than 25 feet. Max = 70'.

Special Situations

To be located with a pre-existing non-conforming wireless communication service facility. SP Any Subject to ZBL Section 6.

An existing WCF to be replaced with a replacement WCF. SP Any Provided the replacement WCF decreases the degree of nonconformity.

Other new facilities. SP Any If adequately demonstrated to the SPGA in the special permit process that each of the five types of locations in section 15.3.1 is not feasible, and complies with the other requirements of section 15, and where visual impact can be minimized and mitigated.

Special Permits:

The Board of Appeals is designated as the Special Permit Granting Authority for Wireless Communication Facilities. There was considerable discussion at the public hearing about whether the Planning Board should be the SPGA. The Planning Board believes its role in this, or similar subjects such as Lighting (see Article 40), is to research and prepare an amendment to the Zoning By-Law. The administrative responsibility of conducting hearings and granting permits should rest with the Board of Appeals. The Planning Board needs to devote its time to planning activities.

A highly technical subject like this, or lighting, imposes new responsibilities on the Board of Appeals. They will need technical assistance. Some of that may come from volunteer help from Lexington residents knowledgeable in these fields. The proposed amendment provides for support and advisory roles for the Selectmen's Cable Television and Communications Advisory Committee and the Town's Design Advisory Committee. Some of it may come from technical consultants to the Board of Appeals who are paid from money charged as fees to applicants.

Other Provisions and Dimensional Standards:

1. Design Compatibility: Equipment shelters and accessory buildings must be designed to be architecturally similar and compatible with the surrounding area, and whenever possible, the shelter or building shall be constructed underground.

2. Setback and Height: New towers and antennas must be set back from each lot line at least a distance equal to the height of the tower. In nonresidential districts or on Town of Lexington owned land, the SPGA may grant a special permit to allow a lesser setback. The height of antennas is limited by the existing section 7.5 to a maximum of 45' in the case of a free standing structure, and if attached to an existing structure, to no more than 20' above the upper elevation.

3. Security, Signs, and Lighting: The area around the Wireless Communication Facility must be secure from trespass or vandalism. A sign not larger than one square foot must be posted adjacent to the entry gate indicating the name of the Facility owner(s) and a 24-hour emergency telephone number. No advertising is allowed. No lighting is allowed except as required by the Federal Aviation Administration, and except for manually operated emergency lights for use by operating personnel.

4. Reporting Requirements: The proposed amendment requires that wireless communications carriers periodically file with the Town, every five years (or sooner if specified in a special permit), information on operational aspects of the Facility including: power consumption; power radiation; frequency transmission; the number, location, and orientation of antennas; and types of services provided.

5. Removal Requirements: All structures associated with a Wireless Communication Facility are to be removed within one (1) year of the cessation of the use. At the time of removal, the site must be remediated and all equipment removed. If all Facilities on a tower have ceased to operate, the tower (including the foundation) shall also be removed and the site shall be revegetated. The applicant, as a condition of the Special Permit (if granted by the Special Permit Granting Authority), must provide a financial surety or other form of financial guarantee acceptable to the SPGA, to cover the cost of removal of the Facility and the remediation of the landscape, should the Facility cease to operate.

6. Justification of Need: If a Special Permit is required for the installation of a Wireless Communication Facility, the applicant for the Special Permit is required to justify to the Special Permit Granting Authority the need for that Facility. The applicant is required to file documentation on the coverage area of the proposed facility, the whether other Facilities controlled by the applicant would be capable of providing the coverage, the capacity of the other Facilities controlled by the applicant that could provide the coverage, and whether other technology could be used to increased the coverage without the necessity of constructing the proposed Facility.

Health and Safety Issues:

As long as the Wireless Communication Facility meets the requirements for radiation emissions set by the FCC, radiation emissions cannot be a rationale for excluding Wireless Communication Facilities from a community. A community cannot prohibit the siting of these Facilities based on health concerns of radio frequency (RFR) emissions.

A WORK IN PROGRESS

The regulation of wireless communication facilities is a rapidly changing subject. Both the technology and the regulatory environment are changing constantly.

After five months of effort and ten drafts, the Planning Board is hesitant to refer to the proposed amendment as a beginning but it is. The proposed amendment will need to be refined further based on experience in applying it. It is nevertheless a good zoning provision for Lexington and we urge that it be adopted. Lexington is very vulnerable at this time and must have a regulation in place.

Additional amendments and refinements to Section 15 should be anticipated ­ perhaps as early as the 1999 Annual Town Meeting.

PUBLIC HEARING

A duly advertised public hearing was held on March 9, 1998. Those present were generally in favor of the proposed amendment and agreed that such a zoning by-law is needed. Questions from the audience dealt with which Board should be the Special Permit Granting Authority, and how would it gain the technical expertise needed to make judgements about antennas, e.g., emissions levels and specifications for size and type needed to provide universal coverage. Hiring consultants, to be paid for by the applicants, was suggested. Referring to Mr. Bussgang's proposal that the Planning Board act as the SPGA, John McWeeney, Chairman of the Board of Appeals, stated that the Board of Appeals is happy to be the SPGA. The Board of Appeals always gets the input of those with expertise, including the Planning Board, the Design Advisory Committee and others. Mr. Merrill added that the Planning Board prefers to concentrate its efforts on a larger view of issues, which it lacks enough time to do as it is.

Other questions and comments were: How many permitted and un-permitted towers are there currently installed in Lexington. There are currently installations in 11 locations in town. One person suggested imposing a moratorium on antenna installations. Several questioned the wisdom of relying on an 'honor system' in which the applicant states its needs for coverage and is responsible for monitoring emissions from their antennas and removing them if they are not used for six consecutive months.

MOTION

That the Zoning By-Law be amended by adding a new Section 15, as follows:

SECTION 15. WIRELESS COMMUNICATION FACILITIES

15.1 OBJECTIVES:

This Section permits the use of wireless communication facilities within the town, regulates their impacts and accommodates their location and use in a manner intended to:

a. protect the scenic, historic, environmental and natural or man-made resources of the town,

b. protect property values,

c. minimize any adverse impacts on the residents of the town (such as, but not limited to, attractive nuisance, noise and falling objects) with regard to the general safety, welfare and quality of life in the community,

d. provide standards and requirements for regulation, placement, construction, monitoring, design, modification and removal of wireless communications facilities,

e. provide a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify wireless communication facilities,

f. encourage the use of certain existing structures and towers,

g. minimize the total number and height of towers located within the community,

h. require tower sharing and clustering of wireless communication facilities where they reinforce the other Objectives in this Section, and

i. be in compliance with the federal Telecommunications Act of 1996.

15.2 APPLICABILITY, TERMINOLOGY

15.2.1 APPLICABILITY

a. The requirements of this section shall apply to all wireless communications facilities, except where Federal or State Law or Regulations exempt certain users or uses from all or portions of the provisions of this Section.

No wireless communication facility shall be considered exempt from this Section by sharing a tower or other structure with such exempt uses.

15.2.2 TERMINOLOGY

In addition to the terms defined in Section 2, Definitions, of this By-Law, the following words, which are technical terms applying to wireless communication facilities, shall have the meaning indicated below. Although set forth here for convenience, the terms shall have the same effect as if set forth in Section 2, Definitions.

ACT: The Federal Telecommunications Act of 1996.

ADEQUATE COVERAGE: The geographic area in which the carrier provides a level of service expected by the Federal Communications Commission under its license or authority.

ANTENNA: A device by which electromagnetic waves are sent or received (whether a dish, rod, mast, pole, set of wires, plate, panel, line, cable or other arrangement serving such purpose).

AVAILABLE SPACE: The space on a tower or other structure to which antennas of a wireless communication service provider are able to fit structurally and be able to provide adequate coverage.

CAMOUFLAGED: A wireless service facility that is placed within an existing or proposed structure disguised, painted, colored, or hidden by a compatible part of an existing or proposed structure, or made to resemble an architectural feature of the building or structure on which it is placed.

CARRIER: A company, authorized by the FCC, that provides wireless communications services.

CHANNEL: One of the assigned bands of radio frequencies as defined in the ACT, licensed to the Service Provider for wireless service use.

CO-LOCATION: The use of a single mount by more than one carrier and/or several mounts on a building or structure by more than one carrier. Each service on a co-location is a separate wireless service facility.

COMMUNICATION EQUIPMENT SHELTER: A structure designed principally to enclose equipment used in connection with wireless communication transmission, and/or reception.

CONCEALED: A wireless service facility within a building or other structure, which is not visible from outside the structure.

DBM: A unit of measure of the power level of an electromagnetic signal expressed in decibels referenced to one (1) milliwatt.

FACILITY SITE: A lot or parcel, or any part thereof, which is owned or leased by one or more personal communication wireless service providers and upon which one or more wireless communication facility(s) and required landscaping are located.

MODIFICATION OF AN EXISTING FACILITY: Any material change or proposed change to a facility including but not limited to power input or output, number of antennas, change in antenna type or model, repositioning of antenna(s), or change in number of channels per antenna above the maximum number approved under an existing permit or special permit.

MONITORING: The measurement, by the use of instruments away from the antenna, of the electromagnetic radiation from a site as a whole, or from individual wireless communication facilities, towers, antennas, repeaters or associated power supplies and generators.

MONOPOLE: A single self-supporting vertical pole with no guy wire anchors, usually consisting of a galvanized or other unpainted metal, or a wooden pole with below grade foundations.

RADIO-FREQUENCY RADIATION (RFR): The electromagnetic emissions from wireless service facilities.

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 from the primary sending and receiving site in a wireless communications network.

TOWER: A structure or framework, or monopole, that is designed to support wireless communication transmitting, receiving and/or relaying antennas and/or equipment

WIRELESS COMMUNICATION SERVICES: Commercial mobile radio services, unlicensed wireless services, and common carrier wireless exchange access services as defined in the ACT.

WIRELESS COMMUNICATION FACILITY: All equipment buildings, and structures with which a wireless communication service carrier broadcasts and receives the radio-frequency waves which carry their services and all locations of said equipment or any part thereof.

WIRELESS COMMUNICATION SERVICE PROVIDER: An entity licensed by the Federal Communication Commission (FCC) to provide wireless communication services to individuals, businesses or institutions.

15.3 LOCATION OF FACILITIES

15.3.1 CRITERIA, PRIORITY FOR LOCATION OF FACILITIES

Wireless communication facilities shall be located according to the following priorities:

1) within an existing structure concealed,

2) within an existing structure and camouflaged,

3) camouflaged on an existing structure, such as but not limited to an existing electric transmission tower or an existing radio antenna, a water tower, or building, and of a compatible design,

4) co-located with existing wireless communication service facilities,

5) on Town of Lexington owned land which complies with other requirements of this section and where visual impact can be minimized and mitigated,

6) if adequately demonstrated to the SPGA in the special permit process that each of the five types of locations is not feasible, erection of a new facility which complies with the other requirements of this section and where visual impact can be minimized and mitigated

Applicants shall demonstrate that they have investigated locations higher in priority ranking than the one for which they are applying and whether sites are available and, if applicable, under what conditions.

15.3.2 LOCATIONS WHERE FACILITIES ARE PERMITTED BY RIGHT

A concealed wireless communication facility may be installed in a structure on a lot in a commercial district provided all the requirements for wireless communications facility building permit are met.

15.3.3 LOCATIONS WHERE FACILITIES ARE PERMITTED BY SPECIAL PERMIT

A wireless communication facility may be installed in the locations indicated in subparagraphs 15.3.3.1 through 15.3.3.5 provided all prescribed conditions are met and the SPGA grants a special permit.

15.3.3.1 MULTI-FAMILY DWELLING

A concealed wireless communication facility may be installed in a building or in a structure on a building on a lot on which a multi-family dwelling or group care facility (or other residential use listed in line 1.186 of Table 1, Permitted Uses and Development Standards), is the principal use provided all residents of such multi-family dwelling or group care facility (or other residential use listed in line 1.186 of Table 1, Permitted Uses and Development Standards) receive 30 days notice before the application for a special permit is submitted.

15.3.3.2 INSTITUTIONAL, AGRICULTURAL, NATURAL RESOURCE or COMMERCIAL USES IN RESIDENTIAL DISTRICTS

A concealed wireless communication facility may be installed in a building or in a structure on a building on a lot on which an Institutional, Agricultural, Natural Resource or Commercial Uses in A Residential District (as provided in subsections 2, 3, and 4 respectively of Table 1, Permitted Uses and Development Standards) is the principal use.

A wireless communication facility may be installed if it is co-located with an existing electrical power transmission line tower, an existing nonconforming transmitting or receiving tower, or a water tower, provided that the wireless communication facility is camouflaged and does not exceed the height of the tower as of January 1, 1998.

For the purposes of this section, an electrical power transmission tower, an existing transmitting or receiving tower or antenna for commercial activities other than a wireless communications facility (as provided in line 14.13 of Table 1, Permitted Uses and Development Standards) shall be considered to be a commercial use in a residential district.

15.3.3.3 MUNICIPALLY OWNED LAND IN RESIDENTIAL DISTRICTS

A wireless communication facility may be installed in residential districts:

a. on municipally owned land if it is camouflaged and does not exceed the height controls under Section 7.5.2.

b. on a municipally owned water tower if it is camouflaged and does not exceed the height of the water tower by more than 5 feet.

15.3.3.4 MUNICIPALLY OWNED LAND IN COMMERCIAL DISTRICTS

A wireless communication facility may be installed in commercial districts:

a. on municipally owned land if it does not exceed the height controls under Section 7.5.2.

b. on municipally owned land in the CM District if it does not exceed the height controls under Section 7.5.2, by more than 25 feet.

15.3.3.5 USES IN COMMERCIAL DISTRICTS

A wireless communication facility may be installed on a lot in a commercial district provided the wireless communication facility is camouflaged and does not exceed the height controls under section 7.5.2.

15.3.4 LOCATIONS WITH NON CONFORMING SITUATIONS

The SPGA may grant a special permit to:

a. modify a pre-existing nonconforming wireless communication facility, subject to the provisions of Section 6 of this By-Law; or

b. allow an existing wireless communication facility to be reconstructed with a replacement wireless communication facility if it decreases the degree of nonconformity.

15.4 DIMENSIONAL, SCREENING AND OTHER SITE DEVELOPMENT REQUIREMENTS

15.4.1 SHELTERS AND ACCESSORY BUILDINGS

Any communication equipment shelter or accessory building shall be designed to be architecturally similar and compatible with the surrounding area. Whenever feasible, a building shall be constructed underground.

15.4.2 SETBACKS

Any new tower shall be set back at least one (1) times the height of the tower plus ten feet from each lot line of the site on which the tower is located. Any non-concealed antenna shall be set back at least one (1) time the height of the antenna, as measured from the ground level, from each lot line of the site on which the antenna is located. In nonresidential districts or on Town of Lexington owned land, the SPGA may grant a special permit to allow a lesser setback if it makes a finding that such lesser setback provides adequate safety, promotes co-location or improves design, and will not negatively impact the appearance and character of the neighborhood.

15.4.3 SECURITY, SIGNS

The area around the wireless communication facility shall be completely secure from trespass or vandalism. A sign not larger than one square foot shall be posted adjacent to the entry gate indicating the name of the facility owner(s) and a 24-hour emergency telephone number. Advertising on any antenna, tower, fencing, accessory building or communication equipment shelter is prohibited.

15.4.4 LIGHTING

Unless required by the Federal Aviation Administration, no exterior night lighting of towers or the wireless communication facility is permitted except for manually operated emergency lights for use when operating personnel are on site.

15.4.5 NEW TOWERS

Any new freestanding tower shall be of a monopole construction. New towers shall not exceed the minimum height necessary to provide adequate coverage within the Town of Lexington. Erection of a new tower that exceeds the height restrictions listed in Section 15.3 is not permitted unless the applicant demonstrates in the special permit process that adequate coverage within the town of Lexington can not be met for the locations permitted under Section 15.3.

15.5 JUSTIFICATION OF NEED

15.5.1 COVERAGE AREA

The applicant shall provide a map of the geographic area in which the proposed facility will provide adequate coverage.

15.5.2 ADEQUACY OF OTHER FACILITY SITES CONTROLLED BY THE APPLICANT

The applicant shall provide written documentation of any facility sites in the town and in abutting towns or cities in which it has a legal or equitable interest, whether by ownership, leasehold or otherwise. Said documentation shall demonstrate that these facility sites do not already provide, or do not have the potential to provide by site adjustment, adequate coverage.

15.5.3 CAPACITY OF EXISTING FACILITY SITES

The applicant shall provide written documentation that it has examined all facility sites located in the town and in abutting towns in which the applicant has no legal or equitable interest to determine whether those existing facility sites can be used to provide adequate coverage.

15.5.4 ADEQUATE COVERAGE THROUGH THE LEAST DISRUPTIVE MEANS

The applicant shall provide written documentation that the proposed facility uses the least disruptive technology (through the use of repeaters or other similar technology as it may be developed subsequent to adoption of this By-Law) in which it can provide adequate coverage in conjunction with all facility sites listed above.

15.6 APPLICATION, PERMITS AND SPECIAL PERMITS

15.6.1 APPLICANT

The applicant or co-applicant for any permit for a wireless communications facility must be a licensed carrier who has authority from the FCC to provide wireless communication services for the facility being proposed. The applicant shall submit documentation of the legal right to install and use the proposed facility mount at the time of the filing of the application for the permit.

15.6.2 REVIEW BY THE DESIGN ADVISORY COMMITTEE

The Town of Lexington's Design Advisory Committee shall review an applicant's site plans and make recommendations to the Director of Inspectional Services for By Right Permit applications and to the SPGA for Special Permits. The Design Advisory Committee will make comment on whether the site plans show that a proposed wireless communications facility will be concealed for a By Right Permit is built according to the plans, or whether the site plans show that a proposed wireless communications facility will be concealed, or sufficiently camouflaged for a Special Permit if built according to the plans.

15.6.3 REVIEW BY THE SELECTMEN'S CABLE TELEVISION AND COMMUNICATIONS ADVISORY COMMITTEE

The Board of Selectmen's Cable Television and Communications Advisory Committee shall review an applicant's application and make recommendations to the Director of Inspectional Services for By Right Permit applications and to the SPGA for Special Permits. The Cable Television and Communications Advisory Committee will make comment as to the application's adherence to the provisions of Section 15. The Committee may recommend that a consultant be hired by the SPGA (at the applicant's expense) if technical expertise is needed.

15.6.4 PERMITS

Each application for a Permit must contain site plans with sufficient detail that would enable the Town to verify that the proposed facility will be concealed if built to the plans.

15.6.5 SPECIAL PERMIT GRANTING AUTHORITY (SPGA)

The Board of Appeals shall be the SPGA for permits under this Section.

15.6.6 WIRELESS COMMUNICATIONS FACILITY REGULATIONS

The SPGA shall maintain a set of regulations that contains the necessary policies, procedures, and standards to implement the provisions of this section.

15.6.7 APPROVAL CRITERIA

A special permit shall be granted under this section only if the SPGA shall find that the project is in harmony with the general purpose and intent of this By-Law and the SPGA's Regulations. In addition, the SPGA shall make all the applicable findings before granting the special permit, as follows:

a. that the applicant is not already providing adequate coverage or is unable to maintain adequate coverage without the special permit,

b. that the applicant is not able to use existing facility sites either with or without the use of repeaters to provide adequate coverage,

c. that the proposed wireless service facility minimizes any adverse impact on historic resources, scenic views, residential property values, natural or man-made resources,

d. that the applicant has agreed to implement all reasonable measures to mitigate the potential adverse impacts of the facilities,

e. that the facility shall comply with the appropriate FCC Regulations regarding emissions of electromagnetic radiation and that the required monitoring program is in place and shall be paid for by the applicant, and

f. that the applicant has agreed to rent or lease available space on any tower it controls within Lexington or its contiguous towns, under the terms of a fair-market lease, without discrimination to other wireless service providers.

If a special permit is granted, in addition to such terms and conditions as may be authorized by subsection 3.3.3 of this By-Law, the SPGA may impose such additional conditions and safeguards as public safety, welfare and convenience may require.

Any decision by the SPGA to deny a special permit under this section shall be in conformance with the Act, in that it shall be in writing and supported by substantial evidence contained in a written record.

15.6.8 TERM OF PERMIT

Each Special Permit shall be valid for a fixed or conditional period of time as determined by the Special Permit Granting Authority. A special permit for any wireless communication service facility that exceeds height provisions of Section 7.5.2 shall be valid for a maximum of fifteen years. At the end of the approved time period, the facility shall be removed by the carrier or a new special permit shall be required.

All permitted and special permitted wireless communications facility carriers shall periodically file with the Town, every five years (or sooner if specified in a special permit), on operational aspects of the facility including: power consumption; power radiation; frequency transmission; the number, location, and orientation of antennas; and types of services provided.

15.7 REMOVAL REQUIREMENTS

Any wireless service facility that 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 wireless service facility and its equipment on a continuous and ongoing basis for a period of one year. At the time of removal, the facility site shall be remediated such that all wireless communication facilities that have ceased to operate are removed. If all facilities on a tower have ceased to operate, the tower (including the foundation) shall also be removed and the site shall be revegetated by the owner. Existing trees shall only be removed if necessary to complete the required removal. The applicant shall, as a condition of the special permit, provide a financial surety or other form of financial guarantee acceptable to the SPGA, to cover the cost of removal of the facility and the remediation of the landscape, should the facility cease to operate."

--- END OF SECTION 15 ---

In Section 2, DEFINITIONS, by adding the following in the proper place in alphabetical order:

ACT: (See Section 15, Wireless Communication Facilities, for definition.)

ADEQUATE COVERAGE: (See Section 15, Wireless Communication Facilities, for definition.)

ANTENNA: (See Section 15, Wireless Communication Facilities, for definition.)

AVAILABLE SPACE: (See Section 15, Wireless Communication Facilities, for definition.)

CAMOUFLAGED: (See Section 15, Wireless Communication Facilities, for definition.)

CARRIER: (See Section 15, Wireless Communication Facilities, for definition.)

CHANNEL: (See Section 15, Wireless Communication Facilities, for definition.)

CO-LOCATION: (See Section 15, Wireless Communication Facilities, for definition.)

COMMUNICATION EQUIPMENT SHELTER: (See Section 15, Wireless Communication Facilities, for definition.)

CONCEALED: (See Section 15, Wireless Communication Facilities, for definition.)

DBM: (See Section 15, Wireless Communication Facilities, for definition.)

FACILITY SITE: (See Section 15, Wireless Communication Facilities, for definition.)

MODIFICATION OF AN EXISTING FACILITY: (See Section 15, Wireless Communication Facilities, for definition.)

MONITORING: (See Section 15, Wireless Communication Facilities, for definition.)

MONOPOLE: (See Section 15, Wireless Communication Facilities, for definition.)

RADIO-FREQUENCY RADIATION (RFR): (See Section 15, Wireless Communication Facilities, for definition.)

REPEATER: (See Section 15, Wireless Communication Facilities, for definition.)

TOWER: (See Section 15, Wireless Communication Facilities, for definition.)

WIRELESS COMMUNICATION SERVICES: (See Section 15, Wireless Communication Facilities, for definition.)

WIRELESS COMMUNICATION FACILITY: (See Section 15, Wireless Communication Facilities, for definition.)

WIRELESS COMMUNICATION SERVICE PROVIDER: (See Section 15, Wireless Communication Facilities, for definition.)

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In Table 1, Permitted Uses and Development Standards, in subsection 4, Commercial Uses in Residential Districts, by adding a new line, 4.15, as follows:

"4.15 Wireless communication facility

(See Section 15)"

and by including the designation "SP" under the RO/RS, RT, RM, and RD district headings, so the new line 4.15 will read:

RO

RS CB

CLO

Line RT RM RD CN CRS CS CRO CM

4.15 Wireless communication facility

(See Section 15) SP SP SP SP

and in subsection 14, Utility, Communications and Transportation, by adding a new line, 14.19, as follows:

"14.19 Wireless communication facility

(See Section 15)

(*Y if concealed, see Section 15.3.2)"and by including the designation "SP*" under the district heading for each of the commercial zoning districts listed in Part B of Table 1, so the new line 14.19 will read:

Line ALL COMMERCIAL USES CN CRS CS CB CLO CRO CM

14.19 Wireless communication facility

(See Section 15)

(* Y if concealed, see Section 15.3.2) SP* SP* SP* SP* SP* SP* SP*

and in subsection 14, Utility, Communications and Transportation, in line 14.13 by adding the words "other than those which are used exclusively for wireless communication facilities" after the words "Transmitting or receiving tower or antenna for commercial activities", so the entry as amended, will read:

"Transmitting or receiving tower or antenna for commercial activities other than those which are used exclusively for wireless communication facilities".

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In subparagraph 7.5.2 STRUCTURES OTHER THAN BUILDING, in the first paragraph, second sentence, by inserting after the word "antennas," the phrase, "wireless communication facilities that are permitted as provided in section 15," so that the second sentence will read: "Structures other than buildings, such as antennas, wireless communication facilities that are permitted as provided in section 15, recreational apparatus, fences and the like may be located in a required front, rear or side yard provided the height of the structure is not greater than its horizontal distance from the lot line, except that a fence or wall not greater than six feet in height may be located on, or closer to a lot line than six feet."

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In subparagraph 7.5.2 STRUCTURES OTHER THAN BUILDING, in the second paragraph, first sentence, by inserting after the word "antennas," the phrase, "wireless communication facilities that are permitted as provided in section 15," so that the first sentence will read: "Structures erected on a building and not used for human occupancy, such as chim-neys, heating-ventilating or air conditioning equipment, solar or photo-voltaic panels, elevator housings, antennas, wireless communication facilities that are permitted as provided in section 15, skylights, cupolas, spires and the like may exceed the maximum height of a building in feet provided no part of the structure is more than 20 feet higher than the upper elevation of the building and the total horizontal coverage of such structures on the building does not exceed 25 percent.