Milton Wireless Telecommunication Facilities Bylaw

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BYLAW: Wireless Telecommunication Facilities Bylaw.

MUNICIPALITY: Milton, Massachusetts

DATE ADOPTED: (Added ATM 5/1/00, approved 7/19/00)

PURPOSE:
The purpose of this Subsection is to regulate the siting, construction and removal of wireless telecommunications facilities so as to promote the safety, welfare and aesthetic interests of the Town of Milton. It is the intent of this Subsection to:

(a) encourage the concealment of wireless telecommunications facilities within pre-existing structures, other than single family or multi-family dwellings or accessory structures thereto;
(b) encourage the camouflaging of wireless telecommunications facilities attached to pre-existing structures;
(c) encourage, where location on pre-existing structures is not feasible, the co-location of wireless telecommunications facilities on free-standing towers currently in existence or for which special permits have been issued as of the effective date of this bylaw;
(d) encourage the use of wireless communications facilities which employ the least visually intrusive technology available in the industry;
(e) discourage the construction or location of free-standing towers;
(f) maintain and preserve the residential character of the Town of Milton by eliminating or minimizing the adverse visual and aesthetic impact of all wireless telecommunications facilities; and
(g) encourage competition among the providers of wireless telecommunication services to develop creative solutions to the particular and unique problems associated with the providing of wireless telecommunications services within the Town of Milton that do not detract from the aesthetic qualities of the Town generally and the neighborhoods in particular where such facilities are proposed to be located.

2. Definitions
For the purpose of this Subsection G, the following definitions shall apply:

"antenna" -- any apparatus designed for telephonic, radio, or television communications through the sending and/or receiving of electromagnetic waves. "camouflaged wireless telecommunications facility" -- a wireless telecommunications facility that is disguised, shielded, hidden, or made to appear as an architectural component of an existing or proposed structure the use of which is otherwise permitted under the zoning bylaws of the Town of Milton. No wireless telecommunications facility attached to an existing structure shall be deemed "camouflaged" for the purpose of this bylaw where it extends vertically more than ten (10) feet above the height of the structure nor horizontally more than ten (10) feet beyond the face of any exterior side wall or the exterior of any surface of a structure with no side walls. "concealed wireless telecommunications facility" -- a wireless telecommunications facility that is entirely contained within the architectural features of an existing or proposed structure the use of which is otherwise permitted under the zoning bylaws of the Town of Milton such that no part of the facility is visible from the exterior of the structure. Antennas and other components of a wireless telecommunications facility situated within a free-standing wireless telecommunications facility shall not be deemed "concealed" or
"camouflaged" for the purpose of this bylaw.

"co-location" -- the use of a single free-standing wireless telecommunications facility by more than one carrier.

"free-standing wireless telecommunications facility" -- any structure that is designed and constructed primarily to support one or more antennas including without limitation self-supporting lattice towers, guy towers or monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular and personal communication service towers. "provider" or "carrier" -- any person, corporation or other entity engaged in the business of providing wireless telecommunication services. "wireless telecommunications facility" -- a facility consisting of the structures, including towers and antennas mounted on towers and buildings, equipment and equipment shelters, accessory buildings and structures, and site improvements, involved in sending and receiving telecommunications or radio signals from a mobile communications source and transmitting those signals to a central switching computer which connects the mobile unit with land based or other telephone lines.

3. Use Regulations
No person shall construct or locate a wireless telecommunications facility within the Town of Milton except as provided below:

(a) Uses as of Right. Any person shall be permitted to construct or locate a wireless telecommunications facility in any zoning district if such facility is entirely concealed within an existing structure or attached to any existing structure but camouflaged thereon; provided, however, that no person shall maintain a wireless telecommunications facility concealed in or camouflaged on a single-family or multi-family residence or any accessory structure to a residential use located in any zoning district. Any building permit issued according to this Section shall require the holder of such building permit to post a bond or other surety, as described in Section 6.
(b) Design Review Approval. Any wireless telecommunications facility the use of which is permitted under the provisions of Section 3(a) above shall obtain design review approval prior to the issuance of any building permit as provided in Section 5 below.
(c) Special Permit. No person shall construct or maintain any of the following without a special permit issued by the Board of Appeals hereinafter designated "the Board" in accordance with the provisions of Section 4 below: (1) any free-standing wireless telecommunications facility;
(2) a wireless telecommunications facility concealed in or camouflaged on a barn or carriage house;
(3) any other wireless telecommunications facility the use of which is not permitted under Section 3(a) above. (d) Historic Districts. No free standing wireless telecommunications facility shall be constructed within any historic district established pursuant to the provisions of General Law Chapter 40C or any area listed in the National Registry of Historic Districts.

4. Special Permit Procedure

(a) Contents of application. Each applicant for a special permit under Section 3(c) above shall include in the application the following information:

(1) copy of the owners' deed to the lot or parcel where a proposed facility is to be located; or evidence of the applicant's right to possession and/or control of the premises where the applicant is not the owner of record;
(2) a narrative description of the proposed facility including the location and identification of all components together with a statement describing the purpose of each component and its intended function plus photographs or other graphic illustrations fairly depicting the physical appearance of the proposed components;
(3) a locus plan prepared and certified by a professional engineer depicting all property lines, the exact location and dimension of all components of the proposed facility including all structures, streets, landscape features, including contours residential dwellings and all buildings within 500 feet of the proposed facility;
(4) an itemized description of other wireless telecommunications facilities owned and/or operated by the applicant or for which the applicant is currently seeking approval and which are either located in the Town of Milton or within a two mile radius of the Town of Milton or which are capable of providing service to customers operating within the Town of Milton;
(5) a description of all federal, state and local licenses, permits, or other approvals obtained by the applicant to date or to be obtained by the applicant prior to construction of the proposed facility;
(6) a statement as to whether an Environmental Assessment (EA), a Draft Environmental Impact Statement (DEIS) or Environmental Impact Statement (EIS) is or will be required under the National Environmental Protection Act or the National Historic Preservation Act, and if so, a copy of the said EA, DEIS, or EIS;
(7) a description in both geographical and radio frequency terms of the scope and quality of the service currently being provided to the Town of Milton by the applicant's existing facilities, if any;
(8) a description in both geographical and radio frequency terms as to the need to be addressed by the proposed facility;
(9) a description in both geographical and radio frequency terms as to precisely the manner in which the proposed facility addresses the needs identified in subsection (8) above;
(10) a statement describing the current state of technology available to provide wireless telecommunications services, and whether any such technology is available and feasible for the purpose of addressing the proposed need described in subsection (8) above.
(11) a statement as to whether the applicant considered any alternatives to a free-standing facility including but not limited to co-locating on an existing facility and, if so, the reason(s) such alternatives are not being proposed;
(12) a statement as to why there exists no feasible alternative to a free-standing facility to address the need identified by the applicant in subsection (8) above;
(13) a statement as to whether the need identified in subsection (8) above may be adequately met by siting a facility on other property;
(14) a description of the radio frequency testing procedures conducted by the applicant in connection with the proposed facility, if any, and the results thereof;
(15) a statement as to whether the proposed facility will have any impact on an environmentally, historically or archaeologically significant area in the vicinity of the proposed facility or upon any public way that has been designated as a Scenic Road in the Town of Milton;
(16) a statement setting forth the applicant's projected future needs for wireless telecommunication facilities within the Town of Milton;
(17) a description of the terms of any co-location agreements between the applicant and any other provider of wireless telecommunication services to the Town of Milton; and
(18) whether the applicant is seeking approval of co-location facilities on the proposed free standing facility, and if so, a detailed description in compliance with the preceding sub-sections of all components of the co-location facility for which the applicant is seeking approval.

(b) Pre-hearing Procedures. After notice of the public hearing has been published as provided by General Laws Chapter 40A, section 11, but prior to the hearing for which notice has been given thereunder, the applicant shall, with no less than 48 hours written notice to the Board and all immediate abutters, and owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property line of the applicant as they appear on the most recent applicable tax list, conduct a balloon or crane test, or such other reasonable equivalent, of the height of the proposed free standing facility and submit to the Board prior to the hearing a photographic representation from a suitable number of locations so as to depict the visual impact of the proposed facility on the Town, the neighborhood and the abutters to the site.
(c) Independent Consultants. The Board may at any time assess fees against the applicant in accordance with rules and regulations adopted pursuant to General Laws Chapter 44, section 53G, for the purpose of employing an independent consultant to evaluate any aspect of the proposed facility, including current service coverage. The applicant shall cooperate fully with the independent consultant selected by the Board and shall provide all information reasonably requested by the consultant including but not limited to radiological testing.
(d) Standard for Issuance of Special Permit. The Board shall issue a special permit for the construction of a free-standing wireless telecommunications facility only where it finds that (1) existing facilities do not adequately address the need for service, (2) there exists no feasible alternative to the proposal that would adequately address the need in a less intrusive manner, and (3) the proposed use is in harmony with the general purpose and intent of this bylaw.
(e) Conditions of Issuance of Special Permit. The Board may attach such terms and conditions to any special permit issued hereunder in order to protect the safety and welfare of the Town and to mitigate the visual impact of any free-standing facility to be constructed pursuant to a special permit issued hereunder. Such terms and conditions may relate to, but shall not be limited to,
(1) appearance including color, style and materials, in conformity with applicable law and Town of Milton requirements;
(2) the type and dimensions of any fencing surrounding all or part of the facility;
(3) landscaping requirements at and around the facility;
(4) contents and dimensions of any signs if any are to be permitted by the Board;
(5) establishing noise limitations so as not to unreasonably disturb residents surrounding the facility during construction, operation or maintenance of the facility;
(6) hours of access to the facility for the purpose of conducting routine maintenance and inspections;
(7) limits as to the permissible height of any component of the facility;
(8) provisions to assure adequate lighting and lighting that is not intrusive to neighbors;
(9) safety provisions to guard against damage to persons or property in the event of a collapse or structure failure of any component of the facility;
(10) provisions for the removal of the facility upon abandonment or expiration of the special permit, including without limitation a bond or other surety; such bond or other surety shall be maintained throughout the period of construction, location, operation and use of the subject wireless telecommunications facility; the Building Commissioner shall receive thirty (30) days prior written notice of any cancellation, non-renewal or material amendment of such bond or other surety; and
(11) whether co-locations will be pre-approved, and if so, the terms and conditions of any such co-location pre-approval. (f) Duration of Special Permit. Unless and earlier expiration date is specified by the Board in a special permit, all special permits issued under this bylaw shall expire automatically upon the expiration of five years from the date of issuance. Prior to expiration the applicant may apply for renewal of the special permit for another five-year period, said application to comply with all of the provisions of Section 3 and 4 of this bylaw. In determining whether the special permit shall be renewed, the Board shall take into consideration whether there now exist any structures and/or technology available to the applicant which would enable the applicant to provide functionally equivalent services in a less intrusive manner. Upon expiration of a special permit which has not bee renewed, the applicant shall disassemble and remove the entire facility forthwith at its expense, and any such facility not removed in its entirety within thirty days of the expiration of the special permit shall be deemed abandoned within the meeting of Section 6 below.

5. Design Review
(a) The Board of Selectmen shall appoint a Design Review Committee which shall consist of a member of the Planning Board who shall initially serve for a two-year term, a member of the Board of Appeals who shall initially serve for a three-year term, and a third member, who shall be a Milton resident, who shall initially serve for a one-year term. Each person appointed subsequent to the initial appointments shall serve for a three-year term.
(b) No building permit for the construction of a wireless telecommunications facility the use of which is permitted as of right pursuant to Section 3(a) of this bylaw shall be issued by the Building Commissioner until such time as the facility design has been reviewed by the Design Review Committee as provided herein. The Design Review Committee shall within twenty-one days of the filing of the application make a written finding that the proposed wireless telecommunications facility (1) does not substantially alter the exterior appearance of the structure in which it is to be located, or (2) substantially alters the appearance of the structure in which it is to be located. If the Design Review Committee fails to make a written finding within said twenty-one (21) day period the building permit process shall proceed without further review by said Committee.
(c) The written findings required by Section 5(b) above shall issue only upon a vote in favor by at least two of the three members of the Design Review Committee. A written finding under Section 5(b) shall be signed by each member of the committee who voted in favor of the issuance of said finding. All written findings issued under this bylaw shall be maintained under the control of the Building Commissioner.
(d) A written finding under Section 5(b) above shall constitute approval of the facility design by the Design Review Committee. Where the Design Review Committee issues a written finding under Section 5(b)(2) above, it may attach to its findings reasonable terms and conditions pertaining to the color, materials, design, dimensions, and other aspects of the exterior appearance of the proposed wireless telecommunications facility and/or the structure in which it is to be concealed or to which it is to be attached. Said terms and conditions issued by the Design Review Committee shall be incorporated by the Building Commissioner into the terms of any building permit issued thereafter.
(e) Any person aggrieved by the written finding or terms and conditions attached to the finding described in Section 5(b) above may appeal the decision of the Design Review Committee to the Board of Appeals.

6. Removal of Abandoned Facilities Any wireless telecommunications facility that is not operated or that is not in compliance with these bylaws for a continuous period of thirty days shall be considered to be abandoned, and the Building Commissioner may, by written notice sent by certified mail, order that such facility be removed within thirty days. At the time of removal the facility and all associated debris shall be removed from the premises. Any building permit issued pursuant to Section 3 above and any special permit issued pursuant to Section 4 above shall require the holder of such building permit or special permit to post a bond or other surety, specifically approved by Town Counsel, in an amount and for a term both sufficient to guarantee the removal of the facility in accordance with this section and the lawful disposal of any components thereof. Such bond or other surety shall be maintained throughout the period of construction, location, operation and use of the subject wireless telecommunications facility; the Building Commissioner shall receive thirty (30) days prior written notice of any cancellation, non-renewal or material amendment of such bond or other surety. In the event that the posted amount does not cover the cost of such removal and disposal, the Town may place a lien upon the premises covering the difference in costs.

7. Indemnification Any building permit issued pursuant to Section 3 above and any special permit issued pursuant to Section 4 above shall require the holder of such building permit or special permit to indemnify and hold harmless the Town of Milton and its boards, commissioners, committees, officers, employees, agents and representatives from and against all claims, causes of action, suits, damages, costs and liability of any kind which arise out of the construction, location, operation or use of the subject wireless telecommunications facility in the Town of Milton.

8. Exemptions The provisions of this bylaw shall not apply to:
(a) wireless telecommunications facilities providing safety or emergency services for any federal, state or municipal body;
(b) amateur radio antennas licensed by the Federal Communications Commission and subject to General Laws Chapter 40A, section 3, provided that such antennas are not used for any commercial purpose and do not exceed 35 feet in height;
(c) home television or internet access antennas;
(d) medical facilities for transmittal of clinical medical information.