Subject: MMA's Proposed Legislation (Jonsson)..
Date: Tue, 1 Feb 2000 184426 -0600 (CST)
From: "Roy L. Beavers"
To: emfguru
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.........All hands man your battle stations (in Massachusetts).......!!!
This sort of thing can be done in the state of the Kennedy's.....?????
I can't believe it........!!!!!
Sorry to have to send this to everyone on the list -- but I don't want
to miss anyone in Massachusetts......
Clearly, what you see below is a typical industry end-run ... around those
citizens who have been questioning the wisdom of the cell tower siting
policy in the state......
Roy Beavers (EMFguru)
roy@emfguru.com
.....It is better to light a single candle than to curse the darkness.....
NEW!!! Website... http://emfguru.com
...................People are more important than profits.................
---------- Forwarded message ----------
Date: Tue, 01 Feb 2000 18:10:49 -0500
From: azul@flash.net
To: "Roy L. Beavers"
Subject: MMA's Proposed Legislation
Apparently this will still be tweaked
-Suzanne
REVISED DRAFT 1/21/00
FINAL DRAFT
AN ACT PROVIDING A MORE EFFICIENT AND UNIFORM PROCESS FOR IMPLEMENTING
MUNICIPAL AUTHORITY OVER THE PLACEMENT, CONSTRUCTION AND MODIFICATION OF
WIRELESS COMMUNICATIONS FACILITIES
Be it enacted by the Senate and House of Representatives in General
Court assembled and by the authority of the same as follows:
Section 1. The provisions of section 3 of this act are set forth in
order to provide for a more efficient and uniform process for
implementing the authority of cities and towns over decisions regarding
the placement, construction and modification of wireless
telecommunications facilities within Massachusetts in recognition that
the provision of reliable modern communications services are beneficial
to the public safety and economic well being of the citizens of the
Commonwealth and its municipalities, and to encourage co-location of
such facilities.
Section 2. Section 3 of chapter 40A of the General Laws, as appearing
in the 1998 Official Edition, is hereby amended by inserting at the end
of the second paragraph after the words "welfare of the public" the
following: -; and provided further that lands and structures may not be
exempted from the operation of a zoning ordinance or by-law which
applies to the siting of a wireless telecommunications facility, as
defined in section nine D, unless the petition for such exemption was
filed with the department of telecommunications and energy on or before
October first, nineteen hundred and ninety-nine.
Section 3. Chapter 40A of the General Laws, as appearing in the 1998
Official Edition, is hereby amended by adding a new section nine D
thereto as follows:
Section 9D. Wireless Telecommunications Facilities - The following
provisions shall govern the placement, construction and modification of
wireless telecommunications facilities as hereafter defined.
a. Definitions. As used in this section nine D, the terms described
below shall have the following meanings:
"Ancillary equipment," all equipment necessary to the secure and
successful operation of a minor or major wireless telecommunications
facility, including, but not limited to: a support structure; antennas;
transmitting, receiving, and combining equipment; equipment shelter
containing radios and electronic equipment; transmission cables;
telephone lines; utility lines; and backup power source.
"Interior wireless telecommunications facility," a minor wireless
telecommunications facility located entirely within a building or
structure that is occupied or used primarily for other purposes, but
which may include ancillary equipment not located within the building or
structure, provided that such facility and ancillary equipment are not
visible from any public way or abutting property.
"Major wireless telecommunication facility," any wireless
telecommunications facility that is not a minor wireless
telecommunications facility.
"Minor wireless telecommunications facility," any wireless
telecommunications facility (a) installed on or in or attached on or to
a building or existing wireless telecommunications tower or pole or
utility transmission tower, overhead cable, smokestack, steeple, water
tank or billboard and ancillary equipment adjacent thereto; (b) composed
solely of antennas and ancillary telecommunications equipment which do
not extend higher than ten feet above the highest point of the building
or structure on which the wireless telecommunications facility is
installed; and (c) made of such materials or painted so as to blend in
appearance to the extent practicable with the building or structure upon
which it is installed. To the extent that any tower or pole that was
previously authorized is replaced with a tower or pole which is
substantially similar in design and is not greater than the same height,
or with a one time increase in height of not more than ten feet, that
structure shall be deemed to be a minor wireless telecommunications
facility provided that the original tower or pole is removed within a
reasonable time after the construction of the replacement.
"Personal wireless services," any wireless telecommunications services
and commercial mobile services including cellular telephone services,
enhanced special mobile radio services, personal communications services
and mobile and radio paging services as defined in the
Telecommunications Act of 1996, 47 U.S.C. §332(c)(7)(C)(i).
"Utility transmission tower," any tower that has carried or is capable
of carrying lines for the transmission of electricity at a voltage level
typically equal to or greater than 69,000 volts.
"Wireless telecommunications facility," any "personal wireless service
facility" as defined in the Telecommunications Act of 1996, 47 U.S.C.
§332(c)(7)(C)(ii), including facilities used or to be used by a licensed
provider of personal wireless services.
b. Allowed Use. Upon application for a building permit, a minor wireless
telecommunications facility shall be an allowed use in all zoning
districts and shall be subject only to the requirements, restrictions
and limitations set forth in subsections a and b of section nine D;
provided, however, that a minor wireless telecommunications facility
shall be an allowed use in a residential zoning district only if it is
(i) located on municipally owned land, a water tank, or an existing
wireless telecommunications facility or replacement of such facility
pursuant to subsection (a) herein; (ii) located on a utility
transmission tower only if installation on any such utility transmission
tower does not extend greater than five feet above the utility
transmission tower; or (iii) is an interior wireless telecommunications
facility, provided that if a minor wireless telecommunications facility
is also in an historic district, it will be allowed only if such
facility is an interior wireless telecommunications facility or
otherwise complies with the requirements of such historic district. All
other minor wireless telecommunications facilities in a residential
zoning district shall be treated as major wireless telecommunications
facilities.
An application for a building permit for a proposed minor wireless
telecommunications facility shall be submitted to the building inspector
who may forward any such application to such other municipal officer or
board, if any, as may be designated by the selectmen, mayor or manager
to assist in reviewing the application. The application shall contain
such plans, specifications and other information as are required to
establish the proposed facility’s conformance to the state building code
and compliance with the requirements of this subsection b. The
application shall also contain a description of the proposed maintenance
and security for the proposed facility. The building inspector or other
reviewing authority may impose as a condition on the building permit for
such minor wireless telecommunications facility a requirement for the
posting of a bond at a value equivalent to the estimated removal cost
for the removal of such facility at such time as it ceases to be used as
a wireless telecommunications facility. The application shall be
approved or denied in writing within 30 days after receipt of the
completed application; provided, however, that if such application is
denied, the reasons shall be set forth in writing.
c. Special Permits. A major wireless telecommunications facility may be
located in any zoning district upon a grant of a special permit by the
special permit granting authority in accordance with the provisions of
section nine of this chapter, except as otherwise provided in this
section nine D; provided that a municipality may designate in a zoning
by-law or ordinance one or more categories of such facilities to be
allowed without a special permit in all or specified zoning districts.
In issuing a special permit under this subsection, the special permit
granting authority may waive or otherwise reduce the effect of any
requirements or prohibitions of any zoning bylaw or ordinance; provided,
however, any zoning bylaw or ordinance limiting the number of permitted
uses or structures on a lot shall not apply to a wireless
telecommunications facility authorized under subsection b or c.
Any decision to deny a special permit for a major wireless
telecommunications facility or minor wireless telecommunications
facility shall be in writing and contain the reasons for such denial.
d. Request for Guidance. At any time prior to application for a special
permit for a proposed major wireless telecommunications facility, or
during the pendency of a hearing on a special permit for such facility,
the applicant or prospective applicant may at its discretion request
that the special permit granting authority provide it with guidance as
to any issues of concern to the special permit granting authority with
respect to the proposed or pending application. Upon such request, the
special permit granting authority shall provide the applicant with such
guidance to assist the applicant in understanding and responding to any
such concerns.
e. Facilitation. At any time during the public hearing process, but
prior to the issuance of a final written decision, a special permit
granting authority or applicant for a special permit under this section
may request that a facilitator be appointed to address any issues in
dispute between the special permit granting authority and the applicant
that appear unlikely to be resolved to the satisfaction of both by the
issuance of a special permit acceptable to the applicant. If both
parties agree to facilitation, the parties shall agree on the
appointment of an individual, group of individuals or an institution as
the facilitator. The parties shall cooperate in good faith with the
facilitator and shall share equally the charges and expenses of the
facilitator provided that each party shall pay for the costs and
expenses incurred by the facilitator, if any, designated by it. The
public hearing may be suspended for the time during which such
facilitation is taking place, or may proceed as to issues other than the
ones being addressed through facilitation. Such facilitation shall be
completed within 30 days unless both parties agree in writing to extend
the time for completing facilitation.
f. Fees. Fees imposed by a municipality upon an applicant for the
placement, construction, or modification of a wireless
telecommunications facility shall not exceed the normal and customary
building permit application fee or special permit application fee for a
commercial use in such municipality. In addition to the foregoing,
subject to section fifty-three G of chapter forty-four whether or not
any rules regarding fees or appeals are promulgated by the municipality,
the special permit granting authority may consult with an expert in
engineering or telecommunications facility siting for assistance in
reviewing an application under section nine D to the extent necessary to
allow a full and fair evaluation of such application, and the applicant
shall upon a request made in accordance with and subject to section
fifty-three G of chapter forty-four, pay the reasonable fees.
g. Technical Review. Upon request, applicants shall provide the special
permit granting authority with information concerning the technical
specifications and design characteristics of a proposed wireless
telecommunications facility requiring a special permit provided that any
such request for or submission of technical specifications shall not
extend the authority of a municipality to regulate, restrict, limit or
interpret the technical and operational standards as applied by the
Federal Communications Commission to personal wireless services as such
term is defined in 47 U.S.C. §332(c)(7)(C)(i).
h. Multiple Applications. The provisions of section sixteen of this
chapter shall not apply to any application for special permit under this
section. In order to ensure efficient process for determining locations
for wireless telecommunications facilities, applications for more than
one location, whether for building permits in the case of minor wireless
telecommunications facilities or special permits in the case of major
wireless telecommunications facilities, may be submitted and outstanding
at any one time and shall be reviewed in accordance with the provisions
of this section.
i. Reaffirmation of Consistent Local Ordinances and Bylaws. Except to
the extent inconsistent with the provisions here in, any existing zoning
ordinances in a city or bylaws in a town with respect to such wireless
telecommunications facilities shall remain in effect and be enforced in
accordance with the provisions herein.
Section 4. No provisions of this act shall be construed either as
establishing or not establishing the jurisdiction of the department of
telecommunications and energy to grant petitions filed prior to October
1, 1999 for zoning exemptions under section 3 of chapter 40 A for land
or structures used or to be used by wireless telecommunications
carriers; provided, further, that no action may be brought to invalidate
any such exemption granted by said department prior to October 1, 1999.
Archive provided courtesy of WaveGuide, http://www.wave-guide.org
Reprinted with permission of Roy Beavers, http://www.emfguru.com