When you do things by the books, there’s the chance of denial.… This is so true that a local attorney literally wrote a book on it, “Antenna Zoning for the Radio Amateur: Everything you and your attorney need to know to obtain a permit for your antenna-support system.”
In October of 2019, Prospect Street resident and licensed ham radio operator Mikhail Filippov [Callsign: KD1MF], wanted the build a 80 foot HAM radio Tower within 20 feet of his property’s edge. He filed a building permit and it was approved.
A neighbor found out about this approved permit, by chance, he writes,
“On October 13th the homeowner at 273 Prospect Street and his brother came to my home and asked permission to use my driveway to pour concrete. Two truckloads were required. They planned to cut a hole in the fence between my property and 273 Prospect Street and run the discharge chute across my property in order to pour concrete for their foundation. When I questioned this, Mr. Filippov’s brother, he said we are both ham operators and were are going to have an 8O-foot ham radio tower with antenna. I expressed obvious concerns since it would be in the direct line of vision from all portions of my yard and is steps away from my property, to which he responded we already have the permit. lf not for the homeowners wanting to use my property to build their massive and invasive 80 Foot tower with antenna, neither I nor any affected property owner would have known the City had approved the permit.“…
…“I am appalled and quite frankly angry that I and my neighbors have been placed in this position Before last month, it never would have entered my mind that the City would approve a construction project this massive that places homeowners, their property, and others at physical risk, and certainly not without our being contacted. I am a retired mechanical engineer and Registered Professional Engineer in Massachusetts. I have seen how engineered projects and mechanical structures can fail, weaken
over time, and if located outdoors are susceptible to the elements. Simply put, would you or your family feel safe living under an 80-Foot steel tower and antenna? To say nothing of the degradation to the home and property you have worked so hard to improve and preserve over the years.”
On October 23rd, a group of neighbors filed a petition with
the City Clerk seeking to have the Board of Appeals overturn the building permit. This petition effectively stopped work on the project and required a Zoning Board of Appeals (ZBA) hearing before construction would be allowed to resume.
With the (ZBA) application, notice is required to be sent out to all abutters, and so it was. Many of the abutters showed up and convinced the zoning board that the tower would be an eyesore, a potential safety issue, and may bring property values down.
Hopengarten, the attorney for the Filippov, who wrote the book detailed above suggested that the city had no power to prevent the erecting a radio tower in his yard because of federal laws and a Massachusetts law called the Dover Amendment, which is referenced in Framingham’s zoning bylaws and states that no zoning ordinance or bylaw can prohibit the construction of a radio tower for a federally licensed amateur radio operator.
The Dover Amendment does allow cities and towns to “reasonably regulate the location and height of such antenna structures for the purposes of health, safety, or aesthetics,” as long as the regulations imposed allow the antenna to be high enough that it works.
That said, the city does have a role in permitting the height and location of said radio towers, if their requirements do not affect the effectiveness of the tower in its purpose.
ZBA member Ted Cosgrove said setback rules requiring the tower to be set back from neighbors’ lots by 20 feet plus the height of the tower – which in this case would be 100 feet – are “exactly consistent with both the federal and state controlling law and is the type of reasonable and rational regulation for the aspects of the tower we have jurisdiction (over), both safety and aesthetics.”
“To imagine that neighbors could erect a structure that might, upon collapse, cause them or their property harm is unacceptable,” Cosgrove said. “That people feel safe within their home and on their own property is fundamental to maintaining a private property interest and exactly the type of concern our board has jurisdiction (over).”
On December 3rd, 2019 the building department reviewing the permit again, they learned that because the property was owned by the trust, that applicant was not the rightful owner of the house, and a stop-work order was issued. Filippov, immediately worked to correct this mistake, and the stop work order had been rescinded on December 4th.
Finding defeat at every corner, resident, Filippov, vowed to continue fighting, and on Janurary 8, 2020, the Zoning Board of Appeals finally ended it all with a decision to vacate the building permit because the tower did not comply with local setback rules, in this case 100 ft (20 ft + 80 ft tower height).
Filippov and attorney Hopengarden are looking at next steps.
In the above example, that took place on a 1.2+ acre lot, below the lot size is about a third the size, weighing in at 0.373 acres.
Then there’s the build first and hope nobody finds out approach… In this case, it worked until your plan to build non-conforming steps fail the setback litmus test.
On December 16th, 2020 an application for a hearing was submitted to the ZBA for a variance to allow a 4’x12′ deck to be added to the second floor, with stairs going down into a fenced in area. The rationale given by the applicant, James Redfield, this project will allow the applicants wife to let her pets out as a medical condition makes stairs difficult.
Interestingly, the applicant is not the building owner. The applicant, James Redfield, is a renter in a multifamily apartment owned by Curt Kingsbury who lives on the Cape. Redfield holds a Construction Supervisors License and is trained and can complete the work himself.
The need for a ZBA variance was required because of the denied building permit application dated August 26, 2020.
On August 26th, 2020, an application to the building department was denied, we believe on the grounds of two things… 1) that the “install radio tower” portion of the project had already been completed unpermitted, and 2) because a deck and stairs to be built off the side of the second floor of the house were within the setback distance from the edge of the property, necessitating further review.
Upon review, this application was denied by the building department. The area blacked out, you can still see a note of intent to build a radio tower. We are unsure on why the info regarding the radio tower was blacked out. Because of this blacking out, we have filed a FOIA to the building department.
A schematic dated October 22, 2020 shows the proposed radio tower, which was blacked out in in the denied building permit of August 26, 2020.
Note the proposed 5’x5′ tower footing is on the back side of the garage. In the photo below, taken recently, you will notice a radio tower on site, not where proposed, but between the garage, and the fence, additionally you might notice that it appears that construction is already started on the building permit that was denied.
The distance between the property line and the edge of the garage is 14.5′. The town setback rules require all structures to be at least 10 feet from the property line, and from what we learned in the prior case above that towers require setbacks of the required setback plus the height of the tower.
Assuming that the tower is smack up to the edge of the garage, the rules would limit the tower height to no more than 4.5 feet. This tower however looks to be more than two stories tall, thereby in violation of the city’s setback laws.
Only haphazardly, because this application went to the ZBA and abutters were notified. This takes us back to the blacked out area on the denied building permit dated August 26th. That denied permit application was numbered #201624. In the image here, find the same building permit number #201624 issued on August 28, 2020, stating “install amateur radio tower”.
One abutter, upset by the proposed stair construction only feet from her bedroom window, also made mention of the tower… she wrote,
“Finally, in reviewing the plans, we also noticed a description of a proposed 5×5 foot tower foundation on the property but no tower height details. In a blackened out section of the original building permit request, this structure was identified as an amateur radio tower. Is this construction still in consideration? If so, we would oppose a tower being constructed on the property. Of note, a tall antenna was assembled and mounted on the property last winter.“
We suspect that the denied application, had the radio tower portion stripped from it because some nitwit in the building office suggested that that portion was approvable.
If there is still a plan to build a tower in the area where the 5’x5′ pad is proposed on the October 22, 2020 schematic, it too needs to be denied as well especially when the size of the tower is unknown. Based on what we know, the proposed 5’x5′ pad is approximately 40′ from the lot line. Based on the rule we know, the tower would be limited in height to 30′ in that location on the property.
Perhaps there is no need for the proposed tower, now that one was secretly erected.
What we know from the neighbor voicing her concern, was that the tower currently on site, has been on site for over a year now.
The tower in our opinion was built within the setback. If it falls, there is risk to the property of neighbors, to their home, and to their property.
We are calling on the Building Department to investigate if this tower was built out of setback compliance, and order the tower owner to remove it and re-apply for its construction in a manner consistent with zoning laws.
Why does this matter, it matters because it seems that the building department is allowing flagrant disregard for laws that protect neighbors and the value of their property go by the wayside. Would you like your neighbor putting a tower like this on the other side of your fence?
This matter will go before the ZBA on Wednesday January 13th 2021. We have reached out to interested parties on this article and welcoming their response.