Folks: here is a memo written by Tom Carrigan, WA1NVS, an ARRL Volunteer Counsel and the author of H-2782 (now “Chapter 225 of the Acts of 1995,” amending Massachusetts General Laws Chapter 40A, section 3.)
For more specific information, contact a lawyer familiar with zoning law in your vicinity. The ARRL can direct you to a lawyer or Volunteer Counsel in your area, who in turn might be able to give you more formal legal advice.
Thomas C. Carrigan
Attorney at Law
5 State Street (Suite 1F)
Worcester, Massachusetts 01609-2858
November 28, 1995
The following is a summary of the anticipated effect of Chapter 225 of the Acts of 1995 [of the Massachusetts Legislature], formerly known as House Bill 2782 (H-2782) entitled “An Act Relative to Local By-laws and Ordinances Regulating Antenna Structures used by Federally Licensed Amateur Radio Operators,” and commonly called the Ham Radio Tower Bill.
WARNING: THIS SUMMARY IS NOT LEGAL ADVICE AND IS NOT A SUBSTITUTE FOR COMPETENT LEGAL COUNSEL AS TO ANY PARTICULAR SITUATION. NOR IS THIS SUMMARY OF THIS ONE ACT A COMPREHENSIVE ANALYSIS OF THE LAW. THERE MAY BE LEGAL RESTRICTIONS OTHER THAT THOSE DEALT WITH BY THIS ACT WHICH SIGNIFICANTLY AFFECT A PERSON’S RIGHTS AND OBLIGATIONS WITH RESPECT TO TOWER CONSTRUCTION AND LOCATION. ADDITIONALLY, THIS ACT HAS NOT BEEN REVIEWED BY ANY COURT AS TO ITS VALIDITY, INTERPRETATION, OR APPLICATION TO SPECIFIC CIRCUMSTANCES. THEREFORE, THIS SUMMARY SHOULD BE READ AS ONE LAWYER’S OPINION ABOUT WHAT THE ACT MEANS.
The Act, now a state law, which becomes effective 90 days after it was signed (i.e. 90 days after November 23, 1995), provides the following:
“No zoning ordinances or by-law shall prohibit the construction or use of an antenna structure by a federally licensed amateur radio operator. Zoning ordinances and by-laws may reasonable regulate the location and height of such antenna structures for the purposes of health, safety, or aesthetics; provided, however, that such ordinances and by-laws, reasonably allow for sufficient height of such antenna structures so as to effectively accommodate amateur radio communications by federally licensed amateur radio operators and constitute the minimum practicable regulation necessary to accomplish the legitimate purposes of the city or town enacting such ordinance or by-law.
“Nothing in this act shall be construed as limiting the authority of any architectural or historic district commission established pursuant to any general or special law.”
The Act was intended to resolve confusion which exists between amateur radio operators and code enforcement officers by establishing a single standard for the regulation of Amateur Radio antenna structures. By incorporating the substance of the federal law, which does not come readily to the attention of the local code enforcement officers, into the state Zoning Law (General Laws chapter 40A), it is hoped that Amateur Radio operators and code enforcement officials can begin “reading off the same page” with respect to the application of zoning by-laws and ordinances to Amateur Radio antenna structures
The Act mirrors provisions already in the federal law (at 47 CFR 97.15(e)). See PRB-1. It does not create any new rights for amateurs, nor any new (substantial) restrictions on local officials, since, in my opinion, they were already subject to the federal law. The problem was that the federal law did not come to the attention of local officials. Frequently, when the federal law was pointed out to them, the local officials still were unsure of its relevance to them. Local officials should have no question about the applicability of the state zoning law. Most of them are quite familiar with its provisions as they deal with it routinely.
Presumably, now that local officials and Amateur Radio operators seeking to erect towers can agree on what the law says, what exactly does it mean? This is what I think Chapter 225 of the Acts of 1995 says:
1) A city or town may not lawfully enact or enforce a zoning ordinance or by-law which prohibits the construction or use of an antenna structure by a federally licensed Amateur Radio operator. Thus, a city or town probably cannot prohibit Amateur Radio towers by adopting a “no towers here”-type ordinance or by-law.
2) While zoning ordinances and by-laws MAY restrict the height and location of antenna structures, the cities and towns enacting the ordinances and by-laws must do the following:
a) base their restrictions on health, safety or aesthetic (appearance) criteria,
b) reasonably allow sufficient height of such antenna structures so as to effectively accommodate Amateur Radio communications, and
c) make the restrictions in such a way as to constitute the minimum practicable regulation which will accomplish the legitimate [health, safety or aesthetic] purposes of the city or town.
The Act limits only ZONING ordinances and by-laws. It does not affect building codes, electrical codes, fire codes, health codes or the like, which may be in effect. It also does not affect restrictive covenants (i.e. restrictions upon the possible uses of land, mandated by previous owners of the land). It specifically does not affect restrictions adopted by architectural or historic district commissions.
The Act does not eliminate the requirement of obtaining a building permit before erecting an “antenna mast” (in the words of the state building code), or other structure.
The Act is not a “carte blanche” to put up whatever antenna structure one wants, simply because he or she is a federally licensed amateur radio operator. It should, however, overcome some of the seemingly arbitrary height limitations, contained in most zoning ordinances and by-laws, which have been so frustrating to so many hams. It may, also, have some application in overcoming other restrictions.
The Act applies only to antenna structures used by federally licensed Amateur Radio operators.
de Tom Carrigan / WA1NVS