Town of Lynnfield, MA SECTION 7.0 Special Regulations

7.1 Earth Removal.

7.1.1. General. The removal, for sale or otherwise, from the Town, or from one lot to another in the Town, of sod, loam, clay, sand, gravel or quarried stone forming a part of the real estate in the Town, shall be permitted only if a special permit from the Board of Appeals is first obtained.

7.1.2. Exceptions. Removal when necessarily incidental to or in connection with the construction, at the site of removal, of a building for which a permit has been issued, or for grading or otherwise improving the premises of which such building is a part, is excepted from the requirements of this section.

7.1.3. Application. Any person desiring to obtain the permission of said Board for such purpose shall make written application therefor, and the said Board shall hold a public hearing thereon, of which public notice shall be given, and render a decision. The applicant shall show, to the satisfaction of said Board, that such use of the premises for which such application is made shall not constitute a nuisance because of noise, vibration, smoke, gas fumes, odor, dust or other objectionable features, shall not be hazardous because of fire or explosion, shall not adversely affect the economic status of the Town, shall not tend to impair the beauty of the Town or of the district most immediately affected, and shall not be dangerous to the public health.

7.1.4. Decision. When in the opinion of the Board, such a permit may be granted if accompanied by conditions especially designed to safeguard the district and the Town, including protection against permanent and temporary situations which may be left or arise after operations are completed or because of the methods of handling such material at the site, or transporting such material through the Town, it shall impose such conditions and make them a part of the permit.

7.2 Adult Uses.

7.2.1. General. This section regulates adult uses and adult entertainment facilities within the Town of Lynnfield.

7.2.2. Purpose and Intent. The purpose and intent of this section is to address and mitigate the secondary effects of the adult uses and businesses referenced herein. The provisions of this section are not intended to impose a limitation or restriction on the content of any communicative matter or materials, including sexually oriented matter or materials. Also, the provisions of this section are not intended to restrict or deny access by adults to adult uses and to sexually oriented matter or material protected by the Constitution of the United States of America and of the Commonwealth of Massachusetts, nor to restrict or deny rights that distributors or exhibitors of such matter or materials may have to sell, rent, distribute, or exhibit such matter or materials. Neither is it the purpose or intent of this section to legalize the sale, rental, distribution, or exhibition of obscene or other illegal matter or materials.

7.2.3. Definitions. See Definitions section, "Adult Uses," for applicable definitions.[1]

[1] Editor's Note: See Section 11.5.

7.2.4. Special Permit. No adult use shall be allowed except by a special permit granted by the Board of Appeals. Said Board may impose such conditions as it deems appropriate for the protection of public health, safety, and welfare in any district permitting such use. Said special permit shall only be issued following a public hearing held within 65 days after filing of an application with the Board of Appeals, a copy of which shall forthwith be given to the Town Clerk by the applicant. The Board of Appeals shall grant a special permit when the application meets the performance standards set forth in this section.

7.2.5. Location. An adult use may be located only within the Commercial District within the Town. An adult use may not be located within 400 feet of (a) a boundary line of a residential zoning district, (b) any other adult bookstore or adult motion picture theater, or (c) any establishment licensed under the provisions of Chapter 138, Section 12.[2]

[2] Editor's Note: See MGL c. 138, § 12.

7.2.6. Application. The application for a special permit for an adult use shall include the following information: name and address of the legal owner of the proposed establishment; name and address of all persons having a lawful ownership, equity or security interest in the proposed establishment; a sworn statement that neither the applicant, owner, nor any person having a lawful ownership, equity or security interest in the proposed establishment has been convicted of violating the provisions of Massachusetts General Laws Chapter 119, Section 63 or Chapter 272, Section 28; name and address of the manager of the proposed establishment; proposed provisions for security; number of employees; and proposed physical layout of the interior of the proposed establishment.

7.2.7. Signage. All signs must meet the requirements of the Sign Regulations section.[3] In addition, no advertisement, display or other promotional material which contains sexually explicit graphics or sexually explicit text shall be visible to the public from any public way including, but not limited to, sidewalks, pedestrian walkways or highways.

[3] Editor’s Note: See Section 6.2.

7.2.8. Zoning Bylaw Requirements. The proposed adult use shall comply with all other requirements of the bylaw for the district proposed for location of such adult use.

7.3 Marijuana.

7.3.1. General. This section applies to registered marijuana in dispensaries within the Town of Lynnfield including all like or related businesses and facilities.

7.3.2. Purpose and Intent. This section shall apply to all registered marijuana dispensaries and like or related operations in the Town as permitted under the laws of the Commonwealth of Massachusetts. The purpose of this section is to protect the health, safety, and welfare of the residents, businesses, and property owners in the Town. Further, the purpose of this section is to provide areas within the Town for the cultivation, production, and distribution of marijuana so that persons permitted to obtain, possess, and use marijuana for medical purposes may do so. Nothing in this section is intended to promote or condone the production, distribution, or possession of marijuana in violation of any applicable law.

7.3.3. Definitions. See Definitions section, "Medical Marijuana," for applicable definitions.[1]

[1] Editor's Note: See Section 11.5.

7.3.4. Location. A registered marijuana dispensary may be located only within the Commercial District by special permit from the Planning Board. A separate special permit shall be required for each premises from which a registered marijuana dispensary is operated. No two or more different registered marijuana dispensaries may be treated as one premises nor may they be co-located on a single premises.

1. A registered marijuana dispensary shall not be located within 1,000 yards of any school, church, licensed child care center, playground, place of worship, or any other registered marijuana dispensary.

2. No registered marijuana dispensary shall be located within the same premises as any medical doctor's office or the offices of any other professional practitioner authorized to prescribe the use of medical marijuana.

3. Any and all cultivation, production, storage, display, sales, or other distribution of marijuana shall be located so as to occur only within the restricted area of a registered marijuana dispensary and shall not be visible from the exterior of the business.

7.3.5. Signs. Any and all signs related to the registered marijuana dispensary must be located on the same building in which the registered marijuana dispensary is located and must comply with all sign regulations of the Town of Lynnfield. No sign, advertisement, display, or other promotional material which utilizes graphics related to marijuana or marijuana paraphernalia, or figures or symbols related to marijuana shall be visible to the public from any public way, including, but not limited to, sidewalks, pedestrian walkways, or highways.

7.3.6. Special Permit. No operation of a registered marijuana dispensary within the Town shall be allowed without a special permit granted by the Planning Board.

7.3.7. Approval Requirements.

1. The Planning Board may issue a special permit for a registered marijuana dispensary if the information available to the Planning Board verifies that the applicant has submitted a full and complete application, has planned improvements to the business location consistent with the application, is prepared to operate the business as set forth in the application and in accordance with Town bylaws and has submitted the required fees as required. The Planning Board shall deny any application for a special permit where the applicant does not meet the requirements of Town bylaws or any other applicable law, rule, or regulation or in the event that such application contains any false or incomplete information. The Planning Board may impose such conditions as it deems appropriate for the protection of public health, safety, and welfare in any district permitting such use. Said special permit shall only be issued following a public hearing within 65 days after the filing of an application and payment of the filing fees with the Planning Board; a copy of such application shall forthwith be given to the Town Clerk by the applicant.

2. A special permit for a registered marijuana dispensary is not transferable or assignable, including, without limitation, not transferable or assignable to a different premises, to a different type of business (including another RMD), or to a different owner or licensee. A registered marijuana dispensary special permit is valid only for the owner(s) named thereon, the type of business disclosed on the application for the license, and the location for which the license is issued.

7.3.8. Application. An application for a special permit for a registered marijuana dispensary shall be made to the Planning Board with an application fee of $1,500. The Board may provide forms to applicants for that purpose. The application shall provide such information relative to the public health, safety, and welfare as may be required by the Planning Board including, but not limited to, such matters as:

1. The identity of all investors, owners, officers, and employees of the applicant;

2. The applicant's past history and experience operating registered marijuana dispensaries, including history of license or permit denials;

3. A description of all products and services to be provided;

4. An operating plan and a site plan for the proposed facility, including building layout, lighting, and security;

5. A ventilation plan for the elimination of marijuana odors off premises;

6. A written plan for wastewater disposal accompanied by a site plan describing the treatment of wastewater so as to prevent environmental harm;

7. A plan for the storage and disposal of all toxic substances on the premises;

8. A plan for the exclusion of minors from the premises if unaccompanied by an adult;

9. A statement as to the amount of the projected daily average and peak electric load anticipated and certification by a qualified engineer that the premises are equipped to provide such electric loads;

10. A plan by a Registered Land Surveyor to show within a radius of 1,000 feet from the boundaries of the property upon which the registered marijuana dispensary is located, the proximity of the property to any school, church, licensed child care center, playground, place of worship, every other registered marijuana dispensary, every residential zone district, and other facility identified in the bylaw, or to a mixed-use development containing one or more residences;

11. A copy of the applicant's completed state RMD registration application in its entirety and a copy of the applicant's state RMD registration;

12. Proof of ownership or legal possession of the restricted area for a registered marijuana dispensary for the term of the proposed license. If the registered marijuana dispensary is not the owner of the premises of the business, the applicant shall provide, on a form approved by the Town, written authorization to the Town from the owner to enter the property for inspection of the premises.

7.3.9. Exclusions.

1. The permitting requirement set forth in the bylaw shall be in addition to, and not in lieu of, any other licensing and permitting requirements imposed by any other federal, state, or local law, including, by way of example, a retail sales and use tax license, a retail food establishment license, or any applicable zoning or building permit.

2. A special permit granted under the bylaw does not provide any exception, defense, or immunity from other laws. The issuance of any special permit pursuant to the bylaw does not create an exception, defense, or immunity to any person in regard to any potential criminal liability the person may have for the production, distribution, or possession of marijuana.

3. Compliance with the requirements of the bylaw shall not provide an exception, immunity, or defense to criminal prosecution under any applicable law, except for a violation of the bylaw.

7.3.10. Annual Renewal. A registered marijuana dispensary special permit shall be valid for one year. The special permit shall expire on the date stated on the license unless otherwise provided by the Planning Board. The Planning Board may extend the term of the license for no more than six months to facilitate the administration by the Planning Board of renewals and coordinate with the date for renewal of the state license of such licensee.

1. The special permit must be renewed annually by application on a form provided by the Planning Board requiring the special permit holder to confirm the status of information provided in its original application and all renewals thereof.

2. The application for renewal need not be considered unless the renewal application fee of $1,500 has been paid in full.

3. The licensee shall apply for renewal of the medical marijuana business license at least 90 days before the expiration of the license. The licensee shall apply for renewal using forms provided by the Planning Board.

4. In the event there has been a change to any information provided in the immediately prior application and if there has been any change to any of the plans identified in the license application which were submitted to and approved by the Planning Board with the application or an earlier renewal, the renewal application shall include specifics of such changes or proposed changes.

5. The renewal application shall include a copy of the applicant's current and valid state registration, a summary report for the previous 12 months showing the amount of marijuana purchased; the amount of marijuana sold; the forms in which marijuana was sold; the police report numbers or case numbers of all police calls to the RMD and its related facilities; and, for calls resulting in a charge of a violation of any law, the charge, case number, and disposition of any of the charges.

6. In the event there have been allegations of violations of the bylaw or any other law on the part of the special permit holder or the person submitting a renewal application, the Planning Board may hold a hearing prior to approving the renewal application. The hearing shall be to determine whether the application complies with the bylaw and whether the operation of the business has been in compliance with law. If the Planning Board does not hold a hearing and the application and the applicant(s) does not meet the requirements of all applicable rules, regulations, bylaws, and laws, or the business has been operated in the past in violation of any applicable rules, regulations, bylaws and laws, the renewal application may be denied or issued with conditions.

7.4 Siting of Radio Telecommunications Facilities.

7.4.1. Preface. Although not a regulating part of the section the preface serves to illustrate the limitations that the Town must operate under when reviewing an application. The Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (the "TCA") significantly limits the ability of state and local authority to apply zoning regulations to wireless telecommunications.

Under the TCA, the power of local governmental authorities to regulate the placement, construction and modification of personal wireless services is tempered by the proviso that such regulation shall neither discriminate among providers of personal wireless service nor prohibit, or have the effect of prohibiting, the provision of personal wireless service. For example, the denial of an individual permit could amount to a prohibition of service if the service could only be provided from a particular site.

The TCA does grant local authorities the first say in determining where and how to construct personal wireless services provided that said review is acted upon "within a reasonable period of time." [47 U.S.C. § 332(c)(7)(B)(ii)] However, if a local authority's actions violate the provisions of the TCA or if the local authority denies a request, the court has the authority to grant the wireless provider its original request. [47 U.S.C. § 332(c)(7)(B)(iii)]

The TCA closed the door on any radio frequency emissions arguments; no local government may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC regulations. [47 U.S.C. § 332(c)(7)(B)(iv)]

The Middle Class Tax Relief and Job Creation Act of 2012, Section 6409,[1] states that local government may not deny, and shall approve, any eligible facility's request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

[1] Editor's Note: See 47 U.S.C. § 1455.

7.4.2. Purpose and Scope of Authority. The purpose of this section is to establish general guidelines for the siting of radio telecommunication facilities (RTF). The goal of this section is:

1. To enable RTFs to benefit the people of Lynnfield.

2. To minimize the total number of RTF towers throughout the community.

3. To ensure that the benefits of RTFs outweigh potential detrimental impacts on the Town's scenic and historic assets, safety, health, environment, general welfare, values and quality of life.

4. To make all RTF locations available for local municipal agencies' use where feasible.

5. To encourage the location of personal wireless service facility (PWSF) towers on municipal, general business, commercial, or limited industrial zoned land.

6. To encourage owners of PWSF towers to locate them, to the extent possible, in areas where the adverse impacts on adjacent properties of the community is minimal.

7. 

To require, when technically possible, the co-location of new and existing PWSFs.

Pursuant to the purposes stated in this section, the Town will exercise its bylaw authority within the following scope:

1. To ensure that RTFs comply with local, state and federal regulations.

2. To ensure that the location, height and design of RTFs are subject to a public review process.

7.4.3. Definitions. See Definitions section, "Radio Telecommunication Facilities," for applicable definitions.[2]

[2] Editor's Note: See Section 11.5.

7.4.4. Special Permit Granting Authority. The special permit granting authority (SPGA) shall be the Zoning Board of Appeals.

7.4.5. Location. The siting of RTFs is applicable to all zoning districts throughout the Town.

7.4.6. Personal Wireless Service Facilities (PWSFs). A PWSF may be erected, installed or modified upon issuance of a special permit in compliance with the provisions of the bylaw, whether the PWSF is considered a principal use or an accessory use.

7.4.7. Exemptions.

1. A PWSF is exempt from the special permit requirement if it is an indoor RTF, including but not limited to Internet-connected "femtocells," distributed antenna systems, and bidirectional amplification systems.

2. An eligible facilities request for a modification is exempt; however, an updated site plan shall be required by the SPGA.

3. Antennas and directly related facilities used exclusively for communication for the purpose of federally licensed amateur radio operators shall be exempt.

7.4.8. PWSF Preference Installation Types. The following list of PWSF installation types is presented in order of preference, hence forming a hierarchy structure.

1. First Preference Type (highest). PWSFs located on existing conforming structures, as permitted in the underlying districts. Panels, antennas and associated equipment may be approved as accessory uses. The intent of the first preference type is to allow such facilities to be located in or on structures appropriately screened and/or camouflaged pursuant to this section. When possible the facility shall be mounted inside an existing structure, modification of a structure may be permitted. For example, but not limited to, a church steeple which is 20 feet in height then rises 50 feet as a thin spiral tube (antenna) would not be considered an acceptable permitted structure; it is an attempt to skirt around the section.

2. Second Preference Type. The following PWSF installation types are of equal preference to one another, and collectively are subordinate to the first preference:

a. Collocation. A PWSF may employ site-sharing with an existing PWSF or collocate on an existing structure, to the extent that such is found by the SPGA to be consistent with the purposes and standards established in the bylaw.

b. Existing Utility Infrastructure. A PWSF may collocate on existing utility infrastructure such as transmission lines, utility poles or streetlights using unobtrusive architectures such as distributed antenna systems (DAS). With respect to the use of utility poles, collocation on existing utility poles (and replacements thereof) is preferred above the installation of new utility poles in public ways. In neighborhoods with underground utilities, pole-mounted PWSF on existing utility infrastructure are discouraged in favor of less visually obtrusive alternatives, such as placing a small antenna installation on existing utility poles on a nearby street.

c. Other Implementations. A PWSF may be located using innovative alternatives that are in keeping with the purpose and intent of the bylaw provided the SPGA determines that such is an acceptable second preference and does not rise to a third preference.

3. Third Preference typE: Antenna Tower. A PWSF which requires the construction of a new antenna tower is least on the order of preference. When nothing else meets the needs specified by the Telecommunications Act of 1996,[3] only free-standing monopoles, with associated antennas and/or panels, shall be allowed as specified below. Lattice style towers and similar facilities requiring three or more legs and/or guy wires for support are not allowed.

[3] Editor's Note: See 47 U.S.C. § 251 et seq.

4. Waiver of Preferences. The SPGA may waive the preference orders designated for siting and types of PWSFs pursuant to other implementations upon a written finding that the siting at a location of lesser preference, or the installation of a PWSF type of lesser preference, would achieve a similar coverage result consistent with the purposes of this section.

7.4.9. General Requirements.

1. PWSFs shall only be employed for the purpose of delivering PWS to subscriber devices or supporting public safety communications, and shall not be used for storage, office, manufacturing, repair, or other activities, unless separately permitted in the underlying district.

2. PWSFs which include, but are not limited to, monopoles, satellite dishes over three feet in diameter or antenna, shall only be erected or installed if in compliance with the provisions as set forth herein.

3. Whenever possible, PWSFs shall be located in nonresidential zoning districts and shall be suitably screened from abutting and residential neighborhoods.

4. Any proposed construction of a replacement PWSF facility that substantially changes the physical dimensions, such as but not limited to an extension in the height, shall be subject to a new application for a permit.

5. An undertaking shall be required, secured by a bond appropriate in form and amount for removal of the PWSF within six months of cessation of operation of said facility or such other activity which may be appropriate to prevent the structures from becoming a nuisance or aesthetic blight.

7.4.10. Demonstration of Need. Needs are relative to the Town of Lynnfield's geographic area and 0.25 mile outside the Town limits ("coverage area").

7.4.11. Need for Service. The applicant must demonstrate the service objectives in Lynnfield that the proposed PWSF will address in whole or in part. Such demonstration shall include:

1. Written evidence including technical documentation demonstrating that there is a substantial deficiency in the applicant's provision of service to Lynnfield (a coverage gap);

2. Detailed information about all existing and pending PWSFs and their associated coverage maps;

3. Information about terrain, vegetation and land use within the proposed coverage area that results in the deficiency;

4. Network performance factors; and

5. Other information relevant to the applicant's service objectives, or as may be required by the SPGA.

7.4.12. Need for Location. The applicant must provide substantial written evidence including documentation showing how the improved service could not be substantially provided by utilizing one or more locations of higher preference as described in the section "PWSF Preference Installation Types"[4] or, alternatively, as described in the section "PWSF Installation Types - Waiver of Preferences."[5]

[4] Editor's Note: See Section 7.4.8.

[5] Editor's Note: See Section 7.4.8, Subsection 4.

7.4.13. Third Preference Type. For a third preference type, the following information shall be prepared by one or more professional engineers for the coverage area.

1. Describe the capacity of the facility, the number and type of panels, antennas and/or transmitters/receivers that it can accommodate and the basis for these calculations. The applicant shall provide information concerning the foreseeable industry growth needs for the facility's use for the succeeding 10 years.

2. Demonstrate that no existing facility can accommodate the applicant's proposed facility. Evidence submitted to demonstrate such shall consist of the following:

a. No existing facility is located within the coverage area which can meet the applicant's engineering requirements.

b. Existing facilities are not of sufficient height to meet the applicant's engineering requirements.

c. Existing facilities do not have sufficient structural strength to support the applicant's proposed antenna and related equipment.

d. Fees, costs, or contractual provisions required by an owner in order to share an existing facility or to adapt an existing facility for sharing are determined to be unreasonable. The total cost to construct a new independent facility which meets the requirements of the section is presumed to be unreasonable.

e. Other limiting factors that render existing facilities unsuitable.

f. Provide an alternative analysis that considers the tradeoffs between preference types, location, height, capacity, number, separations, and economic factors of the proposed facility.

g. Provide an inventory of existing facilities that are within the coverage area. Said inventory shall include information about the location, height, design, and capacity of each facility.

h. Co-location PWSFs shall be designed to accommodate the maximum number of providers technologically practical and such maximum number specified. The intent of the requirement is to reduce the number of antennas which will be required to be located within the coverage area.

7.4.14. Availability of Alternatives. The SPGA may require the applicant to consider specific potential alternatives at any level of the hierarchy in the section "PWSF Preference Installation Types"[6] if the SPGA determines that such locations may better achieve the purposes established in the bylaw.

[6] Editor's Note: See Section 7.4.8.

7.4.15. Height and Setbacks; PWSF Nonresidential. Height of an antenna tower and antenna shall be measured from ground level at the base of that item regardless of location of base. PWSFs in PWSF nonresidential locations may exceed the height limit of the underlying district, whether attached to existing structures or mounted on new antenna towers, subject to the following criteria:

1. Height. New antenna towers in PWSF nonresidential locations are limited to the minimum height necessary to accommodate the anticipated and future use but in no case above 100 feet in height.

2. Subject to the following findings, and such findings as required for issuance of a waiver pursuant to the section "PWSF Preference Installation Types - Waiver of Preferences,"[7] the SPGA may approve a PWSF antenna tower at a height up to 150 feet upon a written finding that:

a. Such greater height is more consistent with the purposes established by the bylaw than a lesser height;

b. The PWSF antenna tower is at least 1.5 times its height from the nearest residential property line;

c. The PWSF antenna tower is at least 1.0 times its height from the property line of the parcel it resides upon; and

d. The PWSF is screened from view to residential buildings, public or private ways, and public or private conservation land by existing terrain, vegetation, camouflage and/or development.

[7] Editor's Note: See Section 7.4.8, Subsection 4.

3. Setbacks. PWSFs must satisfy the property line setbacks of the underlying district.

a. PWSF antenna towers that are greater than the height limit of the underlying district shall be set back from all parcels in residential districts by a minimum of 1.5 times the height, including appurtenances.

b. On existing structures, PWSF antenna towers that are greater than 15 feet above the height of the structure shall be set back from all parcels in residential districts by a factor of 1.5 times the height, including appurtenances.

7.4.16. Height and Setbacks; PWSF Residential. PWSFs in PWSF residential locations may exceed the height limit of the underlying district, whether attached to existing structures or mounted on new antenna towers, subject to the following criteria:

1. Height. New antenna towers in PWSF residential locations are limited to: 60 feet above ground in areas where there is no significant tree cover; or 10 feet above the average existing tree cover within a 150 foot radius; or such lesser height that the SPGA finds is appropriate for the site of the PWSF based on the purposes and standards established in this section.

2. Subject to the following findings, and such findings as required for issuance of a waiver pursuant to the section "PWSF Preference Installation Types - Waiver of Preferences,"[8] the SPGA may approve a PWSF antenna tower at a height of between 60 feet and 150 feet upon a finding that: the location of the antenna tower is visually remote from surrounding residential uses; and such height increase is consistent with the purposes and standards established in this section.

[8] Editor's Note: See Section 7.4.8, Subsection 4.

3. Setbacks. PWSFs must satisfy the property line setbacks of the underlying district.

a. PWSF antenna towers that are greater than the height limit of the underlying district shall be set back from all parcels in residential districts by a factor of 1.5 times the height above ground of the antenna tower, including appurtenances.

b. On existing structures, PWSF antenna towers that are greater than 12 feet above the height of the structure shall be set back from all parcels in residential districts by a factor of 1.5 times the height above ground of the tower, including appurtenances.

7.4.17. Additional Required Setbacks. In all districts, PWSFs shall be placed no closer than three times the height of the antenna tower to an existing dwelling, school, child care facility, nursing or convalescent home, or an assisted living facility.

7.4.18. Additional Requirements. When reviewing the construction, erection, installation and/or placement of a PWSF the SPGA shall also be based upon the following visual guidelines.

1. Concealment. To the maximum extent practicable, PWSFs shall conceal equipment, cables, and antennas within architectural surfaces that are ordinary and consistent with the context of the PWSFs' Lynnfield environs, such as steeples, concealed-antenna monopoles, flagpoles, smokestacks, faux chimneys and cupolas.

2. Screening, Camouflage and Landscaping. Wherever possible, PWSFs shall be sited so as to minimize the visibility of such devices from adjacent property and shall be screened from abutters in residential neighborhoods. Where elements of a PWSF will be visible to residential parcels and public or private ways, PWSFs shall employ screening and/or camouflage methods that are consistent with the context of the surrounding area such as fencing, vegetation, and paint color or patterns to match underlying surfaces in order to mitigate any undesirable visual bulk and distraction. Installation of free-standing PWSFs shall minimize the removal of trees and other existing vegetation.

3. Scale. The visual characteristics of a PWSF shall be minimized with respect to scale, such as a dominant or looming visual experience, disproportion to the site and its surroundings, or undesirable shadowing impacts.

4. Color. Free-standing, wall mounted and roof-mounted devices may be required to be painted or otherwise colored or finished in a manner which aesthetically minimizes the visual bulk of the devices to the surrounding landscape or on the building or structure to which they are attached.

5. Signs. There shall be no advertising permitted on or in the vicinity of PWSFs. There shall only be a sign not exceeding four square feet in area at each PWSF which shall display a phone number where the person responsible for the maintenance of the PWSF may be reached on a twenty-four-hour basis.

6. Lighting. Night lighting of towers shall be prohibited unless required by the Federal Aviation Administration or other state or federal agencies having jurisdiction of the same. Outdoor lighting of PWSFs shall be limited to that which is necessary for security and temporary maintenance at the discretion of the SPGA.

7. Maintenance. The visual characteristics of a PWSF shall be maintained, repaired and replaced as necessary and as an ongoing condition of compliance to retain the characteristics approved by issuance of a special permit.

8. Parking. There shall be a minimum of one parking space for each facility, to be used in connection with the maintenance of the site, and not to be used for the permanent storage of vehicles or other equipment.

9. Prohibitions. The following are specifically prohibited:

a. Lattice style antenna towers and facilities requiring three or more legs and/or guy wires for support; and

b. Fences utilizing razor wire or barbed wire or similar wire types.

7.4.19. Special Permits Criteria. In addition to the standards of this section the SPGA shall review the special permit application for compliance with the Zoning Bylaw section "Site Plan Approval"[9] which is part of the required application material.

[9] Editor's Note: See Section 10.6.

7.4.20. Application Procedures. The application phase of the process begins with the receipt by the SPGA of a complete application including all material required by this section and any applicable regulations. The application procedures for a special permit or for those only requiring a site plan shall follow the procedures as specified in MGL c. 40A, § 9.

1. Within 30 days of receipt, the SPGA or its designee shall review the application for consistency and completeness with respect to the application requirements in the bylaw and any applicable regulations and shall notify the applicant in writing of any deficiency in the completeness of the application.

2. The SPGA shall take regulatory notice of the Federal Communications Commission (FCC) presumption that the final action of the SPGA on a new antenna tower should take no more than 150 days from the date of receipt of the completed application, and that final action on a collocation or site-sharing application should take no more than 90 days from the date of receipt of the completed application except upon written extension of these timelines by mutual agreement between the SPGA and the applicant.

7.4.21. Modification to Existing PWSF. A modification of an existing special permit and/or a new special permit is required for any change in the facility that would be visible from an adjacent property boundary, including but not limited to an increase in height, bulk, surface area presented to one or more viewpoints, size or quantity of any exterior elements of an individually permitted PWSF, including without limitation, additions or changes to outdoor equipment or antennas. Said modifications are exclusive of those classified under an eligible facilities request.

7.4.22. Site Plan Review. Nothing in this section is intended to exempt a PWSF from the requirement to receive site plan approval as described elsewhere in the bylaw.

7.4.23. Consultant Review. When considering an application, new or modification, for a PWSF, the SPGA may determine the need for the assistance of a consultant expert in matters involving the placement (which includes coverage area), construction, and/or modification of PWSFs to review applicants' compliance with all requirements of the Zoning Bylaw and the Telecommunications Act of 1996,[10] at the applicant's expense pursuant to MGL c. 44, § 53G. To make the most productive use of the limited time authorized by the FCC to hear the application, the SPGA may at its discretion engage a consultant immediately upon receipt of an application.

[10] Editor’s Note: See 47 U.S.C. § 251 et seq.

7.4.24. Decision. The decision along with the applicable site plan shall be in writing and dated. A copy of all material shall also be filed with the Zoning Enforcement Officer. To approve a special permit for a PWSF, the SPGA must make the following findings: (Note; some findings may require certification by an appropriate engineer with verification from the SPGA consultant.)

1. That the applicant or co-applicant has:

a. Demonstrated that it has sufficient leasehold or other legal interest in the proposed site to construct the PWSF;

b. Provided a written assent to the Town that the applicant will allow site-sharing, to the extent reasonably practicable in a nondiscriminatory manner.

2. That the proposed PWSF (with conditions, if applicable):

a. Is compatible with Lynnfield's character and is designed and screened in a manner that is sensitive to the surrounding neighborhood as well as the community at large;

b. Protects adjacent properties from unreasonable risks of PWSFs, to the extent permitted by law, including without limitation excessive noise levels, falling objects, fuel spills, and attractive nuisance;

c. If the proposed PWSF will site-share with an existing PWSF(s), that such site-sharing is found by the SPGA to be consistent with the purposes established in this section;

d. Conforms with the PWSF location and PWSF installation preferences of the section "PWSF Preference Installation Types"[11] to conform with the purposes established in this section;

[11] Editor's Note: See Section 7.4.8.

e. If proposed as a new antenna tower, the applicant has documented that no combination of one or more alternative collocations and/or site-sharing can substantially satisfy the applicant's coverage objectives; and present a substantially less detrimental impact on Lynnfield; and documented that a higher preference type cannot satisfy the applicant's coverage;

f. Satisfies the purposes established by the Zoning Bylaw and, without limitation, the specific requirements and guidelines established in the bylaw; and

g. If applicable, that: existing vegetation will be preserved or improved, and disturbance of the existing topography has been minimized; or proposed manipulation of vegetation and disturbance of topography results in a lesser visual impact.

7.4.25. Form of Decision. The SPGA may approve, approve with conditions, or deny an application. The decision of the SPGA shall be timely, in writing, and based upon substantial evidence in the written record.

7.4.26. Approval. Any approved special permit shall authorize specific PWS providers and specific wireless services to be operated by the applicant(s) at the antenna height(s) or positions specified in the application or approval document.

7.4.27. Approval with Conditions. The SPGA may impose conditions as deemed necessary to protect the interests of the neighborhood in which a PWSF is located.

1. Every permit shall be conditioned upon a requirement that the PWSF owner shall make available to a number of other telecommunications companies use of the facility equal to the number determined to be the maximum number technologically practical under the section "Colocation"[12] on commercially reasonable rates and terms, which take into consideration the cost of the facility. The proposed rates and terms shall show plainly all requisite detail fully to explain the basis of such charges and terms; in the event of disagreement between the permit holder and the proposed lessee, the matter shall be submitted for resolution to the Massachusetts Department of Energy and Telecommunications ("DTE") pursuant to 220 CMR 5.00, as amended, and any other applicable law, and compliance with the decision of the DTE shall be compliance with this provision of the bylaw.

[12] Editor's Note: See Section 7.4.8, Subsection 2.a.

2. For any condition that the SPGA establishes with reporting or monitoring requirements, including without limitation noise or radio frequency emissions, the SPGA shall seek the advice of an expert in the relevant field pursuant to the section "Consultant Review"[13] to identify the least burdensome protocol that is consistent with a legitimate public purpose identified by the SPGA.

[13] Editor's Note: See Section 7.4.23.

7.4.28. Denial. Any denial shall be in writing and supported by substantial evidence. A denial if the petitioner does not fulfill or address the requirements of these regulations to the satisfaction of the Board may also be cause.

7.4.29. Waivers. The SPGA may at its discretion authorize waivers in the special permit approval with respect to the order of preference types and any dimensional or other requirements of the section "Height and Setbacks"[14] upon a written finding that such waiver will achieve better results consistent with the purposes and standards established in the section "Personal Wireless Service Facilities (PWSFs)."[15]

[14] Editor's Note: See Sections 7.4.15 and 7.4.16.

[15] Editor's Note: See Section 7.4.6.

7.4.30. Lapse. The special permit shall lapse within two years unless substantial use or construction has commenced as specified in MGL c. 40A, § 9.

7.4.31. Removal of Abandoned Antenna Towers and PWSFs. Any PWSF antenna tower, PWSF communications device, or PWSF that is not operated for a continuous period of six months shall be considered abandoned.

1. The owner of said antenna tower, communications device, or PWSF shall remove same within 90 days of receipt of notice from the Town notifying the owner of such abandonment. If such antenna tower, communications device, or PWSF is not removed within said 90 days, the Town may cause such to be removed at the joint and several expense of the said owner and the owner of the lot on which such structure is located.

2. For a site with two or more users said removal is limited to the users that are considered abandoned. Additionally for these multi-user sites the height may be reduced to that required by the remaining user(s). If the permit holder for the tower ceases operation, the remaining users may be required to apply for a new special permit.