Gentlemen:
As soon as we consider the question of a support structure's
"fall zone," the real questions are: "What are you afraid of? What is
your concern?"
The likelihood that a neighbor's child will be hit by a falling
tower is so low that homeowners insurance companies do not require an
extra premium to guard against this potential loss. No rider is
necessary. Consider this: If we have hurricane force winds, what, in
heaven's name, are the children doing outdoors? An antenna support
structure built to code is MUCH less likely to topple than any of your
backyard trees, and we put no controls on where one may plant a tree.
I suggest that engineering concerns about the radius within which
a tower may fall are important, extremely important. But when a town is
considering a zoning bylaw, the fall radius should not be controlling.
Fall radius is a question of safety. Safety is, and should be,
controlled by the building code and the Building Inspector, in his or her
good judgment. For example, we do not forbid flagpoles on the town green
because of safety concerns. Nor do we forbid passengers on sailboats
because the mast could fall and strike any part of the boat. Conclusion:
Safety is important, but it is a construction issue, not a zoning matter.
Don't be tricked into thinking that a Town takes on liability when a
building inspector signs a building permit. The signature says only that
the construction meets code.
Zoning, for purposes of a bylaw controlling amateur radio antenna
support structures, is a matter of aesthetics. This is a matter upon
which men and women of good will may differ, but consider the following
excerpt from my forthcoming book, and never tire of asking: "Is what you
propose the minimum practicable regulation?" (Federal law requires that
whatever bylaw is proposed, it MUST be the minimum practicable
regulation).
Setback
Are the setback limitations arbitrary and self-defeating? As an example,
despite a concern for safety, no one can justify an extra 6 inches of
setback for one foot of height limitation (a ratio of 1.5:1). Towers
donâ??t jump if they fall.
A restriction of one foot for each foot of height above a house bracket
or a set of guy wires or 36 feet, comes closer to being reasonable,
though it may lead to results even planners will concede are bad. See
below for the discussion of narrow lots backing up to a forest. To give
you an example, if the restriction was 1:1 above 36 feet, hereâ??s a table
of what that would mean:
Table 1
1:1 Setback Above 36 Feet
Distance from Structure Maximum Tower Height
to Lot Line
(Feet) (Feet)
20 56
30 66
40 76
50 86
60 96
70
106
80
116
So if someone insists on inserting a 1:1 setback ratio, you might choose
to agree to it (but see below for exceptions), provided that the counting
begins at a reasonable height in feet (such as 36 feet), the roofline,
the house bracket or the first (second? uppermost?) guy point. Remember
the negotiating concept that you can always accept the other sideâ??s
price, if you get to set the definitions, terms and conditions.
By the way, keep your eyes open. A common tactic is to permit Amateur
Radio antenna systems in the ordinance, but require that the filing be
equivalent to what would be required of the construction of a new Empire
State Building (surveys, seals, traffic studies and so forthâ??all of which
is blatantly designed to run up the cost of the applicant without serving
any reasonable purpose).
Ask out loud why such impediments should apply to Amateur Radio
structures when they do not apply to church construction, flagpoles,
baseball backstops or an antenna-support structure out in back of a local
garage so that the towing company can talk to its tow trucks? When people
who are against the creation of emergency-communications capability seek
to hobble the ordinance, stand up and shout these words: â??minimum
practicable regulation.â?? After all, that is not just a suggestion, it is
a requirement of the Federal regulation.
If youâ??d like to make someone uncomfortable in a public forum, ask this
question: â??Could you please explain how your proposed burden on the
applicant promotes accommodation and meets the Federal lawâ??s requirement
to represents â??minimum practicable regulation?â??â?? As your opponent
mumbles, split the question apart and ask it again. Does this really
promote accommodation? Is this really the minimum? Then start suggesting
alternatives that are even more minimal than those already â??on the
table.â?? For example, if the proposed ordinance has a 1:1 setback:
1. Make the point that the best place to â??hideâ?? an antenna system may
well be in the back corner, out â??in the woods.â??
2. Make the point that experience shows these structures donâ??t fall the
length of their height, and propose that the setback begin at 50 feet
(see discussion elsewhere in this chapter), and/or
3. Redefine the setback for this purpose so that it is not to the
property line, but to the nearest existing inhabited building. Be sure to
try for all three tests: â??existing,â?? â??inhabited,â?? and â??building.â??
The
building should be an existing building, so that a spiteful neighbor
cannot later erect a tool shed, and thereby require the removal of the
antenna system. It should be inhabited, to prevent an existing tool shed
from holding up an otherwise worthy project just to theoretically protect
a power lawnmower. (Insurance will protect the lawnmower.) And it should
be a building, as opposed to a structure, so that a fence or basketball
hoop or cold frame cannot bar erection of an antenna-support structure.
Good public policy requires that the ordinance must include an escape
valve in the best interest of the neighbors. Take the example of a string
of half-acre lots along the street. Each lot is 100 ´ 200 feet. (But the
example would be better if each lot were 50 ´ 400 feet.) Assume all lots
back up to the town dump, a state highway or a forest. Most people would
argue that the spot to erect the structure where it would have the least
aesthetic impact would be â??way out back.â?? Yet a ratio-based ordinance
would force the structure into a more visible place, closer to the
neighbors.
Conclusion: If the planners insist on a ratio, you should insist on an
escape valve and add words such as: â??â?¦except where, for good reason
shown, the Board decides that it is in the best interests of the
neighborhood to permit construction closer to a lot line than would
otherwise be permitted.â??
Avoid â??varianceâ?? language, as the test to grant a variance is likely a
higher hurdle than â??for good reason shown.â??
Fred Hopengarten K1VR
hopengarten@post.harvard.edu
Six Willarch Road * Lincoln, MA 01773-5105
781/259-0088 *eFax 419/858-2421
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