In a unanimous decision, the ZBA voted to vacate the building permit because, in its determination, the ham radio tower Framingham resident Mikhail Filippov wants to build doesn’t comply with local setback requirements as proposed. Filippov's attorney says he's waiting for the ZBA's final opinion before he decides where to take the case next.

FRAMINGHAM - The radio tower that Mikhail Filippov wants to build is 80 feet tall. It would be made of extra-strength steel. It would pick up frequencies that allow him to speak with people as far away as Moscow, even in a communications blackout that cut off phone lines and internet.

Filippov is an amateur ham radio operator who lives at 273 Prospect St., which is where he wants to build the tower. The city issued him a building permit, and Filippov started to pour the foundation.

Then his neighbors found out.

Since then, those neighbors have been mounting a vigorous campaign to halt the project, which they argue would be a dangerous eyesore that scars the neighborhood and hurts families’ nest eggs. On top of all that, the tower as proposed is illegal, they said.

Filippov’s lawyer, Fred Hopengarten, who has written a book titled “Antenna Zoning for the Radio Amateur: Everything you and your attorney need to know to obtain a permit for antenna-support system,” argued the city has no right to prevent the tower’s construction.

But at Wednesday night’s Zoning Board of Appeals meeting, it was the neighbors who filled the room who left smiling.

In a unanimous decision, the ZBA voted to vacate the building permit because, in its determination, the tower doesn’t comply with local setback requirements as proposed.

In comments that led to the final vote, 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).”

ZBA members said that if Filippov decides to reapply for a building permit, Building Commissioner Michael Tusino should decide if the project falls under the Dover Amendment, a Massachusetts law that specifically references ham radio towers. If so - and ZBA members believe it does - then Tusino should send the project to the Planning Board for site plan review, they said.

Attorney takes issue

On Thursday, Hopengarten told the Daily News that he’ll wait for the ZBA to publish its written opinion before deciding what course of action to take on behalf of Filippov, who he said still has “a keen interest in proceeding” with the tower project.

But Hopengarten takes issue with the ZBA’s application of state and local rules, saying that, while he contends the tower is protected under the Dover Amendment, he isn’t “claiming exception” to Framingham’s zoning bylaws under that amendment. The phrase “claiming exception” is referenced in the city bylaw that ZBA members decided could make a site plan review necessary for this project.

Hopengarten argues the city should regulate the tower under the minimum practicable regulation, language used in the section of the Dover Amendment that deals with ham radio towers. In his view, the minimum practicable regulation is a Framingham bylaw that states construction of the tower is allowed by right with setbacks of 30 feet from the front of the property, and 15 feet from the sides of the property, which would mean Filippov’s tower could be built as proposed.

Susan Munter, a neighbor who strongly opposes construction of the tower, said she holds no illusions that the fight is over. Still, she said, the neighbors won this round.

“I think it’s definitely a step in the right direction,” she said.

If Filippov doesn’t want to apply for another building permit, he could decide to appeal the ZBA’s decision to court. If he does that, the case would likely wind up in Land Court or superior court, said ZBA member Susan Craighead. Still, she said, federal law is involved, so it’s possible the appeal could lead to federal court, something Hopengarten said is still on the table.

If he takes that path, Hopengarten and the neighbors opposed to the radio tower will likely again wade into the tangled web of local, state and federal regulations they’ve been debating over the past few ZBA meetings.

Several neighbors spent hours preparing evidence and testimony for the ZBA hearings. Stuart Bloomfield battled with the city to get records about radio tower permits issued in the past. Donna Gittelsohn, a Coldwell Banker real estate broker, gathered opinions from real estate professionals throughout the area stating that an 80-foot radio tower could take at least 10% off the sale price of nearby homes.

Sophia Banar read the entirety of Framingham’s zoning bylaws, leading her to a bylaw stating that projects falling under the Dover Amendment should undergo site plan review by the Planning Board. If the proper process is followed, Banar said, the project won’t be able to go forward.

Hopengarten takes issue with that argument because of the “claiming exception” language, but it was one that resonated with ZBA members, and the point ultimately made it into their final ruling.

Neighbors hope fight ends

Banar and other neighbors said they're grateful for the ZBA’s thorough consideration of their case.

“They were both analytically prepared as well as compassionate,” Banar said. “We felt respected as a community for how much effort they put into the homework that they’ve done and the deliberation that they’ve had.”

Banar is holding out hope that Filippov will take the concerns of his neighbors, which include the students and employees at the Learning Center for the Deaf, into account and give up the fight. At Wednesday’s meeting, representatives of the Learning Center told ZBA members they’re worried the tower will impact the hearing aids students and staff use.

“They as human beings should understand that they are not only upsetting the entirety of the neighborhood, but they are potentially impacting hundreds of children that are already disadvantaged,” Banar said of the Filippovs. “They should have looked at this and said, maybe my hobby shouldn’t be at the expense of disadvantaged children.”

Hopengarten said Filippov’s interest in ham radio is more than a hobby.

Filippov hails from St. Petersburg in Russia. The only job he could get that would make him eligible to emigrate from Russia was in Siberia, Hopengarten said. Filippov spent years in Siberia working as an electrical engineer focused on communications, all the while dreaming of one day owning a home where he could build his own radio tower.

Filippov moved to the U.S. in the late 1990s, Hopengarten said. When he arrived, he worked to build a life here, buying a house, starting a family, getting his ham radio license, and finally, applying for a building permit to erect an 80-foot radio tower in his yard.

His goal is to build a tower that will allow him to speak to other ham radio operators in Russia and Israel, where many Russians emigrated. What do they talk about? Mostly, Hopengarten said, ham radio.

Jeannette Hinkle is a reporter for the MetroWest Daily News. Reach her with tips or feedback at jhinkle@wickedlocal.com. Follow her on Twitter @Jenny_Hinkle.