Wireless Communication Towers

Wireless Communication Towers

WIRELESS COMMUNICATIONS TOWERS: BALANCING MUNICIPALITIES’ RIGHTS TO CONTEST, DENY, OR MODIFY TOWER PLACEMENT AGAINST THE TELECOMMUNICATIONS ACT OF 1996

– Phil Dropkin

The towers are coming! The towers are coming! Ever more, in ever-more locations, and in all heights, shapes, and designs; all to promote the rapid deployment of certain telecommunications services. This is the intention of Congress under a section of the Telecommunications Act of 1996 (the “Act”). On its face, the Act restricts (and preempts to an extent) state and local zoning authorities in their decisions concerning the placement, erection, or modification of towers for personal wireless services (“PWS”). Briefly, PWS includes cellular, personal communications services (which is similar to cellular, but operates with lower power over higher frequencies), and mobile radio services. However, the federal courts are now engaged in the process of further clarifying the restrictions imposed on state and municipal authorities: in balancing municipalities’ rights to control development against the goal of the Act to encourage rapid deployment of PWS.

Time is short, and the march of tower construction companies and telecommunications companies is rapid. Once erected, there is little a municipality can do to alleviate any adverse aesthetic or other effects of towers. Orange Environment intends this paper to provide a brief summary of certain of the Act’s restrictions imposed upon, and rights reserved by, municipalities and states in protecting and controlling development in the face of increasing demands by communications companies for the placement, erection, or modification of communications towers. Orange Environment will endeavor to provide more detailed information and assistance upon request; however, municipalities are advised to seek the expert advice of their legal counsel. This advice is of particular significance in matters involving the Act because the law is new, court decisions are fact specific, at present only general guidelines can be drawn from them, and conflicting federal court decisions have yet to be reconciled.

The general principles that can be gleaned from the Act, and the current federal case law, as they affect zoning and land use proceedings for telecommunications towers are:

  • Generalized possible health risks from communications towers are not sufficient grounds for municipal denial to construct or modify a tower. Rather, there must be evidence that the Federal Communications Commission’s regulations for radio frequency emissions will be violated. Bulletin 65 of the FCC sets forth the requisite health considera- tions. Towers must comply with the National Environmental Policy Act of 1969 and, in New York, are subject to the State Environmental Review Act.
  • Generalized aesthetic concerns, or generalized concerns of a decrease in property values, are weak support for denial of a tower siting or modification application. The concerns must be specific so as to provide substantial evidence to support denial: for example, preservation of a historic land- mark or the location of a tower in a residential district (particularly where an alternative commercial site is available). Additionally, a municipality may require towers to more fully blend with the surroundings. For example, in a rural setting, it is possible to require that a tower be structured and designed so as to look like a tree.
  • Municipalities may not engage in undue delay, however one court has upheld a six month moratorium on issuing permits for additional towers.
  • A decision to deny must be in writing and supported by substantial evidence. It is yet to be resolved by the courts if the writing can be suppor- ted by separate letters, reports, and testimony contained outside of the denial.
  • Denial is appealable directly to the federal courts. The standard of review applied by most federal courts, as to whether the decision is supported by substantial evidence, is whether a reasonable mind might accept the evidence as adequate to support the conclusion. The majority of courts have ordered injunctive relief, rather than remand for further consideration by the muni- pality, upon finding that the municipality’s decision has violated the Act.
  • Discrimination by the municipality among providers of functionally equivalent service is allowed, as long as the discrimination is not unreason- able. At least one court has found that pager service and cellular service are not functionally equivalent (which determination resulted in upholding the municipality’s decision).
  • A municipality may reject an application that seeks permission for more towers than the minimum required to provide wireless telephone service in a given area. Further, a municipality may deny an application for con- struction of a wireless service facility in an under-served area without thereby impermissibly prohibiting PWS if the service gap can be closed by less intrusive means. Consequently, the Act does not prohibit a municipality from reviewing and analyzing the applicant’s engineering plans and decisions in the zoning proceeding.
  • A federal court has recently decided that a service provider’s lease with a school district to operate its tower and facilities at lower radio frequency emission levels than permitted by the FCC was unenforceable because the FCC has preemptive and exclusive jurisdiction over technical matters.

Perhaps the fluidity of the siting of towers is best articulated in another recent court decision: “[t]he statute’s balance of local autonomy subject to federal limitations does not offer a single ‘cookie-cutter’ solution for diverse local situations, and it imposes unusual burdens on the courts… If this refreshing experiment in federalism does not work, Congress can always alter the law.” Stay tuned.