Subject: "The law" on cell towers in communities (Brown)..
Date: Fri, 19 May 2000 053938 -0500 (CDT)
From: "Roy L. Beavers"
To: emfguru
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.......Dr. Gary Brown (who also informed us that Boca Rotan, Florida
has "outlawed" cell towers in residential areas) sent the following
excellent legal article..... Many of you in the "cell tower fights"
will want to save it.....
Roy Beavers (EMFguru)
roy@emfguru.com
.....It is better to light a single candle than to curse the darkness.....
NEW!!! Website... http://emfguru.com
...................People are more important than profits.................
LAWYERS WEEKLY USA
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December 13, 1999 Cite this Page: 99 LWUSA 1105
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National Law:
Town Can Reject Cell Phone Towers
Where a town zoning board would not allow a cellular phone tower in a
residential area, this didn't violate the Telecommunications Act of
1996, says the Third Circuit in reversing a U.S. District Court.
Over the past 10 years, towns have been trying to regulate where cell
phone towers are located. The towers can exceed 250 feet in height and
are often placed in residential areas or in the middle of a scenic
view. There are expected to be over 100,000 towers in the U.S. within
a few years. Although at first courts made it difficult for towns to
stop cellular towers from being built, municipalities are now having
increasing success.
Experts say that the Third Circuit's decision is the latest in a
series of cases to establish the power of local zoning authorities
over the placement of towers.
"The pendulum has swung back to the middle. The courts seem to be
striking a better balance between municipalities and the needs of the
industry," says John Wilson of Rochester, N.Y., who successfully
represented a municipality in a recent SecondCircuit case. (Sprint
Spectrum, L.P. v. Willoth, 176 F.3d 630; 99 LWUSA 521; Search words
for LWUSA Archives: Cross and Yesawich.)
"There was a time when the industry would roll over city councils and
say, The Act permits us to put up towers at our convenience,'" agrees
municipal lawyer Fritz Knaak of Vadnais Heights, Minn. "This case
shows that courts now better understand the arguments and are willing
to defer to a municipality's judgment." The decision should give towns
more leverage in negotiations with phone companies.
"Municipalities clearly have the upper hand," says attorney L. Steven
Emmert, who successfully represented Virginia Beach, Va., in a recent
Fourth Circuit case. (AT&T Wireless PCS v. City Council of Virginia
Beach, 155 F.3d 423; 98
LWUSA 745; Search words for LWUSA Archives: Gibson and Golembeck.)
"Providers are becoming more conciliatory at the zoning board level
because the risks of litigation are less clearly tipped in their favor
than they originally thought," agrees Wilson. Attorneys for cellular
phone companies complain that the courts are making it too difficult
for their clients to get towers approved.
"This case follows the trend of courts raising the bar on what a
provider needs to prove in order to get a site developed," says
Kenneth Baldwin, who practices in Hartford, Conn. "I don't understand
how any provider can really meet the burden imposed by this court."
Residential Area
The town in this case passed an ordinance restricting cell towers to
light industrial areas. A cell phone company requested a zoning
variance permitting it to erect a 160-foot tower in a residential
district. When the board denied the variance, the company sued under
the Telecommunications Act, arguing that the denial had "the effect of
prohibiting the provision of wireless
services." (47 U.S.C. Sect. 332(c)(7)(B)(i)(II).)
But the court disagreed.
"[T]he [Act's] 'effect of prohibiting' clause [does not] encompass
every individual zoning denial simply because it has the effect of
precluding a specific provider from providing wireless services...To
do so would provide wireless service providers with a wildcard that
would trump any adverse zoning decision...
"[A] provider whose application has been denied...must show two
things. First...that its facility will fill an existing significant
gap in the ability of remote users to access the national telephone
network... The provider's showing on this issue will...have to include
evidence that the area the new facility will serve is not already
served by another provider...
"Second, the...applicant must also show that the manner in which it
proposes to fill the significant gap in service is the least intrusive
on the values that the denial sought to serve."
In a second case decided a few days later, the court applied the same
two-part test, but remanded the case for additional findings as to
whether the proposed tower would fill a "significant gap."
High Threshold
Lawyers say requiring companies to show that a proposed tower will
fill a "significant gap" in service imposes a difficult new
restriction on cell phone towers. "The case establishes an awfully
high threshold for providers who claim that a municipality is
prohibiting wireless services, because they have to show that there's
no access to the national telephone network by any provider" in that
area, says Nancy Essex, a municipal attorney who works in Raleigh,
N.C.
In effect, the court is saying "that a municipality's authority to
deny a provider's application becomes greater when it is beaten to the
punch by another provider," says Ted Kreines of Tiburon, Calif., a
consultant to local governments on wireless planning and editor of the
newsletter PlanWireless. In addition, "the factual inquiry about
'least intrusive alternatives' is going to make these cases much less
susceptible to summary judgment," says Emmert.
The result, say defense lawyers, will be slower development and
increasing costs. "We're going to need more coverage, not less, in the
future, and the tougher it is to get towers erected, the slower the
system develops," says Baldwin. Companies will be forced to design
cell phone towers which are disguised as trees or flagpoles or worked
into existing structures, says Stoneham, Mass., attorney Greg Higgins,
who represents phone companies. "The downside is these technologies
cost two to five times as much as standard development costs - and
this translates into higher prices for the consumer."
What Towns Should Do
Experts say there are a number of things municipalities can do to make
it more likely that their zoning decisions will be upheld. A
front-page article on this issue appears at 97 LWUSA 529; Search words
for LWUSA Archives: Dam and Linder.
* Preempt problems.
The best way to handle conflicts over cell towers is to try to avoid
them altogether. Towns should bring in consultants before the issue
arises, says Knaak. That way, a list of available sites can be
compiled in advance and it won't look like the town is intentionally
trying to keep towers out.
Working out problems early in the process can benefit companies, too,
says Essex. "This case shows that it's in a provider's interests to
come to a local government early and get a whole network approved,
because when the provider needs one last tower to complete a pattern
and fill a gap, the fact that there's only one available site isn't
going to be enough to justify a
tower."
* Don't forget the details.
Although courts are becoming more likely to reaffirm local zoning
authority, municipalities still need to be meticulous about observing
procedural proprieties, says Essex. "A lot of the challenges to
municipalities have been on a procedural basis.
Make sure that an order rejecting an application contains the grounds
for the decision, and that decisions are made within a reasonable
time," she cautions.
Also, it's vital for towns to buttress their case with supporting
documentation and testimony. "The most important factor when you're in
court is to have a full record developed below," says municipal
attorney Kirk Wines of Seattle. "If you build a careful record at the
hearing level, the court is more likely to back
you up."
* Hire experts.
Another step that more and more municipalities are taking is to
counter companies' use of expert testimony with their own. "Be sure to
retain your own experts," says Philip Lope of Zelienople, Pa., who
represented the town in the Third Circuit case.
Municipalities should consider getting an expert to testify on such
issues as "the quality of service, the nature of the gap in service,
other feasible, less intrusive alternatives to the proposed tower, and
whether other providers are able to supply service without requiring a
zoning variance," suggests John Pestle, a municipal attorney from
Grand Rapids, Mich.
Other useful experts might include a radio frequency engineer who can
challenge the company's technological assertions and an appraiser to
testify about effects of the proposed tower on property values, says
Wines.
* Ask for alternatives.
Cities and towns should take advantage of the burden placed on
companies by challenging them to show that no less intrusive
alternatives are available, says Wilson. In this case, "the court said
that there are alternatives to every cell site
- no court has ever come right out and said that before. They've
danced around it, alluded to it, but here the court says, 'Don't just
bring us one option,'" says Kreines. But towns shouldn't get
overconfident without having the facts to back up the
assertion that less intrusive alternatives are available, warns
Emmert.
"If localities abuse their position, the courts are going to stop
giving them deference and say, if you really think there is a less
intrusive alternative, prove it," he says.
U.S. Court of Appeals, 3d Circuit. APT Pittsburgh L.P. v. Penn
Township, No. 98-3519. November 8, 1999. Lawyers Weekly USA No.
9917124 (20 pages).
U.S. Court of Appeals, 3d Circuit. Cellular Telephone Co. v. Zoning
Board of Adjustment of the Borough of Ho-Ho-Kus, No. 98-6484. November
19, 1999. Lawyers Weekly USA No. 9917132. (11 pages).
To order a copy of either opinion, call 800-933-5594.
Archive provided courtesy of WaveGuide, http://www.wave-guide.org
Reprinted with permission of Roy Beavers, http://www.emfguru.com