Subject: HURRAY !!! Fwd Virginia Beach Tower Siting Decision (fwd)
Date: Fri, 4 Sep 1998 100010 -0500 (CDT)
From: "Roy L. Beavers" <rbeavers@mail.llion.org>
To: emfguru@hotmail.com
--------------------------------------------------
Hi everybody:
Here is another court action on the tower siting issue....
Note, that local judges are proving to be inconsistent. The
Telecommunications Act (TCA) amendment which Senator Leahy is
proposing is badly needed. Won't happen, though, this year --
probably....
Please do all the "educating" you can to your local Congressmen
and Senators during this election period.... Industry has TENS of
millions to spend on lobbying this issue -- and they have a full-time
omnipotent presence in Washington THAT WE DON'T HAVE.....
The language that your legislators will understand best is that YOU
WILL VOTE THEM OUT of office if they AGAIN sell out to the
telecommunications industry....
Cheerio....[Sorry that some of you are getting this again. There are
duplicate lists at work here.....]
Roy Beavers (EMFguru)
rbeavers@llion.org..............http://www.feb.se/EMF-L/EMF-L.html
................................It is better to light a single candle ...
than to curse the darkness...............................................
---------- Forwarded message ----------
Date: Fri, 04 Sep 1998 09:37:05 -0400
From: John W Pestle
Subject: HURRAY !!! Fwd: Virginia Beach Tower Siting Decision
FYI
Subject: Virginia Beach Tower Siting Decision
Reply-To: telecomreg@relay.doit.wisc.edu
Sender: owner-telecomreg@relay.doit.wisc.edu
The Fourth Circuit has issued an important decision upholding local
authority to control the placement of cellular towers.
Among other things, the decision, issued in a case involving the City of
Virginia Beach and AT&T Wireless PCS and several other wireless
providers, concludes : (1) cities need not issue detailed written
decisions in order to support a decision to deny construction of a
tower; (2) a decision to deny a request for permission to construct a
tower can be based on the complaints of ordinary citizens that the tower
will damage the neighborhood; (3) denial of a tower siting request is
not inherently discriminatory; and (4) provisions of the
Telecommunications Act which state that a city may not enact laws
prohibiting the provision of cellular services do not prevent a city
from denying individual applications for approval of a siting request.
The City was represented on the appeal by the City of Virginia Beach
Office of the City Attorney and by Miller & Van Eaton, P.L.L.C.
The decision is important because cellular providers have argued that
cities cannot deny tower siting requests based solely on citizen
complaints (at least where the company submits expert testimony that the
tower siting will not harm the community). Some companies also have
argued that cities must issue detailed findings of fact and law to
support any siting decision. As the industry is well aware -- and as
the Fourth Circuit recognized - adopting the industry position
effectively eviscerates and substantially and unfairly complicates the
local zoning process. Hence, the Fourth Circuit rejected those
positions and reversed a lower court decision that had adopted them.
Particularly noteworthy is the Fourth Circuit's recognition of the
importance of the input of ordinary citizens:
"The record here consists of appellees' application, the Planning
Department's report, transcripts of hearings before the Planning
Commission and the City Council, numerous petitions opposing the
application, a petition supporting the application, and letters to
members of the Council both for and against. Appellees correctly point
out that both the Planning Department and the Planning Commission
recommended approval. In addition, appellees of course had numerous
experts touting both the
necessity and the minimal impact of towers at the Church. Such evidence
surely would have justified a reasonable legislator in voting to approve
the application, and may even amount to a preponderance of the evidence
in favor of the application, but the repeated and wide-spread opposition
of a majority of the citizens of Virginia Beach who voiced their views
-- at the Planning Commission hearing, through petitions, through
letters, and at the City Council meeting -- amounts to far more than a
'mere scintilla' of evidence to persuade a reasonable mind to oppose the
application. Indeed, we should wonder at a legislator who ignored such
opposition. In all cases of this sort, those seeking to build will come
armed with exhibits, experts, and evaluations. Appellees, by urging us
to hold that such a predictable barrage mandates that local governments
approve applications, effectively demand that we interpret the Act so as
always to thwart average, non-expert citizens; that is, to thwart
democracy. The district court dismissed citizen opposition as
"generalized concerns." 979 F. Supp. at 430. Congress, in refusing to
abolish local authority over zoning of personal wireless services,
categorically rejected this scornful approach." AT&T Wireless PCS, Inc.
v. City Council Of The City Of Virginia Beach, No. 97-2389 (4th Circuit
September 1, 1998).
The decision will be available at www.millervaneaton.com within a few
days of this post.
Archive provided courtesy of WaveGuide, http://www.wave-guide.org
Reprinted with permission of Roy Beavers, http://www.feb.se/EMF-L/EMF-L.html