|Legal Opinion: |
Text of Document: April 18, 2011
Dear Community Development Director:
You asked for a review of the letter that TWA wrote to you relative to a proposed ordinance the city has apparently drafted pertinent to cell tower siting. I have the 2007 your City Cell Tower Siting Ordinance, but I do not have the proposed ordinance. For that reason, I will generally comment on the TWA letter based on what it says about the proposed ordinance, particularly.
II. Several Provisions within the Ordinance Will Likely Undermine the Ordinance’s Stated Goals....
The TWA letter may make technological sense, but most communities are sensitive about seeing a sea of antennae in their neighborhoods. From a legal perspective, the cases governing the application of the Telecommunications Act are not necessarily even and predictable. In addition, the Telecommunications Act may not be as heavily weighted against local government ordinances governing cell tower siting as one might otherwise conclude from the cases on such ordinances that have gone against local governments. Many cell tower siting cases appear to reflect a poor job of local governments responding to cell tower applications. At the same time, I am not sure whether improved local government responses to such applications would improve their outcome. It is also a fact that cell telephone service requires towers.
The recent unreported case of Tennessee ex rel. Wireless Properties v. City of Chattanooga, 2010 WL 104586 (E.D. Tenn. 2010), generally accurately reflects the relationship between the Telecommunications Act and local ordinances governing cell tower siting:
The [Telecommunications] Act applies two specific limitations on a State’s or local governments’ authority to make zoning decisions affecting the “regulation of the placement, construction, and modification of personal wire service facilities.” 47 U.S.C. § 332(c)(7)(B).
(I) states or local governments “(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. ....” [T]he substantial evidence standard of section 332 is the traditional standard employed by the courts for review of agency action.” [Citations omitted by me.] “The Act’s substantial evidence requirement ‘surely refers to the need for substantial evidence under the criteria laid down by the zoning law itself.’ ... ‘The substantial evidence test applies to the locality’s own zoning requirements...’”: [Citations omitted by me.] [At 11]
The Court continued:
The Act is not intended to strip local governments of zoning authority for communications towers. See 547 U.S.C. (C)(7)(A) (“Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over the decisions regarding the placement, construction, and modification of personal wireless services facilities.”) Section 332(c)(7)(B) “is a deliberate compromise between two competing aims-to facilitate nationally the growth of wireless telephone service and to maintain substantial control over siting towers.” [Citations omitted by me.]
In this case, said the Court, the zoning ordinance in question permitted the building of “only” a triplex on the property in question; it did not allow the construction of a cell tower on it. A permit for the tower was denied.
The language of the Court related to the “substantial evidence” standard is not clear with respect to what it takes to make a case that a provision of a local cell tower siting ordinance violates the Telecommunications Act. But the U.S. Sixth Circuit Court of Appeals case of New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 2002), adds some flesh to Tennessee ex rel. Wireless. There, the Sixth Circuit held that the city’s refusal to grant a variance for a cell tower from the zoning codes frontage and area requirements was not supported by substantial evidence. The cell tower company alleged that it needed the variance to fill a “gap” in its coverage. The Court, using language similar to that found in Tennessee ex rel. Wireless, spoke of the Telecommunications Act’s competition between the city’s zoning authority and the Act’s aim of facilitating wireless growth, but declared that:
We conclude that the Board’s denial of New Par’s variance was not supported by substantial evidence contained in a written record. Only three concerns about the cellular tower were raised in the Board’s meetings: (1) aesthetics; (2) health and safety issues regarding electromagnetic emissions; and (3) whether New Par could instead put the tower on railroad property owned by CSX. In regard to the first concern, other circuits have held that a “few generalized expressions of concern with ‘aesthetics’ cannot serve as substantial evidence on which the Town could base the denials. [Citations omitted by me.] At the Board meetings in this case aesthetic concerns were mentioned only a few times and they were never discussed. [Meeting citations omitted by me.] In regard to the second concern, the Act explicitly prohibits local board decision making “on the basis of the environmental effect of radio emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” 47 U.S.C. § 332(c)(7)(B)(iv). And the third concern simply does not go to any of the criteria set out in the Zoning Code regarding when the Board can grant a zoning variance. [At 398]
The Court also pointed to the District Court’s findings that:
[T]here was no evidence presented at the Board meetings in regard to the four requisite findings delineated in the Saginaw Zoning Code § 2714(c) that could weigh against New Par’s variance request. The proposed cellular tower would have no effect on vehicular traffic, 2717(b), and New Par claimed that it would not be a nuisance, § 2714(c). Although it is possible that the cellular tower would not constitute a use appropriate to the neighborhood, § 2714(a), or that the tower would negatively affect adjacent property values, § 2714(d), no evidence in regard to these factors was presented at the meetings. Therefore, because New Par made an adequate showing that by reason of the property it would suffer “peculiar or exceptional practical difficulties” or “unnecessary undue hardship:” without a variance from the Zoning Code’s frontage and areas requirements and because there was no evidence in a written record that would weigh against granting New Par’s variance request, we conclude that the Board’s denial of New Par’s variance request was not supported by substantial evidence in a written record. [At 399]
It seems clear from that language that a local government is required to respond to a cell tower application with some reasonably certain evidence showing that the cell tower does not meet the provisions of the zoning ordinance, including with respect to variance provisions in the zoning ordinance, that the cell tower applicant does not qualify for such relief under those provisions, in order to meet the substantial evidence standard.
Section II (A) says that “The setbacks, minimum lot sizes, and separation requirements in the proposed ordinance may violate federal law because they make it difficult to provide services to residential areas and may lead to the unintended consequences of having a greater number of single carrier towers.” The second paragraph of Section II (B) further says that, “These setback restrictions, separation distances and minimum lot size requirements will make it nearly impossible to site new cell phone towers near residential areas, where they are needed most to close service gaps,” and that “The large lots that would be required by the excessive setback provision simply do not exist within well-developed residential and commercial areas of the City....”
TWA may have a point if indeed there are service gaps. There are a significant number of “service gap” cases, including New Par , above, in the Sixth Circuit. But most of those cases appear to require a hefty amount of proof to support the proposition that there is a service gap within the meaning of the Telecommunications Act (or a default by the city in question to adequately counter that proof). But it seems to me that cites generally are at a distinct disadvantage in trying to counter the cell tower company’s proof in such cases.
The proof standard is generally set out in New York v. SMSA v. Township of Mendham Zoning Board of Adjustment, 858 A.2d 1133 (N.J. 2004). There the court overturned the refusal of the city to grant a variance for a cell tower on residential property. The court reasoned that the cell tower company could not “fill a significant gap in existing service” without the tower. However, what the Court said cuts two ways:
In applying for site plan approval and variances from local zoning ordinances, wireless communications carriers operating under the TCA [Telecommunications Act of 1996] must demonstrate that (1) there is an existing, significant gap in service within the municipality; (2) their proposals will fill the gap in the least intrusive manner; (3) they have made good faith efforts to investigate alternative technologies and alternate sites which may be less intrusive in the community; and (4) the area is not already being serviced by another wireless provider. Spring Spectrum, L.P., supra, 352 N.J. Super. At 604, 609-10, 801 A.d 336l. Plaintiffs established each of the Sprint Spectrum criteria. [At 905]
Under that test, the allegation that there are “service gaps” does not automatically carry the answer that there are such gaps. But again, cities are probably at a disadvantage in countering such arguments.
U.S. Cellular Corp v. City of Wichita Falls, 364 F.3d 250 (5th Cir. 2004), also stands for the proposition that the failure to conform to setback requirements can reflect substantial evidence to support the denial of a cell tower permit where the setback waivers required are great.
It may indeed be correct that the setback requirements, lot size and distance regulations may be burdensome within the context of the Telecommunications Act, but presumably, if that is so, the cell tower company can make a case for a variance from the siting ordinance.
Under II(b) of the TWA letter, “there is no rational basis for the setback, lot size and distance regulations,” and for that reason the “city is concerned about the environmental and health effects from radio frequency emissions and wants to put some distance between the towers and its residents.” A cell tower company can attempt to make the case that the City of Your City’s tower siting ordinance regulations are based on such concerns. Frankly, I miss that connection but it was declared in New Par, above, that health concerns over radio frequency emissions do not reflect substantial evidence. [Also see AT&T Wireless Services of Cal. v. City of Carlsbad, 308 F.Supp. 1148 (S.D. Cal. 2003)]
Similarly, USCOC of New Hampshire RSA # 2, Inc. v. City of Franklin, 413 F. Supp. 2d 21 (D.N.H. 2006), is interesting from the perspective that the speculative fear of the cell tower falling (on nearby above ground storage fuel tanks) was not supported by substantial evidence. The city produced some meager speculation that one or two towers may have fallen at some time in the past. A similar result was reached in Ominipoint Communications, Inc. v. Penn Forest Township, 42. F.Supp. 492 (M.D. Pa. 1999).
Under Section II(c) it is argued that N.Y. SMSA Ltd. P’ship v. Town of Clarkston, 612 F.3d 97 (2d Cir. 2010) stands for the proposition that a cell tower ordinance cannot “require applicants to demonstrate the technological reason to justify why alternate technologies cannot be utilized....” However, I note that in New York v. SMSA v. Township of Mendham Zoning Board of Adjustment, above, the Court spoke of the site plan requiring the consideration of alternate technologies and cell tower locations, although the Court made no comment on that requirement.
Section II(D) takes issue with the vesting of the city’s planning commission the authority to consider requests for special exceptions. I am unable to comment on this issue because I am not sure of how the proposed ordinance reads on that point.
Finally, the TWA letter points to the Tennessee statutes that deal with cell tower citing: Tennessee Code Annotated, § 13-24-301 et seq. As far as I can determine only one case has ever been brought under that statutory scheme. In the unreported case of Domincovitch v. Wilson County Board of Zoning Appeals, 2000 WL 1657843 (Tenn. Ct. App.), the board of appeals denied a permit for a cell tower on a 29 acre parcel of property zoned agricultural. Wilson County had a cell tower regulation, but the board of zoning appeals turned down the cell tower company’s application for a permit, not because of anything in the regulation, but because of “safety to the airport.” The court overturned the board’s denial of the permit on the ground that the board had exceeded its jurisdiction. It could act only within the confines of the zoning regulations; it could not require additional conditions not contained in the zoning ordinance, none of which pertained to the airport.
The court did not consider the application of the Telecommunications Act.
Sidney D. Hemsley
Senior Law Consultant