Wireless Telecommunications in 2001:
A Municipal Perspective
Law Seminars International
Local Telecommunications Infrastructure Conference
August 24, 20011
by Timothy X. Sullivan2
"This case dramatizes the perpetual clash between national and local interests and between material progress and natural beauty. In the Nineteenth Century Railroad tracks were layed by Walden Pond; in the Twentieth Century telephone poles were the trees that grew on urban streets; in the Twenty-first Century wireless tower will become familiar landmarks across the suburban landscape. A universal technological advance cannot be permanently stayed by a local strategem devised to protect and preserve the character and beauty of a locality. The enduring principle of local control of land use shall be honored, but only if a federal law which promotes the establishment of a comprehensive national wireless telecommunications network is not thereby subverted. For good or ill, Hamilton's, not Jefferson's, vision of America has prevailed."
Omnipoint Communications v. Town of Lincoln, 107 F.Supp.2d 108 (D.Mass. 8/2/2000)
INTRODUCTION
Two years ago I delivered a paper at this seminar "Wireless and Wireline: How are Local Governments Faring under the Telecommunications Act of 1996? A Review of Federal Cases." Last year I delivered a paper on the new Washington municipal right of way telecommunications law, now codified in Chapter 35.99 of the Revised Code of Washington. I appended to my paper last year a brief update on some of the most important wireless telecommunications cases decided by federal court since I last addressed this topic.3 Today I return to a more in depth discussion of recent federal court decisions reviewing local government siting decisions for new wireless telecommunication facilities.
THE LEGISLATIVE BACKDROP
Federal intervention in local government decisions regarding the siting of wireless telecommunications facilities stems from section 704 of the Telecommunications Act of 1996. Now codified at 47 USC § 332(c), the act provides:
(7) PRESERVATION OF LOCAL ZONING AUTHORITY.
(A) General authority. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations.
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof--
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect or prohibiting the provision of personal wireless services.
(ii) A State or local government or instrumentality
thereof shall act on any request for authorization to place, construct, or modify
personal wireless service facilities within a reasonable period of time after
the request is duly filed with such government or instrumentality, taking into
account the nature and scope of such request.
(iii) Any decision by a State or local government
or instrumentality thereof to deny a request to place, construct, or modify
personal wireless service facilities shall be in writing and supported by substantial
evidence contained in a written record.
(iv) No State or local government or instrumentality thereof
may regulate the placement, construction, and modification of personal wireless
service facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the Commission's regulations
concerning such emissions.
(v) Any person adversely affected by
any final action or failure to act by a State or local government or any instrumentality
thereof that is inconsistent with this subparagraph may, within 30 days after
such action or failure to act, commence an action in any court of competent
jurisdiction. The court shall hear and decide such action on an expedited basis.
Any person adversely affected by an act or failure to act by a State or local
government or any instrumentality thereof that is inconsistent with clause (iv)
may
petition the Commission for relief.
(C) Definitions. For purposes in this paragraph-
(i) the term "personal wireless services"
means commercial mobile services, unlicensed wireless services, and common carrier
wireless exchange access services;
(ii) the term "personal wireless service
facilities" means facilities for the provision
of personal wireless services; and
(iii) the terms "unlicensed wireless service" means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)).
Section 332 has been interpreted by courts to impose several substantive and procedural limitations upon local government decisions regarding the siting of wireless telecommunications facilities.
These limitations include substantive prohibitions whereby local governments land use decisions cannot as a matter of federal law:
(1) unreasonable discriminate among providers of functionally equivalent services; or
(2) prohibit or have the effect of prohibiting the provision of personal wireless services; or
(3) deny an application based on the environmental effects of radio frequency emissions to the extent that the proposed wireless telecommunications facilities comply with the FCC's regulations concerning such emissions.
The limitations imposed by the Telecommunications Act also are also procedural. Local governments exercising land use authority over wireless facility siting decisions must meet certain procedural requirements. Local governments must:
(1) act upon any request for authorization to place, construct or modify personal wireless service facilities within a reasonable period of time; and
(2) justify a denial of an application in writing and supported by substantial evidence contained in a written record; and
(3) accept that any person adversely affected by any final action or failure to act may commence an action in any court of competent jurisdiction.
SETTLED AREAS OF FEDERAL TELECOMMUNICATIONS LAW
Five years after the enactment of the Telecommunications Act of 1996 several aspects of the wireless telecommunications provisions now seem well settled by the federal courts.
If a reviewing court is convinced that the local government improperly denied a siting application for a personal wireless facility, federal courts are willing to enter orders requiring that the permit be issued. See, e.g., Omnipoint Communications v. Town of Lincoln, 107 F. Supp.2d 108 (D.Mass. 8/2/2000). While remand to the local government decision making body is still an option, courts, on balance, are swayed by the Congressional intent to provide for the rapid deployment of wireless telecommunications facilities.
Federal courts are also not hesitant to sweep aside any state law claims brought by local property owners contesting the authority of local planning and zoning officials who enter into settlement agreements with telecommunications providers whereby a permit for construction of such facilities will be granted. See, e.g., Brehmer, et al. v. Planning Board of the Town of Wellfleet, 238 F.3d 117 (1st Cir. 2/6/2001).
Courts also apply two different levels of proof to telecommunications providers' challenges to local zoning decisions. Federal courts will give deference to a local government's decision denying a particular wireless telecommunications facility application. The courts will overturn such a decision only if it is not supported by substantial evidence in a written record. See, e.g., USCOC of New Hampshire v. Town of Hopkinton, 137 F. Supp.2d 9 (D.N.H. 4/9/2001).
Federal courts, however, will grant no such deference to a determination whether the local government's decision prohibits or has the effect of prohibiting the provision of personal wireless facilities. This is a matter to be determined de novo by the federal court. See, e.g., APT Pittsburgh v. Lower Yoder Township, 111 F. Supp.2d 664 (W.D.Pa. 7/24/2000).
UNSETTLED AREAS OF FEDERAL TELECOMMUNICATIONS LAW
There are still unsettled areas of law relating to siting of wireless telecommunications facilities. While local governments that denied siting applications for wireless telecommunications facilities did relatively well when defending their decision in federal court in the last year, winning 10 out of 15 cases, it is difficult to discern a consistent rational that justifies these results.
The biggest unsettled issue remains what set of facts are sufficient "substantial evidence" to justify a local government's denial of a wireless communications facility application. Five years after passage of the Act, courts are still struggling over who has the burden of proof upon a judicial review of a local government decision to deny a siting application for a wireless telecommunications facility. Some courts indicate that the burden of proof is on the local government to justify the denial. See, e.g., Laurence Wolf Capital Management Trust v. City of Ferndale, 128 F. Supp.2d 441 (E.D.Mich. 12/18/2000). Others indicate that the burden falls upon the wireless telecommunications carrier. See, e.g,, Century Cellunet v. City of Ferrysburg, 993 F.Supp. 1072 (W.D. Mich. 1997). While still others note the existence of the controversy but avoid deciding the issue. See, e.g., SBA Communications v. Zoning Comm. of the Town of Brookfield, 112 F.Supp.2d 233, (D. Conn. 9/26/2000).
The burden of proof issue arises, in part, out of local land use law. Generally speaking, wireless telecommunications antenna towers fall within special use permits, conditional use permits, or variance permit requirements of local land use law. Few municipalities allow for the building of such towers outright. A discretionary local land use permit approval by the local government is a prerequisite to the wireless telecommunications provider's ability to secure a building permit to construct the tower.
Most local land use authorities require some specialized showing of need by a wireless telecommunications service provider before the local government will grant a special use, conditional or variance permit application. Thus, local land use law requires the telecommunications service provider to justify the need for a specific height tower at a specific location. The burden of proof under local land use law rests on the wireless telecommunications service provider.
There is not a coherent set of cases that allow either the wireless telecommunications service providers or the local government to know what special circumstances justify either the issuance or a denial of a permit. For example, courts disagree on the weight to assign to a gap in the service coverage of a wireless provider. Compare, Sprint Spectrum v. Board of County Commissioners of Jefferson County, Colorado, 1999 WL 592009 (D.Colo. 1999) with Cellular Telephone Co., v. Borough of Ho-Ho-Kus, N.J., 197 F.3d 64 (3rd. Cir. 1999). How big a service gap must wireless telecommunications providers prove before they are entitled to locate a wireless facility at a particular location to fill that gap?
Courts are also conflicted as to whether a local government can confine a land use decision only to the wireless telecommunications service needs of residents of the local government or whether they must factor in the wireless telecommunications facilities needs of commuters on highways passing through or by the local community. Compare Hoh-Ho-Kus, supra, with USCOC of New Hampshire v. Town of Hopkinton, 137 F. Supp.2d 9 (D.N.H. 4/9/2001). There seems to be no agreement yet as to whether wireless telecommunications service providers are entitled to a sufficient number of antennas to provide wireless signals with adequate signal strength to penetrate building walls or just the lower signal strength needed to "hit" mobile wireless antennas.
The compromise crafted by Congress between encouraging the rapid deployment of wireless telecommunications services and preserving local zoning authority is especially apparent in decisions addressing competing wireless service providers. Federal telecommunications law does not guarantee wireless providers a seamless network with no gaps in coverage. Indeed many federal courts reviewing cases where a local jurisdiction has rejected a provider's tower siting application look to see if any cellular coverage is available from any carrier within the area. So long as service is available from at least one wireless telecommunications carrier, then the courts have been satisfied that the local government is not prohibiting the provision of personal wireless services in contravention of the Act. Arguably such a result preserves the competitive advantage of incumbent wireless providers and discriminates against new providers. It seems to conflict with the pro-competitive anti-regulatory policies of the Telecommunications Act.
While some of the unpredictability of wireless siting cases may stem from judicial inconsistencies, the major source is the opaque and unclear language of the statute itself. As the Supreme Court noted, "It would be a gross understatement to say that the Telecommunications Act of 1996 is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction. That is most unfortunate for a piece of legislation that profoundly affects a crucial segment of the economy with tens of billions of dollars." AT&T, et al., v. Iowa Utilities Board, 119 S. Ct. 721, 142 L.Ed.2d 834, 859-860 (1999).
SYNOPSIS OF RECENT FEDERAL COURT WIRELESS CASES
A. COURT OF APPEALS CASES
Brehmer, et al. v. Planning Board of the Town of Wellfleet, 238 F.3d 117 (1st Cir. 2/6/2001). Affirms District Court decision granting summary judgment to Wellfleet, Massachusetts Planning Board and Omnipoint Communications. A Wellfleet citizens group sued the Zoning Board about its decision to grant Omnipoint a special permit to construct a wireless telecommunications facility in the steeple of an historic church in Wellfleet on scenic Cape Cod. Plaintiffs alleged that the decision to allow the facility violated the Massachusetts zoning law requiring a public notice and hearing. The District Court dismissed plaintiffs' claim because the Planning Board had entered into a consent agreement in federal court with Omnipoint that required the issuance of the special permit.
The Planning Board had previously denied Omnipoint's siting application based on a concern about the environmental effects of radio frequency emissions. When Omnipoint sued the Town in federal court under the Telecommunications Act, the Town conceded error in denying the permit application. The District Court found that in light of the Town's admitted previous violation of the Act, "it would be inappropriate and, in fact, a waste of time an energy to order a Planning Board to reconvene a process where the appropriate remedy for a violation of the TCA, in fact, is injunctive relief by way of a written order such as the relief given by this Court." The Court of Appeals similarly gave short shrift that Massachusetts law requires a new public notice and hearing, stating "Under the TCA, local zoning ordinances, such as those invoked by appellants, apply only to the extent that they do not interfere with other provisions of the Act."
Southwestern Bell Mobile Systems v. Todd (Town of Leicester, MA.), 244 F.3d 51 (1st Cir. 3/30/2001). Affirms District Court decision affirming Town's denial of special permit application to build a 150-foot high lattice telecommunications tower. The case is notable for several of its holdings.
First, after noting that "Courts evaluating what constitutes a proper written denial under the Act have been unable to settle upon a uniform standard to guide local authorities," the First Circuit held that written findings of fact and conclusions of law are not required to be entered by a local zoning board when denying a wireless communications facility application. Said the Court, "We conclude, therefore, that the TCA requires local boards to issue a written denial separate from the written record. The written denial must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons."
Second, the Court of Appeals affirmed the District Court's determination that the Town was correct in denying the permit application based on a Town Bylaw requiring a applicant to "successfully demonstrate to the satisfaction of the Board that the proposed facility will have minimal visual impact ..." In upholding the Town decision to deny the tower application based on aesthetic impacts the Court of Appeals focused in on the evidence in the record regarding the particular site. Said the Court:
The majority of the objections to the visual impact of the tower specifically addressed whether this 150-foot tower was appropriate for this particular location on the top of a fifty-foot hill in the middle of a cleared field. The location has no trees, was in the geographic center of town, would be visible at all seasons of the year, and would be seen daily by approximately 25% of the town's population. It was also located in close proximity to three schools and two residential subdivisions. The closest of these two subdivisions, the Carey Hills Estates, had houses that were located only 200 feet away.
Third, the Court of Appeals soundly rejected Southwestern Bell's assertion that the Town had the burden of proving that there were alternative sites that would have a lesser visual impact if the Town denied the application based upon the more than "minimal visual impact" standard of the Bylaw. Said the court:
We see nothing in the TCA that would support placing a burden upon the Board to present evidence that there were other sites available to Southwestern Bell with a lesser minimal visual impact. The "substantial evidence" requirement does nothing more than allow applicants to overturn denials if they can prove that the denial lacks adequate evidentiary support in the record. Although that substantial evidence requirement is complemented by the provisions of the TCA that presents a locality from prohibiting personal wireless services, see Town of Amherst, 173 F.3d. at 16, the burden would be on Southwestern Bell, and not the Board, to provide evidence demonstrating that "further reasonable efforts [to secure a special permit to build a wireless facility] are so likely to be fruitless that it is a waste of time even to try." Id at 14. As Southwestern Bell conceded at oral argument, the record does not permit such a conclusion.
Omnipoint Communications v. Zoning Hearings Board of Easttown Township, Town of Easton, 248 F.3d 101 (3rd Cir. 4/25/2001). Reverses District Court decision that overturned Town's decision to deny application to locate a 110-foot monopole at a synagogue in a residentially zoned area. The height limit for structures in this zone was 35-feet. The District Court had granted summary judgment to Omnipoint based on a finding that the Zoning Hearing's Board was based solely on the negative aesthetic impact of the tower.
The Court of Appeals held that the District Court erred by failing to properly apply Pennsylvania law to Omnipoint's claim that the Township's decision constituted exclusionary zoning. Said the Court, "The District Court in this case correctly observed that `section 332(c)(7)(B)(iii) is not intended to supplant the substantive standards to be applied under state or local law.' ... Accordingly, the first step for the court in a case in which the provider of wireless services is relying upon state or local law is to identify the relevant issues under that law. If those issues require findings of adjudicative facts, the local authority's resolution of the factual issues must be supported by substantial evidence. Otherwise, any conclusion based on those findings violates subsection 332(c)(7)(B)(iii) and cannot stand."
The District Court erred, however, because it failed to give proper weight to the presumption of validity of a zoning ordinance under Pennsylvania law. Said the Court of Appeals:
We hold that the District Court's conclusion is contrary to Pennsylvania law. Residential districts with 35 foot high restrictions are, of course, a common feature of virtually all municipal zoning ordinances. See 2 Anderson, American Law of Zoning (4th ed. 1996) § 39.55 ("The most common provisions limit buildings in single family residential districts to ... a height not in excess of 35 feet."). While such reasonable height restrictions have been justified on grounds other than aesthetics, see id., we are confident that the Supreme Court of Pennsylvania would sustain them as a reasonable means of maintaining the residential character of the neighborhood. Pennsylvania courts have repeatedly held that aesthetic considerations promote the general welfare and thus are sufficient to justify the exercise of a locality's police power to establish zoning ordinances.
Noting that the District Court did not have the benefit of the Third Circuit's decision in APT Pittsburgh v. Penn Township, 196 F.3d 469 (3rd Cir. 1999), the Court of Appeals remanded the matter to the District Court for consideration of Omnipoint's claim that the effect of the Town's ruling was to prohibit the provision of wireless services in contravention to §332 (c)(7)(B)(i)(II). The Court of Appeals reaffirmed the two-prong test that a telecommunications provider must meet to prove such a violation. First, the service provider must show that "its facility will fill an existing significant gap in the ability of remote users to access the national telephone network." Second, it must prove 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."
Telespectrum, Inc. v. Public Service Commission of Kentucky, 227 F.3d 414 (6th Cir. 9/8/2000). Affirms District Court decision granting an injunction ordering the Kentucky Public Service Commission to issue a permit to allow Telespectrum to construct a 199-foot high wireless telecommunications tower on a heavily wooded unzoned parcel of property in rural Carter County, Kentucky. The closest home to the tower was 412 feet away. The Public Service Commission denied the application based on the testimony of the closest homeowners, the Chambers, who expressed concerns about exposure to electromagnetic radiation and a diminution in property values. Both the District Court and the Court of Appeals held that the evidence presented by the Chambers was inadequate to justify a denial of the permit application under the substantial evidence standard.
City of Auburn v. QWEST Corporation, 247 F.3d 966 [Amended Opinion at 2001 U.S. App. Lexis 15519] (9th Cir. 7/10/2001). Affirms District Court decision on relocation cost issue but reverses District Court on ripeness issue. This case is not a wireless siting case. It is a relocation of facilities and local government regulation of right of way case. This case does have important ramifications for local governments regarding wireless telecommunications facilities that are located within public rights of way.
This case began when eighteen Washington cities sued US WEST for declaratory relief. The cities sought a ruling that US WEST was required to pay for the costs of relocating its telecommunications facilities in city rights of way when necessary for public convenience. US WEST asserted that its tariff allowed it to bill cities for such costs. US WEST, in turn, filed a counterclaim against five of the cities alleging that their telecommunications ordinances violated federal and state law. The District Court granted the cities' claim but denied US WEST's counterclaim. The District Court held that the counterclaim was not ripe for adjudication as none of the cities had denied US WEST a permit to work in city rights of way.
On appeal, the Court of Appeals affirmed the District Court's ruling on the relocation issue. Because the Washington legislature had enacted a comprehensive revision to city right of way management authority by enacting a new chapter 35.99 RCW that settled the relocation cost issue prospectively, the Court of Appeals confined its ruling to relocation costs in dispute prior to the new legislation.
The Court of Appeals, however, reversed the District Court on the ripeness challenge posed by the cities to US WEST's counterclaim. The Court held that the claim was ripe for determination. The Court ruled that RCW 35.99 preempted many of the provisions of the cities' ordinances on US WEST's wireline facilities. The Court, however, went on to consider federal preemption of four cities' ordinance under the Telecommunications Act of 1996. The Court held the ordinances went further than was needed by the cities to manage rights of ways. The Court held that many of the specific provisions of the ordinances were preempted under the Telecommunications Act of 1996. Finally, the Court held that the ordinances had to be construed as a whole and that it was impossible to sever the preempted provisions from allowable provisions. Therefore, it struck down these ordinances in their entirety.
B. DISTRICT COURT CASES
Second Generation Properties, L.P. v. Town of Pelham, (unpublished) 2001 U.S. Dist. Lexis 10016 (N.H. 6/27/01). Remanded variance application to Pelham Zoning Board of Adjustment for reconsideration in light of a loosening by the New Hampshire Supreme Court of "unnecessary hardship" standard used in conjunction with determining variances. Second Generation properties wished to build a 250 foot monopole on a 90 acre heavily wooded residentially zoned property. The Town denied the application finding that Second Generation had failed to demonstrate "unnecessary hardship" such that it should be allowed to build a tower outside of the industrial and business zones where such towers are permitted. The standard for proving "unnecessary hardship" applied by the Board was more restrictive than that imposed by the New Hampshire Supreme Court.
American Towers v. Anthony Williams, Mayor of the District of Columbia, 146 F. Supp.2d 27 (D.C.D.C. 6/14/2001). Dismisses federal court claims of American Towers that was issued a building permit to construct a 756 - foot high High Definition Television (HDTV) tower in the District of Columbia. After issuing the building permit with knowledge that the tower height exceeded a Congressionally imposed 600 - foot limit, the District revoked the permit because no "waiver" of the 600 - foot limit was ever formally applied for or granted. A PCS antenna array was going to be attached to the HDTV tower. The District Court said that the PCS facility was only an incidental facility upon the tower and therefore the TCA zoning limitations do not apply to this case. Case remanded to the Superior Court for the District of Columbia where American Towers was free to pursue its $150 million compensatory and $100 million punitive damage claims against the District.
Sprint Spectrum v. Charter Township of West Bloomfield, 141 F. Supp.2d 795 (E.D. Mich. 4/30/2001). Affirms Township decision to deny a special use permit application to construct a 130 - foot high wireless telecommunications tower at the rear of a shopping center. Opponents of the tower submitted a petition signed by 150 residents declaring that the tower would "create a visual eyesore immediately to the west of the subdivision and would have the effect of lowering property values." A resident testified that the tower would "be visible six months of the year as well as disrupt the pristine wooded area.." After Sprint conducted a balloon test at the elevation of the top of the proposed tower, a resident testified that the tower would block the view of a meadow from a neighboring highway. The court held that there was sufficient objective evidence of an adverse aesthetic effect to support the denial of the tower application. The court also held there was sufficient objective evidence of a potential lowering of property values to justify turning down the application. Said the Court, "Indeed, the Kimberly North Improvement Association filed a formal opposition paper, opposing Sprint's application due to diminution of property value, aesthetic concerns and concerns regarding health risks (Item number 10). As to concerns over property values, the paper stated `in other communities where cell phone towers have been erected, expert appraisers have gauged diminution of property values from 10% to 40%.' (Id.). The paper cited and attached various articles from the Microwave News Reprint Service as authority for their position (Item Number 10, sections A,B, & C)."
USCOC of New Hampshire v. Town of Hopkinton, 137 F. Supp.2d 9 (D.N.H. 4/9/2001). Affirmed Town of Hopkinton's decision denying a wireless service provider's application for a waiver and a conditional use permit to build a 150-foot high telecommunications tower on a 114 acre parcel of property. The proposed tower location was not one zoned for wireless towers under Hopkinton's Wireless Telecommunications Facilities District, an overlay zone in the town comprised of all sites located more than 750 feet above sea level as well as municipally owned land. The court found that there was substantial evidence there were other reasonable opportunities existing in other portions of the community for siting of wireless telecommunication facilities to provide service to alleged gaps in coverage along Interstate 89, Route 202/9, and within the western portions of the City of Concord.
The Court characterized the "substantial evidence" test of the TCA as follows:
The TCA's substantial evidence test is a procedural safeguard which is centrally directed at whether the local zoning authority's decision is consistent with the applicable local zoning requirements." [Citation omitted]... The test is highly deferential to the Planning Board, giving the Board `the benefit of the doubt, since it requires not the degree of evidence that satisfies the court that the requisite fact exists, but merely the degree that could satisfy a rational factfinder' [Citation omitted]. Accordingly, the court is not free to substitute its own judgment for that of the local zoning authority, but must determine whether the local zoning authority's decision is based on `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' [Citation omitted].
Applying this standard to the evidence in the record, the Court declined to uphold the Town's decision that the proposed tower would adversely affect property values. The Court found that the evidence was too generalized and speculative to support this finding. It sustained, however, the Town's finding that the proposed site would provide limited coverage within Hopkinton's borders while providing more coverage to the neighboring City of Concord. Said the Court, "Although the evidence does demonstrate that neither Irish Hill nor any other site within the Wireless Telecommunications Facilities District would enable U.S. Cellular to close the portion of its service gap that lies beyond Hopkinton's borders, nothing in the Hopkinton zoning ordinance or in the TCA requires the local zoning authority to permit the construction of a facility within its community in order to service neighboring jurisdictions."
SiteTech Group Ltd. v. Board of Zoning Appeals of the Town of Brookhaven, 140 F. Supp.2d 255 (E.D.N.Y. 3/20/2001). Affirms Zoning Board of Appeal's denial of a special use permit to construct a 150-foot monopole at a shopping center within a J-3 business zone - a location where a communications tower may be situated within the town. Applicant sought to build the monopole with reduced setbacks. The court found that there was substantial evidence to support the Board's finding that the monopole would have a negative visual impact. It refused to sustain, however, the Board's finding that the monopole would impair property values.
The Court affirmed the Board's finding that reducing setbacks for the 150-foot tower to 30 feet was not warranted. Said the court:
That several businesses regularly patronized by local residents were within 30 feet of the proposed monopole supports the BZA's finding. The threat of danger to the public and to these public places of business are not mitigated or eliminated merely because, as plaintiffs contends, there never has been a tower failure in the Northeast or that other failures were less severe than a total failure. And, clearly, plaintiffs do not suggest that the evidence that a monopole could never fail more substantially than `bending a little bit,' such as collapsing or falling over. There was substantial evidence in the record to support the BZA's finding that the 150% setback requirement and 75% reduced setback requirement were not met. Thus, the BZA did not violate the TCA to the extent it found the monopole did not meet the setback requirements.
The court also dismissed plaintiff's claim that the BZA's action constituted an effective denial of personal wireless services. Relying on the Third Circuit's decision in APT Pittsburgh v. Penn Township, 196 F.3d 469 (3rd Cir. 1999), Plaintiffs SiteTech and Sprint argued that they had proven that: (1) their facility would fill an existing significant gap in the ability of remote users to access the national telephone network; and (2) that the manner in which they proposed to fill this significant gap in service is the least intrusive means on the values that the denial sought to serve. Said the court:
A review of the record, however, indicates that the "gap" plaintiffs demonstrated existed was the "gap" in their particular service. Indeed, evidence in the record shows that the area was being serviced by at least two other providers. To establish a violation of § 332(c)(7)(B)(i)(II). It "is necessary for the provider to show more than that it was denied an opportunity to fill a gap in its service system." APT, 196 F.3d at 480. Moreover, as the Second Circuit stated in Willoth, "once an area is sufficiently serviced by a wireless service provider, the right to deny applications becomes broader. State and local governments may deny subsequent applications without thereby violating subsection B(i)(II)." Willoth, 176 F.3d at 643. Thus, plaintiffs demonstration of a gap in their particular service did not obligate the BZA to approve their application.
Bell Atlantic Mobile v. Zonings Hearing Board of Butler Township, 138 F.Supp.2d 668 (W.D.Pa. 3/28/2001). Dismissed claims brought by a wireless telecommunications services provider disputing conditions imposed by the local zoning board on a possible expansion of an existing cellular tower. Court held that the claims were not ripe for determination as no permit application for expanded use of the tower was pending. Remanded to State court a private citizen's claim that the 1997 Zoning Hearing's Board action violated state law. This claim had been removed to federal court by Bell Atlantic. The court found that there was no federal intent to completely preempt local decision making about zoning telecommunications facilities. Since on its face the private citizen's claims did not involve a federal question, the matter must be remanded. The Court opined, however, that Bell Atlantic had preserved its right to contest in federal court a denial of a permit to modify the telecommunications facilities if that eventually occurred.
Chief Cushing Highway Corporation v. Limbacher, et al., 145 F.Supp.2d 108 (D.Mass. 3/9/2001). Dismissed lawsuit brought by landowner whose property was located contiguous to an approved site where a wireless telecommunications facility was to be built. Defendants, the local towns zoning board and Omnipoint Communications, removed the claim to federal court. The court found that the zoning hearings board had approved Omnipoint's permit application as a result of a former lawsuit wherein the Court found a violation by the Town of the TCA. Relying upon Brehmer v. Planning Board of the Town of Wellfleet, 238 F.2d 117 (1st Cir. 2000), the court dismissed the action stating, "Here, Plaintiff's appeal under the [Massachusetts] Zoning Act directly interferes with the TCA. The complaint seeks annulment of a Planning Board decision made pursuant to this court's Judgment, which was based on the TCA."
Pennsylvania Cellular Telephone Corp. v. Zoning Hearings Board Buck Township, 127 F. Supp.2d 635 (M.D.Pa. 1/17/2001). Affirms Zoning Hearings Board decision denying an application to site a 180-foot wireless telecommunications in a R-1 zone. The court held that the question of whether or not a tower was a permitted use within an R-1 zone was a matter of local government interpretation of its own ordinances. This is not the type of an issue that requires substantial evidence in a written record. The Court remanded, however, to the ZHB Plaintiff's claim that the denial of its permit application has the effect of prohibiting the provision of personal wireless services. The remand was based on similar remands granted by the Third Circuit in APT Pittsburgh v. Penn Township, 196 F.3d 469, (3rd Cir. 1999) and Cellular Telephone v. Zoning Board of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64 (3rd Cir. 1999), wherein the Court of Appeals did not want to decide the issue of the preclusion of personal wireless services without an adequate factual record.
Sprint Spectrum, L.P. v. Mills, 124 F.Supp.2d 211 (S.D.N.Y. 12/20/2000). Grants a permanent injunction against the Ossining Union Free School District enjoining it, and all other persons who have knowledge of the injunction, from preventing Sprint from operating a wireless telecommunications facility located on the roof of the Ossining High School at a RF emission power level other than what the FCC allowed. The School District sought to have Sprint operate the facility at a signal level 13,000 times below the applicable federal standard. The court found that the level of RF emissions from personal wireless facilities is completely preempted by federal law and that the District and Sprint could not contract for a wireless telecommunications facility lease with a lower power level.
Laurence Wolf Capital Management Trust v. City of Ferndale, 128 F. Supp.2d 441 (E.D.Mich. 12/18/2000). Affirms Board of Zoning Appeals decision denying a permit application to site a wireless facility atop a commercial building. The Court first considered the issue of which party has the burden of proof in matters of challenge and appeal under the TCA. Noting that this was a matter of first impression in the jurisdiction and that the Act "contains no provision explicitly assigning the burden of proof in matters of challenge and appeal," the court sided with the majority position that the burden of proof rests with the municipality that denies a wireless telecommunications siting application. The court sustained the Board's decision citing the evidence that the wireless carrier could have located the facility at another site. AT&T had admitted that another option was to file an application to build a new tower in a district zoned for wireless antennas. This fact supported the Board's conclusion that "no unique circumstances existed that would allow the use requested by AT&T."
Patterson v. Omnipoint Communications, 122 F. Supp.2d 222 (D. Mass. 11/21/2000). This is a related case to Chief Cushing Highway Corporation v. Limbacher, et al., 145 F.Supp.2d 108 (D.Mass. 3/9/2001) discussed above. It involves the same local planning board, the same wireless telecommunications facility and the same wireless service provider. In this case, ten residents of the towns of Scituate and Cohasset, Massachusetts, sued members of the zonings board, the Scituate Building Inspector and Omnipoint alleging that the Town erred in entering into a Consent Agreement in federal court whereby the town would grant an application for Omnipoint to build a wireless telecommunications facility. The Court held that Plaintiff's claim that the town should have invoked a new public hearing and provided a new notice under Massachusetts' Zoning law was barred by the TCA. Said the court:
Here, federal preemption of the zoning procedures is proper. Congress enacted the TCA pursuant to its power to regulate interstate commerce, specified limits on local zoning boards, and provided for judicial review as an expeditious means to remedy violations. Moreover, case law supports injunctive relief in the form of an order to issue a special permit. Forcing the Planning Boards to open up to public debate the issue of whether to obey a judicial order, therefore, would `stand as an obstacle to the full accomplishment' of judicial remedy as an expeditious response to a TCA violation.
New York SMSA Ltd. Partnership. v. Town of Riverhead, 118 F.Supp.2d 333 (E.D.N.Y. 10/24/2000). Dismissed telecommunications provider's complaint that a town's decision to require a full EIS on an application to permit construction of a 62-foot monopole on a 1200 square foot leased area that was part of an 89.5 acre parcel owned by the Boy Scouts and operated as a summer camp. According to the carrier, the site was surrounded with forty to fifty-five feet tall trees. In light of complaints about the visual impact of the monopole, the town decided that a full EIS was required. Verizon Wireless sued in federal court asserting that the decision to invoke a full EIS constituted an unreasonable delay (effectively a full year delay) in processing the permit application in violation of the TCA. The district court declined to find that invocation of New York's State Environmental Quality Review Act EIS requirements constituted an effective denial of the application. Nor did invoking the Act constitute unreasonable delay under the TCA.
SBA Communications v. Zoning Comm. of the Town of Brookfield, 112 F.Supp.2d 233, (D. Conn. 9/26/2000). Affirmed Zoning Commission's decision denying permit application to construct a 93.5-foot high wireless telecommunications facility in an industrial zone. The nearest residential district was approximately 1,000 feet away from the proposed tower. The court affirmed the Zoning Commission's decision because there was substantial evidence to support the Commission's finding that the applicant failed to exhaust its co-location alternatives. The court cited the administrative record evidence that the applicant failed to investigate the possibility of co-locating on CL&P lattice towers.
The court noted that there was a dispute over who had the burden of proof on an appeal of a denial of a siting application. In light of the provider's admission that they had not investigated co-locating on the CL&P towers, it was not necessary to decide who had the burden of proof because no matter who had the burden, the result would be the same. The court did not sustain, however, the Commission's findings regarding a diminution in property values saying that the evidence was only generalized concerns, inadequate to withstand the expert testimony brought forth by the applicant.
Nextel Communications of the Mid-Atlantic, Inc v. Manchester-by-the-Sea, 115 F. Supp.2d 65 (D.Mass. 8/22/2000). Reversed city Planning Board decision denying special permit application to construct an 80-foot tower designed to look like a ship's mast in a boatyard in Manchester Harbor. The tallest ships moored at the boatyard had masts reaching 75 feet in height. The court found that, "In essence, the evidence before the Planning Board was that eleven residents objected based on aesthetics, either orally, in letters, or in telephone messages to the Planning Board. [Citation to record omitted]. In addition, eleven people signed a one-line petition giving no reason for their objection to the proposed tower." The court found that this did not constitute substantial evidence to justify a denial of the permit.
Powertel, Inc. v. Indiana Board of Zonings Appeals, (unpublished) 2000 U.S. Dist. Lexis 12214 (S.D.Ind. 8/14/2000). Grants summary judgment to Clark County Board of Appeals because Powertel did not have standing as a matter of Indiana law to seek the zoning variance application. Powertel wished to build a 260-foot tower on top of a hill to help provide coverage for wireless communications in the greater Louisville area. Powertel, however, did not own the land on which it wished to build the tower. Powertel merely had an option to lease the land. Under Indiana land use law, this was inadequate to give standing to file a zoning variance permit application. The court rejected Powertel's claim that the TCA preempted Indiana law on the standing issue.
Omnipoint Communications v. Town of Lincoln, 107 F. Supp.2d 108 (D.Mass. 8/2/2000). Affirmed the Zoning Board of Appeals decision denying an application to build an 89-foot monopole at a site outside of one of the sites authorized for wireless facilities under the town's wireless communications facilities overlay district. However, the court ordered the town to issue the permit because the service provider proved that there was a significant gap in wireless service coverage in the town and there was no way that a carrier could fill that significant gap by actually siting facilities at the approved sites. The town's policies had the effect of prohibiting the provision of personal wireless services.
APT Pittsburgh v. Lower Yoder Township, 111 F. Supp.2d 664 (W.D.Pa. 7/24/2000). Affirms township's decision denying APT's application to construct a 164-foot tower on property leased from a water district. Court held that the township properly denied the permit. The area APT leased was not zoned for telecommunications towers. Such towers could be sited in the "L" zone of the township. The court determined that APT failed to prove both that there was a significant gap in wireless telecommunications service coverage in Lower Yoder and that the proposed tower was the least intrusive means to service that area.
CONCLUSION
Federal court decisions reviewing local government decisions regarding efforts to site wireless telecommunications facilities are intensely fact and local law specific. Five years after the enactment of the TCA, local governments and service providers still are unable to reliably predict whether or not a decision to grant or deny a particular siting application will be upheld on an appeal to the federal courts. This inevitably leads to great frustration for the wireless service providers who are under federal licensing requirements to build out their networks. Such frustration leads to state legislative pressure to restrict the decision-making authority of local governments - an occurrence that has been witnessed in the State of Washington.
Given the uncertain standards imposed by the TCA, the lack of available funds for local planning, and general community hostility to wireless telecommunications towers, there is little incentive for local governments to plan effectively for wireless telecommunications services. Wireless facilities will continue to be treated in a manner similar to the way many local jurisdictions treat adult entertainment uses. Because there is a risk that a court will say that the use must be allowed somewhere in the local jurisdictional boundaries, cities, towns and other local governments will reluctantly set aside some disfavored sites where the use may exist. As many local roadblocks as can lawfully be established to discourage the use will also be interposed.
FOOTNOTES
2 Tim Sullivan is the City Attorney for University Place, Washington. A frequent presenter at CLEs on wireless telecommunications and right of way management issues, Tim is active in the Rainier Communications Commission (RCC), the Washington State Association of Municipal Attorneys (WSAMA), WATOA and NATOA. Tim currently chairs the legislative committee for WATOA and works on telecommunications and right of way management legislative issues for WSAMA and the Association of Washington Cities. He can be reached at TSullivan@ci.university-place.wa.us. Any opinions expressed herein are personal and do not reflect the views of the City of University Place, its elected officials or officers.
3 Previous telecommunications presentations are available by e-mail upon request.