Law/Legal:
Town Can Reject Cell Phone Towers

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Posted:
22 February 2001
LAWYERS WEEKLY USA
 
December 13, 1999  Cite this Page: 99 LWUSA 1105
 
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). Click here to order this opinion.

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). Click here to order this opinion.

To order a copy of either opinion, call 800-933-5594.




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