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Zoning and Land Use Planning Law: The Telecommunications Act of 1996 and Local Government Control O

August 20, 1998

On July 31, 1996, Sprint Spectrum L.P., a cellular telephone company, submitted two applications to the town board of West Seneca, New York, seeking permission to construct two telecommunications towers; about 10 days later, the company submitted a third such application. Sprint's filings were made pursuant to § 120-7 of the code of the Town of West Seneca, which requires the town board's approval for utility-related construction./1 For reasons that it never made clear, the town board did not officially consider these applications or place them on any of its meeting agendas. On September 23, 1996, the town adopted an amendment to its zoning ordinance that postponed all action on applications for communications towers for 90 days; i.e., it adopted a de facto moratorium. Sprint filed suit in a state court in New York challenging the aforesaid moratorium. It argued that the town's actions with respect to its applications for permission to construct the towers violated the federal Telecommunications Act of 1996./2 The court agreed. In its decision, the court ruled that the moratorium violated several provisions of the Telecommunications Act, specifically the provision that required the town to act on Sprint's requests for permission to place its facilities within a reasonable time,/3 the provision that the town must deny such permission only in writing and when supported by substantial evidence,/4 and the provision that the town may not enact regulations that have the effect of prohibiting personal wireless services./5 The law effectively shifts the burden on applications from the applicant to the municipality, which must prove by substantial evidence why a denial is necessary. Accordingly, in West Seneca, the court ordered the town board to consider Sprint's applications under the public utility provision of the town code at its next meeting irrespective of the moratorium./6 Taking a radically different view, in Sprint Spectrum, L.P. v. City of Medina, a federal district court in Washington held that the Telecommunications Act had no effect on the power of local governments to impose moratoria on the issuance of permits for cellular communications towers./7 In that case, five days after the Telecommunications Act became law, the City Council of Medina, seeking time to deal with an expected flurry of applications, adopted a six-month moratorium on the issuance of new special use permits for wireless communications facilities. The district court held that the city's moratorium was "not a prohibition on wireless facilities, nor does it have a prohibitory effect." Rather, the court stated, it was a "short-term suspension of permit-issuing while the City gathers information and processes applications." According to the court, nothing in the record suggested that the moratorium was anything other than "a necessary and bona fide effort to act carefully in a field with rapidly evolving technology." At least one other court that has faced a challenge to a moratorium has ruled that such a moratorium is inappropriate. In Sprint Spectrum, L.P. v. Jefferson County,/8 a federal district court in Alabama distinguished the facts before it, involving a moratorium issued by the Jefferson County Commission, from the facts in City of Medina. The Alabama court noted that the City of Medina had issued its moratorium only five days after the Telecommunications Act had become law, while the county commission had issued a moratorium about 15 months after the act had become law. The Alabama court noted that the Jefferson County Commission had not offered a legitimate reason for not processing applications under existing regulations while it was considering new amendments to the zoning ordinance. Indeed, the Alabama court stated, the Jefferson County Commission's actions "more closely resemble those of the West Seneca Town Board" than of Medina. The Alabama court accordingly ruled that the Jefferson County Commission had failed to comply with the Telecommunications Act. These cases indicate that a moratorium enacted at this late date in order to enable local governments to comply with the two-year-old federal statute most likely will not be sustained absent extraordinary circumstances because local governments have had the opportunity to adopt regulations for over two years. Reduced Regulation The Telecommunications Act of 1996 was signed into law by President Clinton on February 8, 1996, and became the first major revision of the federal telecommunications laws in more than 60 years. In view of rapidly changing technology and the growth of the wireless communications industry -- ranging from cellular telephones and paging services to personal communications services products -- the law certainly was needed. In the Telecommunications Act, Congress quite clearly indicated that it favored reduced regulation and increased deployment of new communications technologies./9 One of its targets was the regulation of cellular antenna towers by local governments, especially under local zoning ordinances,/10 although it should be emphasized that the Telecommunications Act, recognizing the threshold jurisdiction of local government in land use, leaves the issue of cell tower sitings to be decided first by local land use authorities, before the courts can be involved./11 Certainly, Congress did not intend that the Telecommunications Act would preempt all local zoning authority with respect to cellular towers./12 As the West Seneca case indicates, however, the Telecommunications Act significantly affects local government's zoning authority with respect to cellular towers. Significantly, a federal court in New York, in Lucas v. Planning Board of Town of LaGrange,/13 has ruled that the Telecommunications Act preempts local governments from considering the New York State Environmental Quality Review Act (SEQRA) in connection with applications for permits to construct cellular towers -- even though SEQRA has broad ramifications and government agencies must consider its implications and provisions when approving any proposed governmental actions./14 The issue has not been ruled on by New York State courts, who jealously and zealously enforce SEQRA regulation against all levels of government in New York, including the State itself./15 Permits Requested The Lucas case arose in April 1997, when the Orange County-Poughkeepsie MSA Limited Partnership, doing business as Bell Atlantic Mobile, and Cellular One applied independently to the Town of LaGrange, in upstate New York, for the necessary permits and approvals to construct two separate telecommunications towers. Bell Atlantic applied for the permits necessary to erect a 125-foot tower at a site that it called the Freedom Plains Site, located in the Town of LaGrange. Cellular One applied for the permits required to erect a 180-foot tower at a different nearby site, also in the Town of LaGrange. Both Bell Atlantic and Cellular One are licensed to provide cellular telephone service in the area by the Federal Communications Commission. At the time of the Bell Atlantic and Cellular One applications, the only cellular facility existing in the Town of LaGrange was a single 150-foot tower, erected by Bell Atlantic with the town's approval in 1987, and located on Industry Street. The new Bell Atlantic and Cellular One applications were based on objective radio frequency calculations that demonstrated that the cellular coverage provided by the existing tower was inadequate for the town as a whole. The town board, planning board, zoning board, and town planner and zoning administrator all were involved in considering the two new independent tower proposals. From the outset, the town presumed that the companies' applications would bring SEQRA into play. The visual impact of a proposed project is one of the environmental factors that is properly considered within the SEQRA process./16 In this case, in response to the initial applications by Bell Atlantic and Cellular One, the town invoked its SEQRA obligations to indicate that its preference was for a single common tower on which both Bell Atlantic and Cellular One would fix their antennae. After a period of consultation with all parties, the companies agreed to propose a single tower with a height of 180 feet at Bell Atlantic's Freedom Plains site. In preparation for that proposal, Bell Atlantic conducted a balloon test to ascertain the visual impact of constructing such a tower. Bell Atlantic also created a "visual study" that included a cross section analysis of where the tower would be visible, five photographs from five key view points in the town with computerized photo-realistic simulations of the proposed 180-foot tower, a viewshed map, identification of the distance from the tower to the key locations indicating the character of the visual impact, and a description of the land uses in the area where the tower would be visible. On the basis of this analysis, Bell Atlantic concluded that "all significant views [of the tower] in the foreground range (0-1/4 mile) [would be] blocked by vegetation and/or topography." Apparently, at some early point in the process, the town determined to oppose the construction of the tower under all circumstances. It undertook its own independent study and the planning board issued a positive SEQRA declaration, meaning that SEQRA was implicated and that the siting of the tower as proposed might have a significant adverse environmental impact. The town also adopted a moratorium that suspended all permits for telecommunications facilities without regard to the merits of the application. In response to the positive SEQRA declaration and the moratorium, Bell Atlantic initiated an action against the town, in which Cellular One intervened. Together, the companies sought mandamus relief pursuant to the Telecommunications Act and an order compelling the town to issue all necessary permits for the construction of the tower. Essentially, the companies asserted that the town had not complied with the Telecommunication Act's provision that requires local municipalities to act on a carrier's request for permission to place its facilities within a reasonable time; the provision that a municipality must deny such permission only in writing and only where that determination is supported by substantial evidence; and the provision that the town may not enact regulations that have the effect of prohibiting personal wireless services -- the same provisions of the law involved in the West Seneca case. The parties resolved their differences and entered into a consent judgment that modified the companies' applications to the planning board and the zoning board to provide that the height of the tower would be 129 feet rather than the 180 feet originally proposed. In exchange, the town agreed to exempt the companies from the local law moratorium. The consent judgment also rescinded the positive declaration under SEQRA and the planning board issued a negative declaration. The court approved the consent judgment and the town issued permits necessary for construction of the tower. Following those actions, owners and residents of certain properties in the Town of LaGrange that were either adjacent to, in close proximity to, or within the view of the tower site and who believed that the tower would have an adverse effect on their property values brought a lawsuit. The plaintiffs contended that in adopting the consent judgment, the town had failed to adhere to the procedures required by SEQRA, violated the substance of SEQRA, deprived them of due process in violation of 42 U.S.C. § 1983, and denied them equal protection in violation of § 1983. The court took little time in dismissing these claims. In its decision, it noted that the town's opposition to the tower had "rested on very tenuous legal grounds." It then stated that the plaintiffs could not state a claim for what at most might be technical violations of SEQRA's procedural requirements, where, as in this case, "those requirements are preempted by federal law in the form of the Federal Telecommunications Act." The court recognized that the Telecommunications Act did not completely preempt the authority of state and local governments to make decisions regarding the placement of wireless communications facilities within their borders./17 It added, though, that the law "quite clearly" preempted any state regulations that conflicted with its provisions./18 According to the court, tying up Bell Atlantic and Cellular One in the SEQRA "hearing process" was "precisely" what the plaintiffs' invocation of SEQRA's procedures sought to achieve. The court pointed out, however, that Bell Atlantic and Cellular One had applied for the permits necessary to construct their telecommunications facilities in April 1997. In response, the town had engaged in what the court characterized as a "lengthy series of delaying tactics, which included adopting the patently invalid local law moratorium." The court then ruled that the plaintiffs' claims that were founded on the town's alleged departures from SEQRA procedure were "without merit." Under the circumstances of this case, the court held, the procedures relied on by the plaintiffs were preempted by the Telecommunications Act. The court concluded by declaring that the plaintiffs were "simply unaware or unwilling to acknowledge the practical limitations" imposed by the Telecommunications Act on a town's ability to prohibit, or otherwise circumscribe, the development of telecommunications facilities that serve the public./19 Site Plan Approval Both cellular providers and local governments should keep in mind that the provisions of the Telecommunications Act do not remove all power from local governments to regulate cellular towers. A recent decision by the United States District Court for the Western District of New York,/20 involved an action against the planning board of the Town of Ontario, New York, by Sprint Spectrum, L.P., which had an exclusive license from the Federal Communications Commission to provide digital personal communications services ("PCS") for the Buffalo Major Trading Area ("MTA"). Sprint had paid $19 million for this ten-year FCC license, which required it to provide PCS service to at least one-third of the population in the Buffalo MTA within five years of the issuance of its license. Sprint maintained that, to provide continuous uninterrupted service, it had to develop an interconnected network of "cell sites" (i.e., antennae mounted on a pole or other structure) to provide overlapping coverage in a grid pattern. The coverage area provided by each antenna depended on the height of the antenna, density of the population, and local topography. Sprint filed three separate applications for site plan approval to construct cell sites. Sprint's applications sought individual permits to erect a 150-foot tall steel-gray "monopole" cell tower on each site. Sprint provided the planning board with simulated photos showing the proposed towers both with foliage on the surrounding trees and without foliage, as requested by the town. Sprint also completed detailed Draft and Final Environmental Impact Statements, which included computer-generated maps showing the proposed service areas at the town's request, as provided by the New York SEQRA law. The planning board denied all three applications on its findings that the Sprint project would have "a measurable and significant impact on property values"; the "cumulative impact of multiple towers would have a significant environmental impact on the Town of Ontario"; and there would be "visual impact from any tower that is visible over a wide area." The board's main concern was apparently Sprint's unwillingness to consider alternatives (or indeed even to provide the town with information about alternatives) with respect to the number, height, and placement of cell towers. Sprint had made a business decision that the town should be classified as "suburban" and, thus, that a signal strong enough for "in-building" coverage was required. Accordingly, Sprint insisted on the approval of all three towers as being necessary to provide adequate (i.e., "in-building") coverage to the area it sought to service. The planning board found that the town was similar to other towns that Sprint had classified as "rural," that it should have been classified as "rural," and that one tower would be sufficient. Sprint disputed the town's authority to challenge its business decision regarding the level of coverage it decided to provide, and it filed suit. Sprint argued that the question of adequacy of service in determining the number of towers necessary was not a permissible area of inquiry by the town. Sprint insisted that the court's inquiry was limited to whether the town's action in denying all three site plans was "supported by substantial evidence contained in a written record."/21 The court stated that the central issue was whether the town had exceeded its authority in denying Sprint's application for three cell towers on the basis that Sprint's evidence demonstrated that a single tower could adequately perform the function necessary to provide the desired level of service to its cellular customers. According to the court, the issue exemplified the tension between the competing interests of local home rule and the implementation of the Telecommunications Act. On the one hand, it noted, the power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities./22 However, it added, a local government's power to regulate land use is not unlimited, especially with respect to "personal wireless services facilities" (i.e. cell towers), given that cellular service facilities are entitled to special zoning considerations under the Telecommunications Act./23 The court then found that the town's decision denying Sprint's applications for three site plan approvals was supported by "substantial evidence in a written record." In the court's view, the town was within its authority in considering alternatives to Sprint's proposed placement of three towers. It found that Sprint's status as a utility did not grant it carte blanche authority to dictate the number and location of cell towers in any locality. According to the court, although it has long been held that a zoning board may not exclude a utility from a community where the utility has shown a need for its facilities, "this has never meant that a utility may place a facility wherever it chooses within the community."/24 The court rejected Sprint's contention that, as a utility, it had the exclusive authority to determine the number of cell towers necessary to provide the desired level of service to the town and the surrounding communities. The court said that the more traditional public utilities, such as electric, gas and telephone, are heavily regulated by the Public Service Commission or the Federal Communications Commission and are regarded as monopolies subject to intensive administrative regulation. The court noted, though, that the FCC "does not regulate cellular providers to the same extent." The court then declared that localities "are still left to determine the location and number of towers needed to provide adequate service to their residents."/25 Accordingly, the court held, by enacting the Telecommunications Act, Congress did not intend to preempt the authority of state and local governments to regulate the location of cell towers within their communities. As a result, the planning board did not exceed its authority in considering whether adequate service could be provided with fewer than three towers, the court said. Although considerations of the "level of service" as such was not a specific factor listed in the applicable N.Y. Town Law or in the Town of Ontario Zoning Ordinance, the court ruled that the town was nonetheless authorized to consider whether alternative sites were available for a public utility's facility that could provide safe and adequate service./26 The court found that the town had shown by substantial evidence that Sprint could provide the "in-building" level of service to the town with sufficient overlap of coverage to neighboring towns by erecting only one centrally located tower. Evidence in the record that supported the town's decision included computer-generated diagrams prepared and submitted by Sprint that showed the comparative areas of "in-building" coverage achieved with Sprint's proposed three towers as opposed to the town's single, centrally-located 250-foot tower in an industrial zone. In conclusion, the court stated that the planning board's denial of site plan approval for Sprint's proposed three towers was supported by substantial evidence in a written record. The town had made specific written findings after having conducted no less than nine lengthy meetings or hearings on Sprint's applications. Those findings were based on the evidence submitted to the planning board by Sprint and by other interested parties that supported the conclusion that the proposed towers would have a cumulative economic, environmental, and visual impact on the town. Although Sprint was entitled to deference, as a public utility, to locate a cellular facility in the Town of Ontario, "it is not entitled to dictate the number and placement of those facilities." The court then granted the town's motion for summary judgment and dismissed the complaint. Conclusion Local governments have a variety of different actions they can take in response to a cellular provider's requests for authorization to construct cellular towers, ranging from merely accepting the provider's demands to working with the provider to reach a middle ground and amending their zoning ordinances in an effort to have more influence on the sitings and characteristics of the towers. An amended zoning ordinance should reflect the Telecommunications Act and its requirements, balancing the need to prevent uncontrolled proliferation of towers with the right of citizens to use those services and the right of businesses to sell them. Local governments also should make certain that their zoning ordinances do not unreasonably discriminate against providers of functionally equivalent services and do not prohibit or have the effect of prohibiting cellular services. They also may want to consider special provisions dealing with cellular towers; designating an official to work with providers and to determine where towers might be acceptable. In addition, they should make certain that building codes contain appropriate requirements, keeping in mind issues such as wind speed and local soil conditions. The Act gives the FCC, not local governments, authority to set standards for radiofrequency emissions, but local governments can consider certain safety issues, such as those relating to height and setback requirements. Local governments also can consider aesthetics; some communities, for example, require providers to paint their cell towers a certain color or even to camouflage them. Local governments also may want to consider requiring providers to maximize use of existing towers or to co-locate with other providers. Whatever they decide to do, it is clear that the Telecommunications Act is another federal incursion into home rule. However, although Congress has shifted the power toward the cellular industry, local governments are not powerless in this area. Local governments that have updated their zoning ordinances, conducted appropriate studies, and rely on thoughtful legal advice will find themselves in the best position to respond to, and work with, the wireless communications industry, which has been given a preferred status by the federal government and by some state courts. John M. Armentano, a partner with the Long Island law firm of Farrell Fritz, P.C., represents local governments and developers in zoning, land use and environmental matters, including litigation. NOTES: 1. Section 120-7 of West Seneca's town code provides in part that "the regulations of this chapter shall not be so construed as to limit or interfere . . . with the construction, installation, operation and maintenance for public utility purposes of water or gas lines, mains or conduits, electric light or electric power transmission lines, . . . subject, however, to the prior approval of the Town Board as to location, type of structure and effect upon adjacent properties and subject also to the regulations provided in M-1 and M-2 Districts." 2. Pub.L. 104-104. 3. See 47 U.S.C. § 332(c)(7)(B)(ii), which provides in pertinent part that "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." 4. See 47 U.S.C. § 332(c)(7)(B)(iii), which provides in pertinent part that "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." 5. See 47 U.S.C. § 332(c)(7)(B)(i), which provides in pertinent part that "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 6. Sprint Spectrum, L.P. v. Town of West Seneca, 659 N.Y.S.2d 687 (Sup.Ct. Erie Co. 1997). 7. Sprint Spectrum, L.P. v. City of Medina, 924 F.Supp. 1036 (W.D. Wash. 1996). 8. Sprint Spectrum, L.P. v. Jefferson County, 10 Comm. Reg. (P&F) 294 (N.D. Ala., 1997). 9. See Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997). 10. Although different kinds of wireless communications technologies require different kinds and heights of towers, this column will generally refer to "cellular towers" in all circumstances. 11. See, e.g., Omnipoint Communications, Inc. v. Zoning Hearing Bd. of East Pennsboro Township, 1998 U.S. Dist. Lexis 3789 (M.D.Pa. Mar. 24, 1998). 12. See Sprint Spectrum, L.P. v. Town of Farmington, 1997 U.S. Dist. Lexis 15832 (D.Conn. 1997); BellSouth Mobility, Inc. v. Gwinnett Co., Georgia, 944 F.Supp. 923 (N.D.Ga. 1996). See, also, 42 U.S.C. § 332(c)(7), which provides, inter alia: "(c)(7) Preservation of Local Zoning Authority. (A) General Authority. Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government . . . over decisions regarding the placement, construction, and modification of personal wireless service facilities." 13. 1998 U.S. Dist. LEXIS 7538 (S.D.N.Y. May 19, 1998). 14. See 6 N.Y.C.R.R. § 617.1; ECL 8-0103, subd. 7. 15. See, e.g., In the Matter of Village of Westbury v. Dep't of Transp. of State of N.Y., 75 N.Y.2d 62 (1989); Jackson v. N.Y. Urban Devel. Corp., 67 N.Y.2d 400 (1986). 16. See WEOK Broadcasting Corp. v. Planning Board of the Town of Lloyd, 79 N.Y.2d 373 (1992). 17. See, e.g., BellSouth Mobility, Inc. v. Gwinnett Co., 944 F.Supp. 923 (N.D.Ga. 1996). 18. See, e.g., Sprint Spectrum L.P. v. Town of Easton, 982 F.Supp. 47, 50 (D.Mass. 1997); see also Paging, Inc. v. Board of Zoning Appeals for County of Montgomery, 957 F.Supp. 805, 808 (W.D.Va. 1997) (federal interest in wireless communications take priority over state zoning authority). 19. It should be noted that in footnote 10 to its decision, the court stated that there could be "little doubt" that under the Telecommunications Act "ultimately the permits for some sort of tower would have been issued, whether on consent, or after litigation." 20. Sprint Spectrum, L.P. v. Willoth, 1998 U.S. Dist. LEXIS 2143 (W.D.N.Y. Feb. 19, 1998). 21. 47 U.S.C. § 332(c)(7)(B)(iii). 22. See Schad v. Borough of Mount Emphraim, 452 U.S. 61, 68 (1981). 23. The court also noted that cellular service facilities are entitled to special zoning considerations under New York law, which has classified cellular providers as "public utilities." See Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364 (1993). 24. See Matter of Consolidated Edison v. Hoffman, 43 N.Y.2d 598, 610 (1978). 25. See Consolidated Edison of New York v. Hoffman, 43 N.Y.2d 598 (1978). 26. See Niagara Mohawk Power Corp. v. Fulton, 188 N.Y.S.2d 717 (4th Dep't 1959) ("In determining the reasonable necessity of a particular site, consideration must be given to the availability of other sites and to the degree of detriment that might be caused by the various sites").

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