Common Regulatory Issues In Siting Personal Wireless Services
Stanley D. Abrams, Esq. and Cathy G. Borten, Esq.	© & Author Info

Abstract

The siting and approval of personal wireless service facilities presents unique problems to local government regulators, the wireless service industry and the general public. This outline highlights the more common issues of height, multiplicity, compatibility, safety and other concerns regarding the approval of monopoles and towers associated with these facilities. Also referenced are a number of current federal court decisions which relate to requirements imposed on local government decisions applicable to these facilities under the federal l996 Telecommunications Act.

Introduction

The explosive growth of the use of cellular telephones, paging devices and other personal wireless services is posing land use regulatory problems for local governments, wireless services carriers and residents of local communities. The most perplexing problem is how to deal with various issues associated with the placement of monopoles, towers, antennae and equipment buildings associated with these uses. These issues involve: height, multiplicity or saturation effects, compatibility and visual perception concerns, safety, and environmental considerations.

These issues, as well as the administrative regulatory procedures and decisions must all work within the limitations of the l996 Telecommunications Act ("the Act"), which effectively states that state and local governments' regulations and decisions cannot:

(l) Prohibit or have the effect of prohibiting the provision of personal wireless services (PWS)

(2) Discriminate among functionally equivalent services

(3) Prohibit or inhibit any request to construct or modify PWS facilities beyond a reasonable period of time after the request is made

(4) Regulate these facilities on the basis of environmental effects of radio frequency emissions if they comply with FCC guidelines.

The Act also requires that any decision to deny a PWS facility must be in writing and be supported by substantial evidence contained in a written record.

This paper will address in outline form some of the more common considerations which are experienced and provide some time-tested responses. Also included is a summary of recent federal court decisions which had addressed claims raised by wireless service carriers in contesting regulations and decisions of local authorities.

Common Regulatory Issues:

HEIGHT–How high do these facilities have to be?

(1) Height is a determinant of coverage–the taller the PWS facility, the greater the coverage area.

• Monopoles (90'-l99') provide a circular pattern (i.e., cell site), covering approximately up to 2.5 miles

• Lattice or guyed towers are generally over 200' in height and have greater area coverage

• PCS or other low power services do not need great height. They need smaller distance separation, and therefore, greater numbers of wireless facilities

(2) Coverage and capacity are separate needs.

• Coverage involves geography and is more important in rural and newly serviced areas

• Capacity is established in high volume areas and involves systems operations

(3) Appearance and height can be mitigated by:

• Placement of antennae on existing tall buildings or structures

• Placement of shorter PWS facilities on high topography

• Placement in forested or treed areas which will conceal lower levels of monopole or tower.

DENSITY/MULTIPLICITY–How many will be needed?

(l) Local government choice–heights vs. numbers

• Fewer tall towers or monopoles

• Establish regulations that require co-location

• Recognize that antennae need l0'-20' vertical separation between antennae array

• Greater number of shorter monopoles

• Establish distance requirements between monopoles/towers to eliminate the presence of "antenna farms"

• RF requirements also need distance between monopoles

(2) Local governments can establish requirements that in coverage area, carrier seek space for antennae on existing tall buildings and structures (i.e., other towers/poles, water tanks, lighting standards, church steeples, billboards)

• These locations accommodate wall or roof mounted antennae

(3) Local government should establish a technical committee or retain an independent RF engineer to review special exception, conditional use, building, and other permits

• Require as part of your regulations creation of a technical committee or consultant, and submission to committee/consultant of all approval requests (i.e., review technical requirements of carrier and site)

• Determine that no other suitable existing buildings/structures are available. They look for co-location opportunities to reduce the number of sites

• Provide technical advice to reviewing regulatory agencies (board of zoning appeals, municipal contracting agencies) and local municipal councils (additional legislation or regulations)

• Start a database of existing facilities locations (aids carriers and reduces multiplicity of alternative existing sites available)

• Require submission of computer generated coverage maps

• Require submission of maps/plans for projected l-2 year needs

COMPATIBILITY AND VISUAL PERCEPTION CONCERNS

(l) Require placement of antennae on existing mid/high rise buildings, water tanks, telecommunications/light poles, if feasible from an engineering standpoint, and if available, to eliminate necessity of constructing new monopoles and towers

(2) Encourage location of monopoles/towers within wooded areas, parks or remote locations on sites away from existing residences

(3) Prohibit lighting except where required by federal legislation

(4) Provide appropriate setbacks and opportunity for waiver of setbacks to locate in more concealed locations on site

(5) Impose coloration requirements and restrictions on lighting (not inconsistent with FAA requirements)

(6) Encourage the use of concealed facilities ("stealth technology")

(7) Presentation exhibits–photographs of balloon test, computerized enhancements.

SAFETY

(l) For monopoles and towers, create a "fall area" or property line setback requirement

• Structural failure generally not a problem. Built to BOCA Code requirements, withstand hurricane force winds to ll0 mph. Towers/monopoles do not "fall over"–they collapse upon themselves

• Fall zones are usually to safeguard from ice falling or other debris falling from antennae mounts

• l996 study determined that debris from tower is usually contained in a radius of 50% of tower's height

• Many jurisdictions create a l to l fall area ratio; other jurisdictions create lesser fall area requirements in commercial, industrial and rural areas

• Create a waiver or variance process to any fall area or setback standard created

(2) Environmental assessments (EA) required by National Environmental Policy Act (NEPA) must be prepared by carriers when the following environmental impacts occur:

• Facilities located in officially designated wilderness or wildlife area

• Facilities threaten endangered species or critical habitats

• Facilities affect historic sites or structures

• Facilities are in floodplain

• Facilities will significantly change surface area (i.e., wetlands, deforestation, or water diversions)

CO-LOCATION SHOULD BE ENCOURAGED, IF NOT REQUIRED, BY LOCAL GOVERNMENTS. Factors which may affect co-location (either horizontally or vertically):

(l) Structure's capacity to support weight or wind loads from additional equipment (particularly important with older structures)

(2) Retrofitting older towers or poles may be technically difficult or too costly

(3) Possible radio frequency (RF) interference (can generally be mitigated with filters and shields)

(4) Visual appearance can be intrusive

(5) Co-location requires carriers to share information and is a concern with respect to antitrust laws and effect on competition. Not an antitrust problem when required by local or state laws or regulations

(6) Pricing co-locatees off a carrier's mount. Municipalities may be justified in requiring such information on condition that it will be kept privileged or confidential

CO-LOCATION MAKES SENSE TO CARRIERS:

(l) Spreads capital costs, returns revenues to carrier erecting pole, and cheaper for co-locators than building out own site

(2) Opens possibility for trading space on each other's facilities

(3) Carrier controls subleasing of pole/tower to other carriers, and property owner controls leasing of ground area for equipment buildings/cabinets

EQUIPMENT BUILDINGS/CABINETS:

(l) Regulation requirements

• Size and height

• Building material and style of structure

• Landscaping

• Lighting and signage

• Noise limitations (air conditioners, generators)

(2) Possible requirement of use of underground vaults in aesthetically sensitive areas

(3) When mounted on roofs of existing buildings, where feasible, use interior building areas to house equipment or limit roof coverage (i.e., 50%)

RADIO FREQUENCY RADIATION (RFR) EMISSIONS:

(l) l996 Telecommunications Act states that local governments may not regulate the placement, construction and modification of these facilities on the basis of the effects of radio frequency emissions to the extent that they comply with FCC regulations and guidelines concerning such emissions

(2) Towns can administer FCC guidelines for RFR for themselves, or leave it solely to FCC

(3) Local governments can require, as part of their review procedures, that an applicant demonstrate that the proposed PWS facility meets CC RFR guidelines. Can also require periodic readings paid for by applicant

PERMITTED USE vs. SPECIAL EXCEPTION/CONDITIONAL USE:

(l) Permitted use recommended in the following areas:

• When antennae placed on existing structures (buildings, monopole, or tower)

• Commercial or industrial areas

• Public parkland or other appropriate public facilities/areas

(2) Special exception/conditional use recommended for monopoles and towers in the following areas:

• Residentially zoned or developed areas

• Agricultural and farmland preservation areas

• Areas with transitional zoning and development

• Historic districts

(3) Prohibited locations:

• Environmentally sensitive areas–floodplain, wetlands, steep slopes with erodible soils

(4) Public property or buildings encourage–have to comply with zoning regulations unless the facilities or government owned and operated. Carriers otherwise need to go through zoning approvals even on public land or buildings.

ESTABLISH PROCEDURES FOR DEALING WITH REQUESTS FROM CARRIERS FOR LOCATING ON PUBLIC PROPERTY/BUILDINGS:

(l) Determine need or amount of public input (i.e., for siting, location, and compatibility concerns)

(2) Features that carriers seek:

• Single contact/contracting official

• Uniformity–standard processing procedure; standard lease/license agreements

• Expedited process; if process too protracted, can look elsewhere and government loses potential revenue

• Lengthy agreement (minimum 5 years, with l-3 5-year options)

• Flexibility in termination (basically due to changes in technology)

• Lease/license commencing no sooner than receipt of building permit

• Cross-indemnification and hold harmless on liability

• Covenant of quiet enjoyment and free access

• Attach exhibits showing lease areas, access to nearest public street, etc.

(3) Features that local governments seek:

• Provision requiring carrier to remove facilities, at carrier's expense, at end of lease or upon abandonment or termination. Secured by bond

• Adequate insurance provisions

• Detailed description of equipment

• Proposed installation will satisfy all legal, safety and health concerns

• Installation and use will not disrupt normal activities of public site or building

• Carrier bears all responsibility and related costs for liability and maintenance

• Agreement not effective until site review by local government technical committee or consultant

• Possible use of monopole/tower by local government (mount cameras or signage).

Decisional Requirements Under 1996 Telecommunications Act

• AT&T Wireless PCS v. City Council of Virginia Beach, l55 F.2d 423 (4th Cir. l998). Decision reflected in contents of minutes of council meeting and planning commission letter found to be sufficient. Court found that the Act did not require separate written findings and conclusions.

• Virginia MetroNet v. Board of Supervisors of James County, 984 F.Supp. 966 (E.D.Va. l998). Minutes cannot serve as written decision mandated by the l996 Act.

• Smart SMR of New York, Inc. v. Zoning Comm'n of Stratford, 995 F.Supp. 52 (D.Conn. l998). Commission's letter advising applicant of the denial failed to satisfy the written decision and substantial evidence requirements of the l996 Act. The fact that the Commission's reasons were set forth in the hearing transcript was not sufficient.

• Cellco Partnership v. Town Planning & Zoning Comm'n of Town of Farmington, 3 F.Supp. 2d (D.Conn. l998). Town commission's letter of denial to applicant, indicating that height and scale of proposed steeple housing the antennae would be out of character with the neighborhood, did not meet the Act's requirements because the letter failed to detail rationale for its conclusions, and commission did not tie conclusions to evidence of record.

• Gearon & Co., Inc. v. Fulton County, Georgia, 5 F.Supp.2d l35l (N.D. Ga. l998). Brevity of board opinion did not violate the requirement that decision be in writing.

• AT&T Wireless, PCS, Inc. v. Winston-Salem Zoning Board, ll F.Supp.2d 760 (M.D. N.C. l998). The stamping of the word "denied" on the application after a vote of the zoning board followed over two (2) months later by a written opinion explaining the denial was found to strongly suggest pretext and is a failure to comply with the Act's requirement that the decision be in writing.

• AT&T Wireless PCS v. City Council of Virginia Beach, supra. The court may look at the complete record, including the application, transcript, petition, letters and agency recommendations to determine if substantial evidence exists to support decision to deny. Repeated and widespread opposition of large number of citizens amounted to substantial evidence.

• OPM-USA, Inc. v. Board of County Comm'rs of Brevard County, 7 F.Supp.2d l3l6 (Md.D.Fla. l997). Denial based on fact that tower was plainly visible to community would appear foreign to natural and community authorities or the neighborhood was not supported by the evidence of record. Court noted that it would be rare to buffer a tower so that it was "invisible" and there were two other towers within view of this area.

• Virginia MetroNet v. Board of Supervisors of James County, supra. Mere conclusory statements in the decision without supporting bases were not substantial evidence, particularly where no effort was made to explain why the board discounted staff's findings and the evidence presented by the applicant as to its analysis of alternate sites.

• Smart SMR of New York, Inc. v. Zoning Comm'n of Stratford, supra. The commission's denial based, among other reasons, on the visual and aesthetic concerns over a proposed ll0' tower lacked a legitimate basis when grounded upon the commission's distaste of the appearance of a long-standing existing tower and the general policy of the commission to disfavor placement of facilities in any residential zone.

• Sprint Spectrum v. Willoth, 996 F.Supp. 253 (W.D.N.Y. l998). Denial of an application for three l50' towers in various residential areas was supported by substantial evidence of a significant impact on property values and on the environment over a wide area.

• Gearon & Co., Inc. v. Fulton County, Georgia, supra. Applicant failed in its burden of proof for a variance from setback requirements for erection of a tower, and therefore, decision to deny was supported by substantial evidence where applicant failed to substantiate a claim of hardship. Applicant also failed to demonstrate that no alternative sites were available, and board found that an alternative site was available on the adjacent property.

Stanley D. Abrams, Esq. and Cathy G. Borten, Esq.