A Newsletter of the Real Estate Law Committees
of the Association of the Bar of the City Of New York

Communications Towers:  Local Zoning vs. the Telecommunications Act

By Steven D. Cohen¹

The Telecommunications Act of 1996² (the "Telecom Act") is the first major revision of the nation’s telecommunications laws since the enactment of the Communications Act of 1934. Section 704 of the Telecom Act, which is codified in 47 U.S.C. §332(c)(7), contains provisions designed to facilitate local zoning and land use approvals for the construction of communications towers that are necessary for cellular, PCS and specialized mobile radio services (these towers are sometimes referred to as "cell sites").³ This section of the Telecom Act preserves state and local zoning authority, with the following limitations:

• The local regulations cannot unreasonably discriminate among providers of functionally equivalent services.
• The local regulations cannot prohibit or have the effect of prohibiting the provisioning of personal wireless communications services (e.g., analog or digital cellular telephones or pagers).
• The local government must act on a request for authorization to place, construct, or modify the facilities within a reasonable period of time (although what is a reasonable period is not defined).
• A local government decision to deny a request to place, construct, or modify the facilities must (1) be in writing, and (2) be supported by substantial evidence contained in a written record.
• The local regulations cannot regulate the placement, construction, and modification of the facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communication Commission’s regulations concerning such emissions.⁴

Section 332(c)(7) of the Telecom Act has been the subject of a significant amount of litigation, with courts attempting to strike the difficult balance between municipalities’ rights to control development, and the Telecom Act’s goal of encouraging the rapid deployment of new telecommunications technologies. Disputes have arisen when local governments have denied requests for approval of communications towers and the denials appear to have been based on factors that are not permitted under the Telecom Act, such as fears of radio frequency emissions or a general reluctance of property owners to be located near what they perceive to be an unsightly tower. It is difficult to draw general rules from these cases because they are very fact specific. However, decisions by several federal circuit courts of appeals and numerous district courts have highlighted the issues and established standards of review.

The Court of Appeals for the Fourth Circuit became the first federal appellate court to balance the competing desires of a municipality and service providers under Section 332(c)(7) of the Telecom Act, and, as among the federal appellate courts that have considered this statute, has taken a position giving local government the most latitude in making tower siting decisions. In AT&T Wireless PCS, Inc. v. City Council of the City of Virginia Beach,⁵ the City Council of Virginia Beach, Virginia denied an application for a conditional use permit under the city’s zoning code for the construction of two 135-foot monopole antenna towers.

The Court of Appeals for the Fourth Circuit ruled that since there was no intent on the part of the City Council to discriminate in favor of a particular carrier, the City Council’s denial of the application did not constitute unreasonable discrimination under the statute. The court also believed that the denial of the conditional use permit on aesthetic grounds was reasonable under the circumstances. The court appeared to give the municipality wider latitude in denying a permit for aesthetic reasons in a residential area, as opposed to a commercial area.

The Court of Appeals also ruled that the City Council’s decision was supported by substantial evidence and that "while ‘substantial evidence’ is more than a scintilla, it is also less than a preponderance." The court ruled that the opposition of a majority of the citizens of Virginia Beach who voiced their concerns, through petitions, letters, and at the City Council meeting, amounted to more than a "mere scintilla" of evidence. The court did not read the statute as requiring that the substantial evidence be contained in the written denial itself. In rendering its decision, the court appeared to give greater deference to the City Council because it was acting in a "legislative" capacity. However, other courts have taken a less deferential position on this issue.

The decision by the Court of Appeals for the Second Circuit in Cellular Telephone Co. v. Town of Oyster Bay⁶ provides guidance in two areas: the types of substantial evidence that can serve as the basis for a denial of approval to construct a communications tower, and the remedy for improper denial.

The court agreed with the carrier that health concerns expressed by residents cannot constitute substantial evidence supporting the denial of the necessary permits. Since the testimony before the municipality dealt almost exclusively with health effects, the court did not find substantial evidence on other grounds for the denial of the permit. Turning to the issue of remedies, the court stated that although the Telecom Act does not specify the remedy for an impermissible violation of Section 332(c)(7), injunctive relief, as opposed to remand back to the Town for further hearings, was the appropriate remedy, given the Telecom Act’s goal of "expediting resolution of this type of action."

The Court of Appeals for the Second Circuit sided with the local planning board in Sprint Spectrum, L.P. v. Willoth.⁷ In its very detailed review of Section 332(c)(7), the Court of Appeals made several significant observations. First, it stated that the Telecom Act "explicitly contemplates that some discrimination among providers of functionally equivalent service is allowed," as long as the discrimination is reasonable. Second, local governments may take the location of communications towers into consideration when deciding whether: (1) to require a more probing inquiry, and (2) to approve an application for construction. The court further stated that "[a] local government may reject an application for construction of a wireless service facility in an under-served area without thereby prohibiting personal wireless service if the service gap can be closed by less intrusive means." Effectively, this means the Telecom Act does not preclude local governments from examining the reasonableness of carriers’ engineering planning decisions in connection with zoning proceedings for tower siting.

From these and other cases that have been decided since 1996, one can glean the following general principles regarding Section 332(c)(7):

• Generalized, vague concerns of potential health risks from communications towers are not a sufficient ground for a municipality to deny permission for the construction of such a tower.
• A municipality’s denial of a particular application to construct one or more communications towers does not, in and of itself, and absent other relevant circumstances, constitute a prohibition on communications towers.
• A decision to deny an application to construct a communications tower must be in writing, but courts have taken an inconsistent approach in deciding what that writing must contain, or whether the written record required under the Telecom Act can be contained elsewhere, such as the letters, reports and testimony submitted to the municipality during the course of the zoning proceeding.
• In determining whether a municipality’s decision to deny an application was supported by substantial evidence, most federal courts apply the standard of review used in reviewing federal administrative decisions, but some courts, including the Court of Appeals for the Fourth Circuit, have adopted a standard of review that is more deferential to the municipality.
• Generalized aesthetic concerns provide little support for the denial of an application, but specific aesthetic concerns (e.g., the preservation of the appearance of a landmark building) may provide sufficient evidence to support the denial of an application.
• Many courts will give greater deference to a municipality’s denial of an application to place a communications tower in a residential area than they would if the denial related to a proposed tower in a commercial area.
• The majority of courts have ordered injunctive relief upon finding that an application was denied in violation of the Telecom Act’s requirements.

The amount of litigation regarding the application of Section 332(c)(7) of the Telecom Act underscores the inherent difficulty in subjecting local zoning decisions to an overriding federal policy. In another case regarding the application of this section of the Telecom Act, the Court of Appeals for the First Circuit summarized the dilemma when it said "[t]he statute’s balance of local autonomy subject to federal limitations does not offer a single ‘cookie cutter’ solution for diverse local situations, and it imposes an unusual burden on the court. …If this refreshing experiment in federalism does not work, Congress can always alter the law."⁸

^Endnotes

¹Steven D. Cohen is Real Estate Counsel for Bell Atlantic Corporation. The opinions expressed herein are the opinions of the author and not necessarily those of Bell Atlantic. Mr. Cohen is co-author of the new Chapter 70C of Powell on Real Property, The Effect of Telecommunications Laws and Regulations on Real Property Interests (Matthew Bender), scheduled for publication in March, 2000.

²Pub. L. No. 104-104, 110 Stat. 56 (1996), codified in scattered sections of 47 U.S.C. §151 et seq.

³For a description of the differences between cellular, PCS and specialized mobile radio services, see WTB Releases Fact Sheet on New National Wireless Tower Siting Policies, 1996 FCC LEXIS 2142.

⁴These requirements are set forth in 47 C.F.R. §1.1307 and 47 C.F.R. §24.52.

⁵AT&T Wireless PCS, Inc. v. City Council of the City of Virginia Beach, 155 F.3d 423 (4^th Cir. 1998).

⁶Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2^nd Cir. 1999).

⁷Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 (2^nd Cir. 1999).

⁸Town of Amherst, New Hampshire v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9 (1^st Cir. 1999).