Cities Can Take Control Cities Can Take Control of Cell Tower Siting -- Here's How

By James D. Brusslan
Nation's Cities Weekly, November 2, 1998

Besides increasing by fourfold the risk of traffic accidents, the large increase in cellular phones has resulted in a proliferation of cellular telephone towers. Cellular companies are inundating the nation's cities with tower applications under the federal Telecommunications Act of 1996. Local opposition is often strong. Citizens complain that the towers change the character of their neighborhoods, cause traffic disruptions, impair pedestrian safety, reduce property values or are just plain unsightly. This article suggests how cities can govern the placement and construction of cellular phone towers.

What the Law Requires

Cellular phone companies have paid millions of dollars in licensing fees to the FCC. To deliver uninterrupted service, these companies are developing, in a grid pattern, an interconnected network of "cell sites," or towers. Each tower's coverage area depends on its height, the population density and local topography. In the Telecommunications Act, Congress recognized that local governments should retain their general zoning authority. The Act allows state or local governments to regulate towers with five basic restrictions.

The Act authorizes providers to challenge application denials in federal court.

Local Responses to Tower Applications

Many cities have already enacted ordinances to regulate towers. Some cities permit towers only in business, manufacturing or similar districts. In these districts, the towers must satisfy specific criteria, such as height limitations and distance from residential districts. All that is required is that the providers apply for a building permit and comply with the limitations. For instance, section 5.11-1(2) of the Chicago Zoning Ordinance authorizes cellular phone towers, with certain conditions, in business, commercial and manufacturing districts.

Cities often allow construction of cellular phone towers, particularly in residential, recreational or agricultural districts, only as "special uses." For example, in Chicago, ground- mounted towers in residential areas are permitted only as special uses. To satisfy special use criteria, providers must go through public hearings to show that the towers are consistent with health, safety and welfare. In this process, cities and providers often compromise. Cellular firms have agreed to move proposed towers to remote sites, limited the height of the towers and agreed to plant screening vegetation. They've also placed towers on alternative pre-existing structures, such as water towers and even church steeples and have agreed to share towers with other providers.

Cellular providers, armed with substantial resources, are not shy about challenging permit denials in court. In the last year alone, companies have filed at least twenty-five federal court actions. Courts ruled in favor of local authorities about half the time. As long as local authorities support their reasoning, courts have agreed that cities may deny applications (a) based on visual, safety and aesthetic concerns, (b) to preserve the character of neighborhoods or adjoining areas, (c) to avoid undue traffic congestion and pedestrian problems, and (d) on grounds that multiple towers are unnecessary. One court stated that a county could deny the application based solely on a desire to increase county revenue by locating the tower on county property. Courts also have agreed that local bodies could require companies, if possible, to locate towers on existing structures and have approved a moratorium on all applications until a new ordinance could be drafted.

By contrast, courts have overturned permit denials on several grounds. First and foremost, courts insist on legitimate reasons and supporting evidence for the denial. Mere assertions without adequate evidence, that, for instance, the tower will reduce property values, is inadequate. Blanket prohibitions are also disfavored. One court held that a general policy of not allowing any towers in residential neighborhoods violated the Act. Instead, the court insisted that local authorities consider residential applications on a case-by-case basis. Another court found inadequate a county's concern that a tower would interfere with public safety communications. According to the court, Congress already has determined that any interference was outweighed by the need for cellular phone towers.

Recommendations

Cities must formulate a clear, consistent ordinance and policy for processing cellular phone tower applications. Although it should not have any blanket prohibitions, the ordinance may limit towers to certain districts, unless very specific criteria are met. As long as the ordinance does not have the effect of prohibiting all towers, cities can impose a variety of stringent conditions. Such requirements could include a requirement that towers are built on pre-existing structures or on public land (to increase revenue), a limitation on the tower's height, measures mitigating the tower's aesthetic impact and other steps to assure the public health, safety and welfare.

If a city intends to deny an application, it must have legitimate and supportable reasons. It must also be prepared to support its position with evidence in court. It can not rely merely on public opposition. A city would increase its chances of victory if it could identify a viable alternative to the unacceptable site. Most important, the city should articulate the basis for the denial in a written document. The written document will be a major focus in court.

Finally, it is important that local governments recognize that while they can't stop cellular phone towers entirely, they can limit their impact. A carefully drafted ordinance and a willingness to negotiate with cellular providers will likely yield the most favorable results. Nonetheless, when cellular providers are unreasonable, cities should not be afraid to stand up for their rights. In passing the Telecommunications Act, Congress made it clear that "[t]he 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."

James D. Brusslan is an environmental and zoning attorney in Chicago. He has litigated environmental and siting matters as outside counsel for a number of cities. He can be reached at 312-362-0500; fax, 312-362-0515; e-mail, envnlaw@ripco.com.