Case Study: Land Use Controls and Antenna Towers

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Case Study Land Use Controls and Antenna Towers

• 2.1.1 Overview of
• State Local Authority

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Zoning Land Use

• Local governments have jurisdiction over land use
  issues zoning per delegation by states to local
  authorities.
• Zoning Land use is designated by local
  ordinance.
• Types, Nature Scope of land use are authorized
  pursuant to the governments exercise of Police
  Powers to protect public health, safety
  welfare.
• Deviations from uses prescribed by law addressed
  through administrative boards commissions,
  e.g., zoning commission, planning, architectural
  review boards.

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Addressing Competing Interests

• Some uses may be necessary have utility but be
  undesirable.
• Examples include nuclear power plants, prisons,
  dumps, liquor stores, adult entertainment, and
  antenna towers.
• Objections not based on police powers include
  environmental concerns aesthetics, affect on
  property values.
• Tests focus on balancing utility of use against
  detriment to surrounding communities.

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Undesirable Uses

• Undesirable Uses
• Nuclear power plants
• Prisons
• Dumps
• Liquor stores
• Adult entertainment
• Antenna towers
• Halfway houses

• Reasons for Undesirability
• ?health, safety and risk of injury
• ?safety, undesirable persons, reduce property
  values
• ?odors, attract rodents, unsightly
• ?attract loiters, intoxicated
• ?appeals to questionable persons
• ?unsightly, safety, radiation
• ?reduce property values, safety

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Reasons to Object

• Objections not based on police powers include
  environmental concerns aesthetics, affect on
  property values.
• Tests focus on balancing utility of use against
  detriment to surrounding communities.
• Limit number, location, supervision, hours of
  operation

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Exercise 1

• 1) Your neighbors want to build a 8 foot wooden
  fence to divide your properties to give them more
  privacy. You think the fence will obstruct the
  airflow and view and will be unsightly. The local
  building code allows someone to construct a fence
  not to exceed 6 feet high without consent of
  neighbors living in surrounding area. The
  environment laws permit neighbors to plant shrub
  at their discretion. You are lawyers representing
  the homeowners involved. Negotiate a resolution
  to the problem.

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Exercise 2

• 2) You have a dog and take your dog walking in
  the neighborhood park, which is enclosed, and
  therefore allows you to take the dog off of the
  leash. There is a local leash law that requires
  owners of pets to have their pet on a leash
  except in predetermined areas. Local residents
  comprise 50 percent dog owners and 50 percent non
  dog owners. Other neighbors like to use the park
  to sunbathe, bring their children to play, or
  read a book. Both groups have petitioned you as
  City Planner for a designation that the park will
  be used exclusively for competing purposes. You
  would like to encourage the residents to resolve
  this dispute by negotiation.

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Exercise 3

• 3) An electrical problem in the main power line
  causes outages in 7 cities across the northeast.
  Each of the cities blames other cities as causing
  or contributing to the outage. Once the source of
  the outage is determined, it becomes evident that
  there are three contributing problems that lead
  to outages 1) outdated equipment that was unable
  to accept the capacity required over the line 2)
  overcapacity on the system at strategic stress
  points 3) inadequate maintenance of the physical
  areas surrounding the lines that increase the
  likelihood of damage from storms. Identify the
  problem or problems that need to be addressed and
  a strategy for tackling the problem.

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Location of Antenna Towers

• Part 2

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Discussion Questions

• 1) What are the competing interests in disputes
  over construction of antenna towers?
• 2) How would you resolve these issues? Process
  and/or Substance, e.g., compatibility standard
• 3) What does condo board have to do to enable
  lease with Metro PCS to go forward?
• 4) What limit does Telecom Act impose on local
  zoning authority?
• 5) Should the zoning board restrict location to
  government owned land and if so, what are the
  pros and cons?

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Problem

• 1) Local land use authorities that regulate the
  location of antenna towers within a community
  apply the criteria for special exceptions and
  variances inconsistently, leading to ad hoc and
  arbitrary denial of applications by communication
  providers.
• 2) There is a need to reconcile environmental,
  aesthetic, and safety concerns associated with
  location of antenna towers with federal law that
  prescribes minimum standards and guidelines for
  RF radiation.

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Creative Problem Solving (CPS)

• 1) Understand the problem and why it is
  important.
• 2) Understand important and unimportant facts.
• 3) Identify applicable rules and principles.
• 4) Generate possible solutions.
• 5) Identify and evaluate constraints.
• 6) Choose a solution.

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Goal

• Your goal is try to resolve the concerns of all
  of the parties to permit the use through
  negotiation, rather than a third party decision
  maker where neither party may be pleased with the
  outcome, but still must live with and interact
  with same parties.

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Facts

• Developer owns a 4-acre triangular-shaped piece
  of property on the top of a mountain in the City
  of Saints. The property is currently used to
  locate broadcast, microwave, and satellite
  antenna towers. The satellite antenna is 10 feet
  in diameter, the microwave tower is 140 feet high
  and the broadcast antenna tower is 200 feet in
  height, both visible from Cool Housing,
  Interstate 54 and the beach. The property is
  zoned to permit as a matter of right,
  institutional or light industrial use. Design
  approval is required. Developer wants to move
  the towers to develop vacant part of the land.
• Q Does moving the towers to another part of the
  site trigger current zoning which may impose
  additional restrictions?

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Facts

• Developer inherited the property from his family
  and wants to move the existing towers to the
  northern end of the site, which will require a
  100-foot encroachment on to city property.
• Wants to build a high-tech industrial park on the
  south end of the site.
• Use of the site for antenna towers was
  grandfathered in under local zoning authority.
• The proposed relocation and development plan
  requires a conditional use permit. Such uses
  would likely be prohibited as a matter of right,
  requiring either a special exception showing
  compliance with local regulations or a variance,
  since the property is located in an area that
  under current zoning would prohibit such use.
• The current towers are located within 1500 feet
  of the nearest residential area.

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Facts

• The towers comply with current regulations by the
  Federal Communications Commission governing
  human exposure to RF radiation and minimum
  distance requirements to residential.
• Q THE EXISTING TOWERS COMPLY, SO WHAT WOULD BE
  THE JUSTIFICATION FOR IMPOSING ADDITIONAL
  REQUIREMENTS, E.G., AS A QUID PRO QUO FOR
  ALLOWING THE USE OR BY LAW PASSED BY THE LOCAL
  AUTHORITY?
• APPLICANT WOULD NOT, ON THE CURRENT FACTS, BE
  FORCED TO MAKE CHANGES, BUT COULD DO SO
  VOLUNTARILY.

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Assumptions

• The City of Saints, acting through their city
  council, has enacted a local ordinance that
  mirrors the provisions of Title 5 governing
  Negotiated Rulemaking. See Sections 562-566, 570
• The City of Saints, by charter, has delegated
  land use functions, including rulemaking,
  adjudication, and enforcement to the Zoning
  Commission.

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Negotiated Rulemaking APA Section 561-570

• An advisory group of stakeholders who reach
  consensus on a rule and then government puts out
  as NPRM
• Gov. does not undertake independent review
• Need has to be established where identifiable
  stakeholders and likelihood that compromise can
  be reached
• Settlement agreement becomes rule proposed by the
  agency.
• Increasingly used more often to reduce time and
  delay.
• Key is that parties are seeking some consensus
• The discretion to use, establish or terminate a
  negotiated rulemaking shall not be subject to
  review.

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Assumptions

• The City Planning Office has been working with
  Developer and has made a preliminary
  determination that Developer need only get a
  special exception, and that enforcement of
  current zoning is waived as the towers are
  preexisting uses.
• The City also relies upon findings by federal
  regulators and U.S. courts that have
  consistently taken the position that the RF
  standards are reasonable.

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FCC Emission Standards

• -FCC has prescribed minimum standards for human
  exposure to RF emissions from federally-licensed
  antennas.
• -The FCC has admitted its incompetence in
  evaluating biohazards of RF emissions and depends
  on the EPA, FED, and OSHA for technical
  information. Their initial rules were promulgated
  in 1993-1997 and have not been updated.

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Interests to be Balanced

• Need for electricity power, telecommunication
  services, security but requires construction of
  power lines and antenna towers that are visible
  and unsightly.
• Property values, health and safety, aesthetic.
• Development for residential, commercial, research
  development or existing uses.

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Indispensable Parties

• Developer/owners-Seek to act
• University of Saints-Adjoining neighbors-Object
  to action cause want to build Science lab.
• Community Environmental Organization-Represent
  community interests.
• City Planning Office-Enforce zoning laws (Not a
  party)

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Saints Municipal Code

• 1) All telecommunications facilities that are
  required to obtain encroachment authorization to
  locate on city-owned dedicated or designated
  parkland or open space areas shall comply with
  the following
•  
• (a) The City shall determine that the proposed
  facility would not be detrimental to the Citys
  property interest would not preclude other
  appropriate uses would not change or interfere
  with the use or purpose of the parkland or open
  space and would not violate any deed
  restrictions related to City property, map
  requirements or other land use regulations.
•  
• (b) The proposed facility shall be integrated
  with existing park facilities or open space
  shall not disturb the environmental integrity of
  the parkland or open space and shall be
  disguised such that it does not detract from the
  recreational or natural character of the parkland
  or open space.
•  
• 2) All major telecommunication facilities may be
  permitted with a conditional use permit upon a
  showing that applicable Federal RF standards have
  been complied with such use is compatible with
  uses in the surrounding community and are not
  minimally visually intrusive.
• 3) Major telecommunication facilities are not
  permitted within viewsheds or designated scenic
  highways or within the coastal overlay zone, on
  premises containing steep hillsides with
  sensitive biological resources, or within public
  view corridors.
•  

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Developer

• Files for a special exception to relocate the
  towers.
• Argues the location of the towers constitute as a
  pre-existing use, and he is not proposing an
  overall increase or change in the use.
• There is no issue regarding the appropriateness
  of locating the towers on the site and,
  therefore, grandfathered in.
• The only issue is whether the city will allow an
  encroachment onto its land.
• The Developer argues that the towers must be
  located at that site because of its proximity to
  the citys power grid. Providers rely upon the
  grid to generate the power to operate the
  antennas.
• The encroachment will be minimal and will not
  have an appreciable environmental impact on the
  biological resources or use of the property.
• Developer has the support of the communication
  providers.

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University of Saints

• Opposes the towers because the use violates
  current zoning laws, reduces property values, is
  aesthetically unattractive, and threatens to harm
  the wildlife in the preserve.
• Relies upon research by computer science students
  determined based upon studies in Europe and
  abroad, U.S.
• RF standards are 10 percent below what has been
  found to be the maximum safe distances.
• Believes construction of a high tech park would
  be incompatible and directly compete with a
  proposed expansion of a science lab.

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Community Environmental Org.

• Opposes the plan, supports the University and
  wants to restore the natural views, and
  encourage redevelopment to residential use.
• Discriminates against persons with heart pace
  makers, hearing aids, and other medical devices
  that rely upon electricity.
• Studies show devices used in close proximity to
  power plants malfunction or are subject to
  interference with their operation, causing a high
  risk to affected persons.

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Rules

• Federal government has preempted state and local
  authority to the extent that it precludes or bans
  the activity in its entirety in the Telecom Act
  of 1996.
• Local zoning may restrict placement of towers to
  municipal property via local ordinance.
• Action by a zoning board to deny location must be
  based upon substantial evidence.
• Courts will defer to organizational documents re
  permissible uses if the action is duly
  authorized. Metro PCS
• Private owners may lease space to providers if
  they are authorized to act on behalf of condo or
  HOA and use is permitted. Metro PCS

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Rules

• Cities may adopt ordinances that require cell
  towers to be co-located on existing towers and
  impose height restrictions e.g., 100-130 feet.
  (Effect is that provider could be leasing space
  from a competitor.)
• Cities cannot impose RF standards in excess of
  those established by the FCC.
• Cities cannot designate areas where permitted as
  a matter of right, subject to conditions
  regarding mounting.

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Variances

• Variances are appropriate where the use is
  prohibited as a matter of right and is not
  self-created but for some unique physical
  circumstance, an unnecessary hardship created.
• Variances should be used where the physical
  characteristics of the land make it necessary
  for the reasonable use of the property. Unique
  topography is one basis for granting a variance.
• Variance requires 5-part showing 1) adequate
  access to public services-police and fire 2)
  harmony with other areas 3) consistency with
  other structures 4) adequate parking and 5)
  grading for drainage
• Bottom line HARDER TO PROVE, MUST SHOW HARDSHIP.

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Special Exception

• Applies where the use is not barred, but the
  statute provides that the use can only be
  permitted on a showing that certain conditions
  have been met.
• The requirements are less stringent than
  variances.
• State Zoning Enabling Acts vest authority in
  local zoning boards to hear and decide such
  issues.

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Principles

• How boards apply the rules have resulted in ad
  hoc decision making that is inconsistent and
  creates a hardship to providers. Fact specific
  but are the parties the same or different.
• Negotiated rulemaking puts all of the critical
  stakeholders together to try to resolve the
  issues. The City acts as a mediator to
  facilitate a resolution, taking into account
  general planning and regulatory constraints in
  enforcement.

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Principles

• Antenna towers are fundamental to wireless
  telecommunications systems, and must be
  constructed above ground with clear line of
  sight, so they have to be erected somewhere in
  order to provide service. Can provide buffers,
  aesthetic covers to minimize visibility.
• Service requirements often dictate minimum space
  requirements, line of site, so options for
  location are limited.

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Principles

• Wireless communications require clear
  line-of-site, which is why towers are generally
  located at high elevations or outside heavily
  populated areas with tall buildings.
• Towers are placed in a pattern or grid to
  minimize dead zones, interference or
  disruption of the signal.

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Goal

• Your goal is try to resolve the concerns of all
  of the parties to permit the use through
  negotiation, rather than a third party decision
  maker where neither party may be pleased with the
  outcome, but still must live with and interact
  with same parties.

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Questions

• Q HAS THE AREA CHANGED TO THE EXTENT THAT THE
  PROPOSED USE VIOLATES LAND USE PLAN CALLING FOR A
  VARIANCE?
• Q IF YES, THEN DID APPLICANT CREATE THE HARDSHIP
  THAT IS THE BASIS FOR THE VARIANCE, IF ONE IS
  SOUGHT?
• Q IF NO, THEN CAN THE AREA ACCOMMODATE THE
  MODIFICATION AND ARE THERE ADVANTAGES THAT WOULD
  OUTWEIGH ANY OTHER INTERESTS?

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Task

• Identify the priority of interests for each
  party.
• Develop a strategy that will address each partys
  concerns.
• Negotiate a compromise.