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Unleveled playing field for cell tower appeals

Posted by Rona Fischman February 23, 2011 01:54 PM

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Whatever you take on cell towers, Richard D. Vetstein tells you about the legal wrangling about them:

With the proliferation of cellular/wireless service and coverage, Massachusetts town and cities have been bombarded in the last several years with applications for zoning relief for new cell towers and related equipment. These applications – especially in residential neighborhoods –raise the ire of local residents who don’t want cell towers in their backyards. Local zoning boards’ ability to regulate cellular/wireless facilities, however, is significantly circumscribed by the federal

Telecommunications Act of 1996 (TCA) which provides that local zoning decisions cannot unreasonably discriminate among providers, have the effect of prohibiting service, or regulate on the basis of the effects of radio frequency emissions.

The TCA has spawned a decade’s worth of litigation with wireless servicers’ slugging percentage in the David Ortiz range. The most recent smack-down is T-Mobile Northeast LLC v. City of Lawrence.

T-Mobile sought to fill a coverage gap beset by those dreaded dropped calls in Lawrence’s Prospect Hill area by building a six foot high antennae hidden in a “stealth chimney” on top of a condominium building in a residential zone. Lawrence's zoning ordinance bars antennae in residential zones except on city-owned land, and requires a 1,000-foot setback from any residential lot. T-Mobile had previously asked the city to make municipal land available for its facility, but got no response. Having no other option, it then applied for the necessary zoning approvals and variances from the ownership and setback requirements.

Lawrence's zoning board of appeals (ZBA) denied T-Mobile's application, stating that it could not find sufficient facts to approve. (In other words, the majority of the board didn’t want the cell antennae at that location). At the hearing, some members of the ZBA expressed their views that the coverage gap was not real, ignoring T-Mobile’s expert, and that the antenna should go on municipal land so that the city could benefit financially. T-Mobile appealed the denial.

The TCA provides for expedited review in federal court, another major advantage for wireless servicers which can by-pass often lengthy state superior and land court appeals. Judge Gorton pretty much eviscerated the board’s decision, as “rote” and merely parroting the relevant factors. The judge also characterized as “too little, too late” Lawrence Mayor William Lantigua’s plan to open up alternative municipally-owned sites for public bidding. The judge ordered that the permits be granted.

The lesson for town boards is pretty simple. If you are going to deny a cell tower permit application, think twice and very hard at that. Perhaps consult town counsel before issuing a final decision, before causing your town to spend thousands on taxpayer funded legal fees with no reasonable chance of success.

Do you think towns and cities should be able to block the construction of towers? Do you have a tower near you? Do you notice it? Do you ignore it? Do you believe cell towers are bad for your health?

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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Scott Van Voorhis is a freelance writer who specializes in real estate and business issues.

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