WEBMASTER'S NOTE:  Since this article was written in 1996, important appellate decisions were rendered in Sprint Spectrum L.P. v. Willoth and AT&T Wireless PCS, Inc. v. City Council of the City of Virginia Beach and there have been numerous other important court decisions.  Due to the rapid change in this area of law, these and other recent developments must be researched. Robert Koegel has reviewed some of the most significant recent decisions in his article published in New York Law Journal on Jamuary 5, 2000 entitled Cell Tower Siting Under the Telecommunications Act of 1996.

Virtually all of the nineteen towns within Monroe County have recently received an increasing number of applications for telecommunications facilities. The local rapid growth of wireless communications services reflects a larger trend both within the state, and throughout the country. Recent federal legislation has fueled this growth, in part by curtailing the power of local municipalities. Nevertheless, towns which learn to maximize their local control may still greatly influence the location, design, size and visual impacts of cellular communication towers.

Today there are roughly 20,000 transmission facilities for mobile telephones. By the year 2000, the industry estimates, there will be 115,000. This means close to six antennas for every one now standing, not counting the ones that handles paging and data-transmission services.⁽¹⁾ Communication towers are used for cellular, personal communications service (PCS), and specialized mobile radio (SMR) transmitters. The FCC has divided the country into markets, and has auctioned off multiple licenses to provide each of these services, which operate in different frequency ranges.⁽²⁾

A cellular system operates by dividing the geographical area for which a license has been purchased into cells, and assigning the same frequencies to multiple, non-adjacent cells. As a subscriber travels across the service area the call is transferred (handed-off) from one cell to another without noticeable interruption.⁽³⁾ The most technologically advanced player on the market is PCS, in which digital communication is routed to an individual rather than a telephone number via a more sophisticated version of the pager. The receiving end of the system, however, will likely be a voice transmission device, a fax, a video screen, or a database instead of a simple beeper.⁽⁴⁾ While PCS technology is also networked via cell sites, it operates on a higher frequency on the electromagnetic spectrum, and thus travels shorter distances other wireless services. Accordingly, numerous base sites for continuous coverage will be needed as the demand for PCS service expands.

Towers are commonly from 100" to 250" or higher, and usually require accessory structures to house transmitting or maintenance equipment. The tower must be able to "see" over obstructions to avoid coverage gaps. In more densely populated areas, towers can often be hidden on the top of buildings, water towers, or similar tall structures, as the height of the underlying structure allows for the utilization of shorter towers. Accordingly, much of the conflict over the siting of towers has arisen in suburban or rural areas. Usually placed on higher ground, these towers often rise above the tree line. However, depending on the type of tower, they can be camouflaged to appear as a pine tree (complete with fake bark and branches), a church steeple or street light.⁽⁵⁾

Generally, an applicant seeking a use variance must show substantial hardship. Yet public utilities have long been afforded a gentler standard, and are required to show:

that modification is a public necessity in that it is required to render safe and adequate service, and that there are compelling reasons, economic or otherwise, which make it more feasible to modify the plant than to use alternative sources of power such as may be provided by other facilities. However, were the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced.
 

Consolidated Edison Co. of New York, Inc. v. Hoffman, 43 N.Y.2d 598, 610; 403 N.Y.S.2d 193, 199 (1978). However, this has never meant that a utility may place a facility wherever it chooses in the community. Id. at 610, 403 N.Y.S.2d at 199.

The issues of variances for public utilities and the status of cellular companies converged in Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364 (1993), where a cellular telephone company sought to install its antennae upon an existing water tower located in a residential zone. In Rosenberg, the Court of Appeals reviewed the characteristics of a public utility, and concluded that a cellular telephone company possessed the requisite qualifications.⁽⁶⁾ The Consolidated Edison test was also expanded to encompass entirely new sitings of facilities, as well as the modification of existing facilities. Yet Rosenberg was premised on the existence of regulatory controls, operating together with the variance test, "to guard against...concerns about the potential proliferation of similar applications and the inability of local land use officials to exercise control to protect their communities." These other regulatory controls have since fallen away, leaving only the local municipality to regulate the siting of a communications installation. Given this radically altered regulatory picture, the climate is ripe for the Rosenberg holding to be revisited.

On January 31, Congress passed the Telecommunications Reform Act of 1996 (the "Telecommunications Act"), which governs federal, state, and local government powers regarding the location of "personal wireless service" facilities.⁽⁷⁾ The cellular industry lobbied Washington hard for federal preemption of local zoning authority. Instead of local control, the industry preferred national standardization of facility siting requirements to avoid delays by town zoning and planning.⁽⁸⁾

However, Congress chose to split the regulatory pie. The Telecommunications Act provides the following victories for the cellular industry in the form of diminished local control: (1) towns can not prevent the construction of towers; (2) different providers of personal wireless services may not be discriminated against; (i.e., if they have purchased a license from the FCC, they can not be kept out);⁽⁹⁾ and (3) no State or local government can regulate personal wireless service facilities on the basis of the environmental effects of RF emissions, to the extent that such facilities comply with FCC regulations concerning such emissions.⁽¹⁰⁾ Requests upon local governments for authorization to construct a tower must be acted upon within a "reasonable" time, and any decision to deny a request must be supported by substantial evidence contained in a record.⁽¹¹⁾ The Telecommunications Act also requires federal and state agencies to aid licensees who wish to erect towers on government properties.⁽¹²⁾

The prohibition of regulation based on the perceived effects of RF radiation often causes consternation on the part of town boards and residents. In exercising federal control, the Telecommunications Act required that rules regarding the environmental effects of RF emissions be promulgated.

Accordingly, the Federal Communications Commission (FCC) amended its rules, effective August 6, 1996, to adopt new guidelines and methods for evaluating the environmental effects of radiofrequency radiation from FCC-regulated transmitters.⁽¹³⁾ These rules acknowledged that changes in recommended exposure limits were possible in the future, as research regarding RF radiation continues. ⁽¹⁴⁾

Local Land Use Controls on Cellular Towers Town residents frequently provide a cautious reception for new tower applications. Concerns regarding the health impacts of RF radiation, visual impacts of towers, and the potential depreiciation of property values are prevelant. Unfourtunately, many zoning ordinances fail to address communication installation towers. Those that do were likely enacted years ago, and are ill suited for the techology of today. These non-existent or inadequate zoning ordinances provide little opportunity for towns to significantly affect the siting of faciltities.

The slice of the regulatory pie Congress left to local control are decisions regarding the placement, constrution, and modification of personal wireless services. Yet this slice is quite substantial, and includes the abilty to chose in which districts towers are permitted; conversely, towers may be prohibited in residential or other sensitive districts. Conditions to mitigate the visual impacts of towers may be contained within the zoning code, or included in a use variance. The mitigation of visual impacts may be accomplished by landscaping, camoflouging the tower where possible, requiring accessory buildings to resemble the character of the neighborhood, and the use of fencing, vegetation and berms.

Height restrictions, lot size requirements, and setback distances for towers provide another important avenue of local control. Variances would then be required for any deviation, thus allowing the town to impose mitigating conditions.

Towns should further require that towers are used by more than one user whenever technologically possible. This co-location of equipment and users is critical to avoid the suburban and rural landscape from appearing as a antennae farm. As more licenses are sold and utilized, additional companies will enter the market seeking towers, thus increasing the pressure on towns to encourage co-location.

Town zoning boards must determine whether the installation of a communications tower constitutes a permitted use within the zoning ordinance. While the Telecommunications Act bars a blanket prohibition on communications towers, they can be restricted to specific zoning districts, such as commercial or industrial districts. Should an applicant wish a tower placed in a district where they are not an enumerated use, a use variance will be required utilizing the standards set forth in Rosenburg. Site plan approval from the town's planning board may also be required. The decisions of these boards must be both rational and suppoerted by substantial evidence to survive a potential court challenge.

Town residents with a direct interest in the siting of a communications tower may be able to either initiate a court challenge or intervene in an existing case. In Rochester Telephone Mobile Communications v. Cole, 637 N.Y.S.2d 878 (4th Dep't 1996), an association of persons residing near the site of a proposed cellular communications tower were granted status as intervenors.

The validity of short term moratoriums designed to allow a town the opportunity to revise its zoning code has been heatedly contested. While decided prior to the enactment of the Telecommunications Act, the leading moratorium case in New York remains Cellular Telephone Company v. Village of Tarrytown, 209 A.D.2d 57, 624 N.Y.S.2d 170 (2d Dep't 1995). There a moratorium based solely on "scientifically unfounded public perception" regarding the adverse effect of radiofrequency emissions was struck down as an improper exercise of police power. However, this same case opened the door to future moratoriums when based on comprehensive zoning changes.⁽¹⁵⁾

Accordingly, moratoriums based on health concerns from RF radiation are vulnerable, but those based on a need to revise local zoning ordinances to bring them into compliance with the Telecommunications Act stand a much better chance of judicial approval. Locally, the towns of Rush and Webster have both enacted six month moratoriums halting permits for communications towers, and other communities have considered their use. The first federal challenge to the use of short term moratoriums under the Telecommunications Act was heard in Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996), in which a six month moratorium was upheld. In concluding that the moratorium, which suspended the issuance of permits, not the processing of applications, violated neither the Telecommunications Act nor the Omnibus Budget Reconciliation Act of 1993, 47 U.S.C. 332(c)(3), the court stated:

The City's moratorium, however, is not a prohibition of wireless facilities, nor does it have a prohibitory effect. It is, rather, a short-term suspension of permit-issuing while the City gathers information and processes applications. Nothing in the record suggests that this is other than a necessary and bona fide effort to act carefully in a field with rapidly evolving technology. Nothing in the moratorium would prevent Sprint's application, or anyone else's, from being granted.
 

Id. at 1040. The City of Medina holding further concluded that that six months constituted a reasonable period of time "where the circumstances call for study, deliberation, and decision-making among competing applications." Id.

Despite the City of Medina ruling, Sprint Spectrum, L.P. has again challenged the validity of moratoriums, this time on a local level. A Summons and Complaint has been filed by Sprint Spectrum, L.P. against the Webster Town Board, alleging many of the same arguments which were previously unsuccessful.⁽¹⁶⁾

Town zoning or planning boards often act as the lead agency in reviewing an application pursuant to the State Environmental Quality Review Act ("SEQRA"). Locally, the granting of a conditional use permit for a cellular tower was recently annulled due to flaws in the environmental review process.⁽¹⁷⁾ The Court of Appeals has also held that while aesthetic considerations are a proper area of SEQRA review, the lead agency must take a "hard look" at the proposal and set forth a reasoned elaboration for its determination.⁽¹⁸⁾ Moreover, where a tower is a conforming use, an alleged zoning ordinance violation is not a valid basis for denying site plan approval pursuant to SEQRA.⁽¹⁹⁾

A generic Environmental Impact Statement (GEIS) could also be done on a county wide level, with the county serving as lead agency. Utilization of a GEIS would allow towns to consider the entire grid of an applicant, rather than just the portions to be placed within a particular town. As the placement of one tower necessarily affects the placement of another, this county wide approach would increase the ability of towns to meaningfully affect the location of towers before their location is pre-determined.⁽²⁰⁾

The Telecommunications Act did not end local control over communications installations. Municipalities may still exercise substantial control over the placement of towers and their attendant impacts with a carefully written zoning ordinance. Yet revisions may well be needed to zoning ordinances to prevent towns from inadvertently giving away to the cellular companies the power that rightfully remains with local governments.
 

1. Jon Healey, Towering Controversies, Governing, Feb. 1996, at 37.

2. Companies that have purchased PCS licenses for Western New York include Sprint Spectrum, L.P., AT & T Wireless Services, Inc., and Omni Point PCS Entrepreneurs Inc. Local cellular providers include Frontier Cellular and Cellular One.

3. Federal Communications Commission, New National Wireless Tower Siting Policies, Apr. 23, 1996, at 8.

4. Michelle Gregory and Douglas Martin, Cellular Facilities: A Survey of Current Zoning Practices, Zoning News, American Planning Association, Apr. 1996, at 1.

5. There are three common types of traditional towers: (1) a monopole, which is basically a narrow cylinder with the antennae mounted at the top; (2) a lattice or free-standing tower, which has a more open design; and (3) a guyed tower, which is a narrow tower with multiple guy lines to anchor it. See James W. Humes, Hot Buttons: Cellular Towers, Town Topics, July/August 1996, at 4.

6. See also Cellular Telephone Co. v. Meyer, 200 A.D.2d 743, 607 N.Y.S.2d 81 (2d Dep't 1994)(cellular telephone company was a "public utility" entitled to favored status when considering its site plan application).

7. Section 704 (amending 47 U.S.C. section 332(c)).

8. See Michelle Gregory and Douglas Martin, Cellular Facilities: A Survey of Current Zoning Practices, Zoning News, American Planning Association, Apr. 1996, at 1; Jon Healey, Towering Controversies, Governing, Feb. 1996, at 38.

9. 47 U.S.C. 332(c)(7)(B)(I).

10. 47 U.S.C. 332(c)(7)(B)(iv).

11. 47 U.S.C. 332(c)(7)(B)(ii), (iii).

12. 47 U.S.C. 332(c)(7)(c).

13. Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 61 Fed.Reg.41006-41019 (1996) (to be codified at 47 CFR Parts 1, 2, 15, 24, and 97).

14. In general, cellular communications facilities and devices are associated with low levels of electromagnetic energy. There are three wireless communication sources that generate and use it: cellular antennas, hand-held cellular communications devices, and electrical equipment housed in storage buildings and switching stations. When the electromagnetic energy is generated by radio frequency waves emanating through space, there is a byproduct known as radio frequency radiation. Electromagnetic radiation is broken into two groups: ionizing and non-ionizing radiation. Radio frequency radiation is non-ionizing, which means it does not possess enough energy to create ions. Ionizing radiation, on the other hand, is capable of altering the chemical structure of organic matter. Cellular communications devices and facilities generate non-ionizing radiation. Michelle Gregory and Douglas Martin, Cellular Facilities: A Survey of Current Zoning Practices, Zoning News, American Planning Association, Apr. 1996, at 4-5.

15. An enactment of a moratorium upon certain land use or development within a municipality will be considered a valid stopgap or interim measure where it is reasonably designed to temporarily halt development while the municipality considers, inter alia, comprehensive zoning changes. However, the moratorium must be for a valid and reasonable purpose, and the moratorium may only continue for a reasonable period of time. See Cellular Telephone Co. v. Village of Tarrytown, 209 A.D.2d 57, 66, 624 N.Y.S.2d 170, 176 (2d Dep't 1995).

16. Sprint Spectrum, L.P., v. Town Board of the Town of Webster (Index No. 8310/96, Monroe Co.).

17. Village of Honeoye Falls v. Town of Mendon Zoning Board of Appeals (Index No. 96/317, Monroe Co.), consolidated with Sycamore Run, Inc. v. Town of Mendon Zoning Board of Appeals (Index. No. 96/347, Monroe Co.).

18. WEOK Broadcasting Corp. v. Planning Board of Town of Lloyd, 79 N.Y.2d 373, 583 N.Y.S.2d 170 (1992).

19. Id.

20. Site specific environmental impact statements would still be required for individual applications.