Agenda - Planning Commission - 02/03/2011

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Zoning Bulletin August 10, 2010 I Volume 4 No. 15 higher the score, the lower the scrutiny —thus entitling applicants to "a faster and less rigorous evaluation by the Planning Board." The Ordi- nance gave applicants that used "preferred alternate technology," such as "microcell" or "distributed antenna systems " — resulting in smaller towers —a preference by way of a significant award of points. In August 2007, several telecommunication carriers (the "Carriers") sued the town. They asked the court to declare that the Ordinance was preempted by the federal Telecommunications Act. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court issued summary judgment in favor of the Carriers. The court held that the provisions in the Ordinance granting a preference for certain "alternative technologies" were preempted by the Telecommunications Act. Federal regulations implemented under the Act regulate the use of technical and operational aspects of wireless tele- communications service. The court found that the Ordinance interfered with this federal regulatory scheme for wireless technology. The town appealed. DECISION: Affirmed. Agreeing with the reasoning of the district court, the United States Court of Appeals, Second Circuit, held that the Ordinance was impliedly preempted by the federal Telecommunications Act. The court explained that, in general, there were three types of pre- emption: "(1) express preemption, where Congress has expressly pre- empted local law; (2) field preemption, `where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law'; and (3) conflict preemption, where lo- cal law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives." The district court had concluded that the Ordinance was preempted by field preemption. The court of appeals agreed. Federal law clearly occu- pies the field of the regulation of the technical and operational aspects of wireless telecommunications service, found the court. Federal regulations set technical standards for wireless technology, including antennas. The Ordinance's provisions setting forth a preference for "alternate technolo- gies" interfered with this federal field of regulation, said the court. Be- cause by establishing a "preference" for certain wireless technology (i.e., microcell and distributed antenna systems), the Ordinance "relegate[d] other technology— including technology that would meet the FCC's [Fed- eral Communications Commission] standards —to an inferior and de- cidedly disadvantaged status." "As a consequence," said the Court, the Ordinance "interfere[d] with Congress's goal of facilitating the spread of new technologies and the growth of wireless telephone service." See also: Wachovia Bank, N.A. v. Burke, 414 F.3d 305 (2d Cir. 2005). © 2010 Thomson Reuters 3