Agenda - Planning Commission - 09/08/2011

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Finally, some courts have specifically allowed the "written decision" by a munici- pality explaining the reasons for denying a zoning request to occur after it acts on a zoning request by denying it. In the appro- priate circumstance, this may allow a mu- nicipality to comply with the shot clocks by issuing a denial within the appropriate time period and then issuing the separate written decision shortly thereafter. Even though, as of mid-zo11, the shot clock orders are currently in effect, there is serious doubt as to their validity. In part this is due to language at the start of the Act preventing any provision of the Federal Communications Act of 1934 from being used to "limit or affect" a municipality's zoning authority other than as set forth in the Act. The Act also indicates that there should be individualized time periods for each application, and the committee report accompanying the Act states that in terms of timing it is not intended to give "preferential treatment" to cell tower zoning applications compared to other zoning matters. Finally, the committee report emphasizes that the time for action should be the "usual time period under the circumstances." A court appeal of the shot clock orders on these (and other) grounds is currently pending and is likely to be decided in late zo11. Municipalities should periodically check as to the outcome of this appeal, City ofArlington v. FCC, No. 10-60039 (5th Cir.). Substantial Evidence The Act requires that there be "substantial evidence" supportinga municipality's cell tower zoning decisions. The cases are all in agreement on this; specifically, the courts have formulated the standard that there must be "more than a scintilla but less than a preponderance" of evidence in the written record supporting a municipality's decision. The courts have emphasized that this stan- dard means they must uphold a municipal- ity's decision if the facts meet the preceding low standard even if the court would have reached a different conclusion were it free to consider the matter afresh. In other words, the courts have stated that they cannot substitute their judgment for that of the municipality and try the zon- ing case anew. However, this deference only applies to factual support for substantive matters such as the impact of a cell tower on property values, the environment, or fragile environmental areas. It does not apply to claims for violations related to the radio fre- quency emissions or "prohibition of service" provisions of the Act. The federal court covering mid -Atlantic Coast states has emphasized that the views of residents or laymen should be consid- ered and may be given some weight by a municipality. It also emphasized that the "predictable barrage" of expert testimony from a cell phone provider does not neces- sarily trump or mandate approval of a cell tower zoning request over the objections of residents. Other courts have also allowed citizen testimony to be used as evidence to support a denial of a cell tower zoning request. However, the issue of how much weight to give to the testimony of ordinary citizens tends to be case -specific and can vary greatly depending on factors such as effects from "cell tower radiation" will not be allowed (because federal law prohibits the municipality from considering them). Second, if a speaker attempts to raise such issues, he or she should promptly be stopped on the same grounds. Third, if at- tempts persist, it may be desirable to point out that allowing testimony against the tower based on RF health effects actually increases the likelihood that the cell tower will be approved. This is because the cases are clear in holding that if the court be- lieves the real reason for denial of a zoning application was on RF-emissions grounds, it will usually order that the zoning applica- tion be granted. At a minimum, allowing such testimony gives the cell tower ap- plicant clear grounds to appeal a denial to federal court. Numerous cases under the Telecommunications Act hold that the allowable grounds for local zoning decisions on cellular towers include aesthetics, impact on property values, proximity to a historic district, safety, environmental impacts, and the impact of a commercial operation on a residential neighborhood. the number of statements and how detailed and persuasive they are in terms of their facts and reasoning. Radio Frequency Emissions Preemption The Act (47 U.S.C. § 332(c) (7)(B) (iv)) pre- vents municipalities from denying or con- ditioning cell tower zoning based upon the "environmental effects of radio frequency emissions" (often pejoratively termed "ra- diation") from cell towers, to the extent they comply with FCC emission rules (47 C.F.R. § 1.1307 et seq.). This provision is part of the more general federal preemption of states and municipalities from regulating matters relating to radio frequency (RF) emissions. What municipalities may do is enforce the FCC's emission rules, including reviewing a tower's planned compliance with the rules. Municipalities can face emotional requests that a cellular zoning applica- tion be denied due to RF-related health concerns. The best legal advice in these circumstances is three -fold: First, state at the start of a zoning hearing that com- ments or claims about the adverse health SUBSTANTIVE ZONING RULES Because the Act does not affect traditional local substantive zoning principles, it is gen- erally a local decision to choose between having fewer, taller towers with more colo- cations or more, shorter towers with less colocation. Similarly, numerous cases under the Act hold that the allowable grounds for local zoning decisions on cellular tow- ers include aesthetics, impact on property values, proximity to or view from a historic district or structure, safety (if the tower fell, property or persons could be hurt, especially on adjacent properties), environmental impacts (e.g., fragile areas, wetlands), and the impact of a commercial operation on a residential neighborhood. The courts have rejected tower company complaints that local zoning requirements can increase the cost of a tower, for example, by requiring that it be camouflaged, or reject- ing a single tower to be placed at the top of the scenic ridge in favor of shorter towers on either side that have a less prominent visual impact. Aesthetic objections tied to scenic vistas, proximity to historic districts, or views ZONING PRACTICE 8.11 AMERICAN PLANNING ASSOCIATION (pages