Agenda - Planning Commission - 09/08/2011

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from national parks are particularly likely to be upheld by the courts. The Act prohibits "unreasonable dis- crimination" in cell tower zoning. The courts have interpreted this to mean that differ- ences in the treatment of cell towers are allowed as long as there is a valid, articu- lated basis for the difference. For example, just because a cell tower has been allowed in one residential area does not mean that they must be allowed other residential areas if there are legitimate reasons for the differ- ence (e.g., visibility, height, impact on the neighborhood or property values, etc.). CAMOUFLAGING Well -camouflaged cell towers are nearly invisible. Cellular companies can object due to their increased cost, but camouflaged towers are a very effective way to allow a cell tower to be placed where it is needed with little or no impact on aesthetics, historical sites and views, or property values. In urban settings, cell phone anten- nas are routinely concealed in sculptures, signs, billboards, church steeples, water tanks, crosses, and parapets of buildings. Meanwhile, in rural and suburban areas, towers are effectively concealed as trees and are nearly indistinguishable from the real thing (apart from being taller than nearby trees). In the southwest, cell towers are effectively camouflaged as large cactuses (e.g., saguaro cactuses). Many pictures of camouflaged cell towers are available at http://CellularPCS.com/gallery. From a legal standpoint, there have been virtually no cases under the Act chal- lenging camouflaging requirements in local zoning decisions. However, municipalities are well advised to be highly specific in any camouflaging requirements they impose and to require compliance with photo simu- lations, as there are examples of unsuccess- ful camouflaging. GAPS IN SERVICE AND ALTERNATE SITES The Act bars municipalities from taking zon- ing actions that "prohibit or have the effect of" prohibiting personal wireless services. As a practical matter this provision usually refers to claims by providers of gaps in cov- erage and that there are no feasible alter- nate sites for the tower proposed to fill the gap. Severa[points should be noted. First, small gaps in coverage are expressly allowed by the FCC, and the courts have noted this. It is only "significant" gaps that typically trigger a "prohibition in service" requirement. Second, there are differences between the federal appellate courts on how they apply the "prohibition of service" provi- sion. Municipalities should consult their attorneys to make sure they are following the Act as interpreted by the federal courts in their area. Third, and perhaps most important, gap analysis deals with radio frequency propagation and computer models that try to predict both whether there is a gap and the height and location of the cell tower that will fill the gap. These maps are comparable to a weather map for the day after tomorrow —predictions based upon a range of factors —and for that reason are rarely completely accurate. The computer programs used to generate the map take the topography and buildings in the area and then apply a range of "typical" factors and assumptions selected by the wire- less applicant to generate a map showing how RF signals will likely propagate in the area in question. The resulting map costs relatively little to create, is sensitive to its inputs, and can be skewed in favor of the provider's zoning request. Municipalities should require provid- ers to set forth all evidence supporting a gap/prohibition of service claim so that the municipality can consider it. This will pre- vent providers from withholding significant evidence until a court challenge, or, if they do, will allow the municipality to seek a re- mand so it can consider the new evidence. Requiring the applicant to make actual RF measurements in the field is the only way to accurately determine the actual size and contours of'a gap and the shortest tower at a specific location that will fill it. Typically, a small antenna is suspended from a crane at a given location and height; technicians then measure the signal strength in a variety of directions and distances. They repeat the pro- cess with the antenna at different heights to determine the shortest tower height that will (Left) A[though tallerthan surrounding'' trees towerscamouflaged:asevergreens can' be a logical aesthetrc compromiseKin rural N ewEngland (Below) This ioo foot: pross at Epiphany Lutheran Church tn `. Lake Worth,_ Florrda,:flouses a ;cell tower y Aiter the new camouflaged tower was _ :y completed th church removed the srn_aller cross m the foreground ZONING PRACTICE 8.si AMERICAN PLANNING ASSOCIATION Ipage 6