Presenting a live 90 ‐ minute webinar with interactive Q&A Municipal Regulation of Cell Phone Towers Resolving Zoning, Siting and Environmental Issues; Evaluating Revenue Sharing Opportunities WEDNESDAY, JULY 13, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: T d ’ f l f Thomas McKevitt, Special Counsel, Sahn Ward Coschignano & Baker , Uniondale, N.Y . Chris J. Coschignano, Partner, Sahn Ward Coschignano & Baker , Uniondale, N.Y . Richard J. Lemanowicz, Partner, Lemanowicz , Lower Gwynedd, Pa. Charles Fletcher, Gray Robinson , Tampa, Fla. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Cell Tower Zoning Regulation and Cases Thomas McKevitt, Esq. Sahn Ward Coschignano & Baker, PLLC (516) 228 ‐ 1300 tmckevitt@swcblaw.com 5
Federal Zoning Preemption Federal Zoning Preemption • Zoning is a state and local issue except in two Zoning is a state and local issue except in two areas where Congress has imposed federal regulation: regulation: • Religious Uses (RLUIPA passed in 2000) and • Telecommunications T l i i 6
Telecommunications Act of 1996 Telecommunications Act of 1996 • 47 U S C Section 332(c)(7) 47 U.S.C. Section 332(c)(7) • States that nothing shall limit or affect the authority of a State or local government over authority of a State or local government over decisions regarding the placement, construction or modification of personal construction or modification of personal wireless services. 7
Telecommunications Act of 1996 Telecommunications Act of 1996 • However the local body cannot: However, the local body cannot: • Unreasonably discriminate among providers. • Shall not prohibit or have the effect of Sh ll hibi h h ff f prohibiting service. • Regulate on the basis of environmental effects of radio frequency emissions to the extent that such facilities comply with FCC regulations. 8
Telecommunications Act of 1996 Telecommunications Act of 1996 • Environmental effects mean health effects Environmental effects mean health effects. • Regardless what the WHO or what other studies may show Congress has specifically studies may show, Congress has specifically prohibited an inquiry in this area. • Such data should not be admitted into S h d h ld b d i d i evidence, and there should be no discussion of these factors. f h f 9
Health Affects Health Affects • Although raising health concerns does not Although raising health concerns does not violate the Act, a denial will not be sustained when health concerns play a role in the when health concerns play a role in the community opposition and a zoning board’s decision to deny a permit decision to deny a permit. • T ‐ Mobile Northeast LLC v. Town of Ramapo, 701 F Supp 2d 446 (S D N Y 2009) 701 F. Supp.2d 446 (S.D.N.Y. 2009). 10
Discrimination Among Carriers Discrimination Among Carriers • When a provider is denied a permit to co ‐ When a provider is denied a permit to co locate on an existing tower which contains the antennae of competitors it has been antennae of competitors, it has been unreasonably discriminated. • Omnipoint Communications Inc v Town of • Omnipoint Communications, Inc. v. Town of LaGrange, 658 F.Supp.2d 539 (S.D.N.Y. 2009). 11
Legal Standard Legal Standard • For several years there was a Circuit split on For several years, there was a Circuit split on what standard a carrier had to prove. • Federal Courts required an applicant to show • Federal Courts required an applicant to show that there was a gap in service. • Third Circuit said that the gap had to be for all Thi d Ci i id h h h d b f ll carriers, not just the applicant. • First, Seventh and Ninth Circuit said the gap need only be for the applicant carrier. 12
Legal Standard Legal Standard • Second Circuit held that a carrier had to Second Circuit held that a carrier had to demonstrate that the application was the least intrusive means for closing a significant least intrusive means for closing a significant gap in service. Sprint v. Willoth, 176 F.3d 630 (1999) (1999). • However, district courts differed on whether the gap was for all carriers or just the the gap was for all carriers or just the applicant. 13
Legal Standard Legal Standard • FCC in its 2009 Declaratory Ruling determined FCC in its 2009 Declaratory Ruling determined that gap was for the individual carrier. • To rule otherwise would ignore the fact that • To rule otherwise would ignore the fact that the first carrier may not provide service to the entire locality and prohibiting additional entire locality, and prohibiting additional carriers could lead to a population being unserved or underserved unserved or underserved. 14
Act in a Reasonable Period of Time Act in a Reasonable Period of Time • FCC’s Declaratory Ruling in 2009 set up a FCC s Declaratory Ruling in 2009 set up a “Shot Clock”: • After an application has been filed a • After an application has been filed, a municipality has 30 days to determine if the application is complete application is complete. 15
Act in a Reasonable Period of Time Act in a Reasonable Period of Time • Once the application is deemed complete a Once the application is deemed complete, a municipality has 90 to process an application for a co ‐ location and 150 days to process for a co location and 150 days to process other applications (e.g. construction of a new monopole) monopole). 16
Act in a Reasonable Period of Time Act in a Reasonable Period of Time • Failure to act within a deadline does not deem Failure to act within a deadline does not deem the application granted. • It only creates a rebuttable presumption of • It only creates a rebuttable presumption of unreasonableness. 17
Aesthetic Considerations Aesthetic Considerations • Courts have held that aesthetic considerations Courts have held that aesthetic considerations can be a basis to deny an application. • Cellular Telephone Co v Town of Oyster Bay • Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999) • Omnipoint Communications, Inc. v. City of O i i C i i I Ci f White Plains, 430 F.3d 529 (2d Cir. 2005). 18
Aesthetic Considerations Aesthetic Considerations • In Oyster Bay the court determined that In Oyster Bay, the court determined that denial for aesthetic considerations failed the substantial evidence test substantial evidence test. • This is because the residents’ comments at the public hearing failed to “articulate the public hearing failed to articulate specifically how the proposed cell sites would have an adverse impact on the community” have an adverse impact on the community. 19
Aesthetic Considerations Aesthetic Considerations • In White Plains the Court upheld a denial on In White Plains, the Court upheld a denial on aesthetic grounds for the public objections were pervasive and “raised by neighbors who were pervasive and raised by neighbors who know the local terrain and the sightlines of their homes ” their homes. • Neighbors who called the proposal an “eyesore” said that the tower could not be eyesore said that the tower could not be effectively camouflaged. 20
Current Litigation Current Litigation • The Town of Hempstead on Long Island New The Town of Hempstead on Long Island, New York enacted a new ordinance that prohibits wireless communication facilities within 1500 wireless communication facilities within 1500 feet of residences, schools and houses of worship worship. 21
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