Federal Limits on Local Land Use Control Local Regulation of Wireless Service Facilities

April 1, 1999 Advisory
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As some Connecticut towns have discovered, recent federal legislation further diminishes state and local control over the placement of telecommunication towers and antennas. The Telecommunications Act of 1996 (the "Act") limits the power of state and local governments to regulate the placement, construction, and modification of "personal wireless service facilities" ("PWS Facilities"). Specifically, the Act provides that such regulation shall neither unreasonably discriminate among providers of functionally equivalent services nor prohibit or have the effect of prohibiting the provision of personal wireless services. Furthermore, any decision by state and local governments to deny a request to place, construct, or modify PWS Facilities must be in writing and supported by substantial evidence in a written record.

In Connecticut, some PWS Facilities fall within the "exclusive jurisdiction" of the Siting Council, while others may be regulated by municipal agencies. In general terms, the Siting Council has statutory authority over all PWS Facilities with the exception of the following:

  1. PWS Facilities installed adjacent to and for the purpose of temporarily replacing a damaged facility;
  2. one-for-one replacement of PWS Facilities;
  3. modification to or replacement of a PWS Facility that does not substantially alter its size or its radio frequency sending and receiving capabilities; and
  4. placement of PWS Facilities on an existing structure that is not used primarily to support PWS Facilities.

While the Act limits the ability of both the Siting Council and local agencies to regulate PWS Facilities, it is most often invoked to challenge the decisions of local agencies. The majority of cases interpreting the Act address failures of local zoning boards or commissions to support decisions with substantial evidence. More fundamental to the issue of the precise boundaries of municipal authority, however, is the Act's mandate that no local regulation shall "prohibit or have the effect of prohibiting the provision of wireless services."

While case law reveals considerable inconsistency and few established principles, it seems clear that any ordinance that explicitly prohibits or has the necessary effect of prohibiting PWS Facilities in a town or a particular area of town for an indefinite period will be deemed invalid. It is less clear whether a decision denying an application can violate this statutory ban.

The Court of Appeals for the Fourth Circuit took the position that only "blanket prohibitions" or "general bans or policies," and not individual decisions, violate the federal ban. In AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, the court reasoned that to apply the prohibition "to individual decisions would effectively nullify local authority by mandating approval of all (or nearly all) applications." Very recently, the Court of Appeals for the First Circuit, in Amherst v. Omnipoint Communications Enterprises, Inc., refused to adopt the holding in the AT&T case, holding instead that an individual decision would violate the Act if it "announces that no towers will ever be allowed or sets criteria that no one could ever meet." In applying that rule to the case before it, however, the court found that Omnipoint had failed to meet the "heavy burden" of "showing from language or circumstances... that further reasonable efforts are so likely to be fruitless that it is a waste of time to try."

Both courts agree that an explicit ban on PWS Facilities would violate the law. In addition, certain regulations, neutral on their face, may have the effect of prohibiting service if, despite being objectively administered in accordance with state and local law, the result is that all possible sites in a given area will be rejected. For example, a zoning regulation requiring all "public utility facilities" to be hidden from view by a fence would realistically preclude the provision of wireless services necessarily requiring towers over 100 feet tall. This does not mean, however, that it is a violation to deny an application simply because the proposed site was the only one the service provider was able to lease or purchase at that time.

Most district courts appear to apply the reasoning of the Amherst case, scrutinizing the application of regulations to particular submissions. Zoning regulations that prevent any facilities from being built unless some form of special permission, such as a variance or special use permit, is obtained are generally upheld provided that each application is reviewed on its individual merits. While such regulations may incorporate subjective criteria that provide ample opportunity for a local agency to deny an application in virtually any factual scenario, as the Amherst court noted, "the very breadth and vagueness of the criteria that permit the Board to deny requests also give the Board some flexibility in deciding whether to grant them."

A municipality will run afoul of the Act when an individual decision evinces a general bias against all PWS Facilities. Such a bias has been shown through statements by town council members that they opposed installation of a telecommunications tower anywhere in town or anywhere in a particular zoning district and through proof that one or more council members acted in concert with residents to prevent construction of a tower. On the other hand, the fact that other providers have obtained the requisite permission is strong evidence that the regulations are being applied in a neutral manner. Where there is no evidence of bias, but it can be shown that a facially neutral policy was applied arbitrarily, the decision of the local agency is more properly challenged as being discriminatory or lacking substantial evidence.