Wednesday, December 3, 2008
Few land use topics involve a clash of federal and local law as much as cell phone towers. The issue creates a social conundrum: everyone loves cell phones, but everyone hates the ugly towers. Federal law, pushed by the economics of national commerce, generally favors construction. On the other hand, local land use law often is encouraged to push towers to adjoining localities, so that the community can “free ride” on towers placed a distance away. Then there’s the complication of environmental concerns –- while some fear the potential exposure to radiation, there is perhaps an even bigger fear that local governments will use health concerns as a mask to push towers to their neighbors. In the Telecommunications Act of 1996, section 704 (47 U.S.C. 332(c)(7)) limited the ability of local governments to exercise their zoning powers against towers, especially when environmental arguments are asserted or when one company is disadvantaged. But some cases have interpreted local power more broadly than perhaps Congress (and the cell companies) might have wanted. One of my favorite cases upheld a New Hampshire town’s decision to deny a variance request in order to protect the scenic vista in a hilly area from a plan to build a tower disguised as pine tree (493 F. Supp. 2d 199 (2007)). Hurrah for the environment and local control, one is tempted to say – except when one thinks of potential cases in which a town may be encouraged to favor one company’s service at the expense of your own company’s.
Score another victory this week for local control. The federal government has decided to pull back planned federal regulations that would have required all cell phone towers to have at least eight hours of backup energy. The idea is to keep phone service going even after an accident or disaster. But the federal Office of Management and Budget concluded that the FCC hadn’t justified the regulation adequately. Among other problems, the bulking up of existing cell phone towers with big batteries or generators might cause huge clashes with local zoning and land use laws …
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