Zoning Commission Packet 2013 08-28-13 United City of Yorkville
'`'` 800 Game Farm Road
EST. , _ 1836 Yorkville, Illinois 60560
-4 Telephone: 630-553-4350
0� a 2p� Fax: 630-553-7575
AGENDA
ZONING COMMISSION MEETING
Wednesday,August 28, 2013
7:00 P.M.
City Hall Conference Room
800 Game Farm Road
1. Welcome
2. Roll Call
3. Citizen's Comments
4. Approval of meeting minutes
5. Old Business:
a) Review and Commentary of Proposed Revised Zoning Chapter
* Chapter 16: Off Street Parking and Loading
b) Review and Commentary of Proposed Revised Zoning Chapter
* Chapter 18: Telecommunication Towers and Antennas
6. New Business:
7. Adj ournment
8. Next meeting date: September 25,2013
*Potential alternate meeting date for September to be discussed*
Memorandum
0
EST 1836 To: Zoning Ordinance Commission
From: Jason Engberg, Planning Intern
A� W r CC: Krysti J. Barksdale-Noble, Community Development Director
Bart Olson, City Administrator
<LE ,�'`�.�' Date: August 28, 2013
Subject: Zoning Ordinance Update—Notes
Staff has prepared an updated Chapter 17: Fencing and Screening and Chapter 18:
Telecommunication Tower and Antenna Regulations for the Yorkville Zoning Commission.
The following revisions have been made:
Chapter 17
• Residential District and Commercial District tables have been changed according to previous
meeting recommendations
• Added regulation regard
Chapter 18
• Reformatted entire chapter to match all other chapters
• Added portion in section 10-18-5 to allowing special use in E-1 district.
• Must discuss section 1018-4 to make sure all wording is correct and there is a clear meaning of
what is aloud and what is not.
Chapter 18: Telecommunication Towers and Antennas has been sent to the city attorney for additional
review to make sure no federal or state laws are being fringed upon.
Please look over these items and be ready to discuss at the Zoning Commission meeting.
CHAPTER 17
Fencing and Screening
10-17-1 Purpose
The intent of this chapter is to set guidelines for building on property fences and screening undesirable structures or
storage containers. The following regulations are made so the city can promote the health, safety, and general welfare of
the public.
10-17-2 Fencing Standards
A. Regulations for All Zoning Districts
• Fences of more than 30 inches in height require a building permit.
• All fences must be erected so that the finished side of the fence faces outward or away from the lot on which the fence
is erected.
• No more than two different types of fencing material are permitted per fence.
Placement
• Fences may be built up to the property line and must be located entirely on the property of the owner constructing it.
Fences may be constructed within an easement, though future work within the easement may result in the removal
of the fence. Fences are not allowed in some types of restricted easements, such as those dedicated for landscape,
sidewalks,trails or access.
• The City of Yorkville does not provide surveying services. The property owner is responsible for locating property
lines.
• Fences, walls or hedges shall not encroach on any public right-of-way.
• It shall be the responsibility of the property owner to insure that a fence does not block or obstruct the flow of storm
water.
• No solid fence, wall, hedge or shrubbery which exceeds 3 feet above the street grade shall be permitted
within the sight distance triangle formed at the intersection of any two 2 street right-of-way lines.
• the intersection of any street right-of-way lines with any service entrance drive (both sides of such drive), by
a line drawn between such right-of-way lines, and/or such right-of-way line and service entrance drive line,
at a distance along such line of 25 feet from the point of intersection thereof.
Maintenance
• It shall be the responsibility of the owner and/or occupant of the property where a fence is erected to maintain the
fence in good repair at all times. If a fence is found to be in a deteriorated condition and/or in need of repair, the
Community Development Director may order the fence to be repaired, replaced or removed depending upon the
condition of the fence. Such order shall be in writing.
• Missing boards, pickets or posts shall be replaced within 45 days with material of the same type and quality.
• Fences shall be maintained in an upright condition.
Prohibited Fences
• Fences or enclosures charged with or designed to be charged with electrical current are prohibited.
• Any fence made of, in whole or in part, cloth, canvas or other like material is prohibited.
• No Fence shall be constructed of used or discarded materials in disrepair, including, but notlimited to, pallets,
tree trunks, trash, tires,junk, or other similar items.
[ United City of Yorkville Zoning Ordinance ] [ 1 ]
Chapter 17: Fencing and Screening
B. Regulations for Residential Districts
Height
Except as otherwise permitted in this ordinance, annexation agreements, Planned Unit Developments or any other
development related agreements or Ordinances fences shall not exceed the maximum height as listed in Table 10.17.01.
Materials
Residential District Fence Heights Table The following materials are accepteable
for the any residential district:
Yard Maximum Height 0 Stone
Front Yard 3 Feet 0 Brick
4 Feet if at a maximum 50%opacity 0 Natural Rot Resistant Wood (Cedar,
Interior Side Yard 6 Feet Cyprus, Redwood)
8 Feet if adjacent to a non-residential use 0 Cast or Wrought Iron
Corner Side Yard 3 Feet 0 Plastic
4 Feet if at a maximum 50%opacity . Aluminum
Rear Yard 6 Feet 0 Composite Wood and Plastic
8 Feet if adjacent to a non-residential use
• Vinyl Coated Chain Link
These materials are an example of acceptable fencing. The Community Development Director has the right to aprrove
materials not listed as long as they are consistent with the surrounding land use.
C. Regulations for Business Districts
Height
Except as otherwise permitted in this ordinance, annexation agreements, Planned Unit Developments or any other
development related agreements or Ordinances fences shall not exceed the maximum height as listed in Table 10.17.02.
Table 10.17.02
Business District Fence Heights
Yard Maximum Height
Front Yard 3 Feet
4 Feet if at least 50%opacity
Interior Side Yard 6 Feet
8 Feet if adjacent to a residential use
Corner Side Yard 3 Feet
4 Feet if at least 50%opacity
Rear Yard 6 Feet
8 Feet if adjacent to a residential use
Materials
The following materials are accepteable for the any business district:
• Stone 0 Plastic
• Brick • Aluminum
• Natural Rot Resistant Wood (Cedar, Cyprus, Redwood) • Composite Wood and Plastic
• Cast or Wrought Iron • Vinyl Coated Chain Link
These materials are an example of acceptable fencing. The Community Development Director has the right to aprrove
materials not listed as long as they are consistent with the surrounding land use.
[ United City of Yorkville Zoning Ordinance ] [ 2 ]
Chapter 17: Fencing and Screening
D. Regulations for Business Districts
Height
Except as otherwise permitted in this ordinance, annexation agreements, Planned Unit Developments or any other
development related agreements or Ordinances fences shall not exceed the maximum height as listed in Table 10.17.03.
Table 10.17.03
Industrial District Fence Heights
Yard Maximum Height
Front Yard 8 Feet
Interior Side Yard 8 Feet
Corner Side Yard 8 Feet
Rear Yard 8 Feet
Materials
The following materials are accepteable for the any industrial district:
• Stone 0 Plastic
• Brick • Aluminum
• Finished Wood • Composite Wood and Plastic
• Cast or Wrought Iron • Chain Link
• Barbed Wire (On top of fence, minimum 6'tall)
These materials are an example of acceptable fencing. The Community Development Director has the right to aprrove
materials not listed as long as they are consistent with the surrounding land use.
D. Regulations for Public Uses and Utilities
Height
Except as otherwise permitted in this ordinance, annexation agreements, Planned Unit Developments or any other
development related agreements or Ordinances fences shall not exceed the maximum height as listed in Table 10.17.04.
04
Utililty Fence Heights
Yard Maximum Height
Front Yard 8 Feet
Interior Side Yard 8 Feet
Corner Side Yard 8 Feet
Rear Yard 8 Feet
Materials
The following materials are accepteable for the any Public Use:
• Stone 0 Plastic
• Brick • Aluminum
• Finished Wood • Composite Wood and Plastic
• Cast or Wrought Iron • Chain Link
• Barbed Wire (On top of fence, minimum 6'tall)
These materials are an example of acceptable fencing. The Community Development Director has the right to aprrove
[ United City of Yorkville Zoning Ordinance ] [ 3 ]
Chapter 17: Fencing and Screening
10-17-3 Screening
Service yards, loading docks, large refuse containers and other like places that tend to be unsightly shall be screened from
view. Screening shall be equally effective at all times of the year.
yF I( Large Refuse Containers
!' Commercial trash dumpsters and other large waste
receptacles or equipment shall be screened on three sides
- with a solid opaque material wall at least six feet (6') in
height orto the extent where the wall screens the dumpster
from view. The material must match the building and have
an opaque single or double access gate on the fourth side. A
detail of the enclosure is required on the plan. Landscaping
is preferredto be put around the perimeter of the three
solid walls.
Industrial uses do not have to create an enclosure as long
as the container cannot be seen from the public view.
Utilities
- -- -� y� All utility equipment (meters, transformers, etc.) shall
be screened with appropriate plantings if located on the
ground or false walls or parapets if located on the roof. False
walls or parapets are not required for buildings located in
�- -` a manufacturing district. The Community Development
A Director decides what is an acceptable ammount of
screening during the plan review process.
Loading Areas
IIIIIWhen located across a street from residential zoned
I
a j ; property, all garage doors and loading areas on non-
residential property shall be concealed from view from
adjoining residential zoned property with a combination of
•- landscaping and/or hardscape screening such as solid gates
u or walls.
[ United City of Yorkville Zoning Ordinance ] [4 1
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Table 10.17.05
Fencing Material Examples
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CHAPTER 18
Telecommunication Tower and Antenna Regulations
10-18-1: Definitions
ALTERNATIVE TOWER STRUCTURE: Manmade trees, clock towers, bell steeples, light poles and similar alternative design
mounting structures that camouflage or conceal the presence of antennas and towers.
ANTENNA:Any structure or device used to receive or radiate electromagnetic waves as defined by the FCC or any successor
agency.
ANTENNA STRUCTURES: Those structures which include the radiating and/or receiving system, its supporting structures
(see definition of Tower), and any appurtenance mounted thereon as defined by the FCC or any successor agency.
BACKHAUL NETWORK: The lines that connect a provider's towers/cell sites to one or more cellular telephone switching
offices, and/or long distance providers, or the public switched telephone network.
FAA:The federal aviation administration.
FCC:The federal communication commission.
HEIGHT: When referring to a tower or other structure,the distance measured from the finished grade of the parcel to the
highest point on the tower or other structure, including the base pad and antenna structures.
NO-IMPACT ANTENNA AND TOWERS:A tower or antenna which is either: a) virtually invisible to the casual observer, such
as an antenna behind louvers on a building, or inside a steeple or similar structure, or b) camouflaged so as to blend in
with its surroundings to such an extent that it is no more obtrusive to the casual observer than the structure on which
it is: 1) placed, such as a rooftop, lighting standard, or existing tower, or 2) replacing, such as a school athletic field light
standard.
PERSONAL WIRELESS FACILITY: Any facility for the provision of personal wireless services as defined by the FCC or any
successor agency.
PERSONAL WIRELESS SERVICES: Commercial mobile services, unlicensed wireless services and common carrier wireless
exchange access services as defined by the FCC or any successor agency.
PREEXISTING TOWERS OR ANTENNAS: Any tower or antenna for which a building permit or conditional use permit has
been properly issued prior to the effective date hereof, including permitted towers and antennas that have not yet been
constructed so long as such approval is current and not expired.
TOWER: Any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for
telephone,radio and similar communications purposes,including self-supporting lattice towers,guyed towers,or monopole
towers. The term includes radio and television transmission towers, microwave towers, common carrier towers, cellular
telephone towers, alternative tower structures, and the like.The term includes the structure and any support thereto.
TOWER AND ANTENNA ORDINANCE: Shall refer to this chapter.
UNLICENSED WIRELESS SERVICE: That service which offers telecommunications services using duly authorized devices
which do not require individual licenses issued by the FCC, but does not mean the provision of direct to home satellite
services as defined by the FCC or any successor agency.
[ United City of Yorkville Zoning Ordinance ] [ 1 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
10-18-2: Applicability
A. New Towers And Antennas
All new towers or antennas in Yorkville shall be subject to these regulations, except as provided in subsections B through
D of this section inclusive.
B.Amateur Radio Station Operator/Receive Only Antennas
This chapter shall not govern any tower, or the installation of any antenna, that is under eighty feet (80') in height and is
owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive only antennas.
No receive only antenna shall exceed the highest point on the nearest residential rooftop of a dwelling by more than ten
feet (10').
C. Preexisting Towers Or Antennas
Existing towers and existing antennas which predated this chapter, shall not be required to meet the requirements of this
chapter other than the requirements of subsections , F, H and R of this chapter. All preexisting towers and
antennas shall be subject to the tower and antenna administrative fee as of January 1 following the effective date hereof.
D. AM Array
For purposes of implementing this chapter,AM array, consisting of one or more tower units and supporting groundsystem
which functions as one AM broadcasting antenna,shall be considered one tower.Measurements for setbacks and separation
distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may
be added within the perimeter of the AM array by right.
10-18-3: General Requirements
A.Special Or Miscellaneous Use
Antennas and towers may be considered either special or miscellaneous uses. A different existing use of an existing
structure on the same lot shall not preclude the installation of an antenna or tower on such lot.
B. Lot Size
For purposes of determining whether the installation or a tower or antenna complies with Yorkville's development
regulations, including, but not limited to, setback requirements, lot coverage requirements, and other such requirements,
the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within
such lot.
C. Inventory Of Existing Sites
Each applicant for approval of an antenna and/or tower shall provide to the zoning officer an inventory of its existing
towers,antennas,or sites approved for towers or antennas,that are either within the jurisdiction of Yorkville or within one
mile of the border thereof, including specific information about the location, height, and design of each tower.The zoning
officer may share such information with other applicants applying for administrative approvals or special use permits under
this chapter or other organizations seeking to locate antennas within the jurisdiction of Yorkville, provided, however that
the zoning officer is not, by sharing such information, in any way representing or warranting that such sites are available
or suitable.
D.Aesthetics
Towers and antennas shall meet the following requirements:
1.Towers shall either maintain a galvanized steel finish or,subject to any applicable standards of the FAA, be painted a
neutral color so as to reduce visual obtrusiveness.
2.At a tower site,the design of the buildings and related structures shall,to the extent possible, use materials, colors,
textures, screening, and landscaping that will blend them into the natural settings and surrounding buildings.
3. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical
equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting
[ United City of Yorkville Zoning Ordinance ] [ 2 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
structure so as to make the antenna and related equipment as visually unobtrusive as possible.
E. Lighting
Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the
lighting alternatives and design chosen must cause the least disturbance to the surrounding views.
G. State Or Federal Requirements
All towers must meet or exceed current standards or regulations of the FAA, the FCC and any other agency of the state or
federal government with the authority to regulate towers and antennas. If such standards and regulations are changed,
then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance
with such revised standards and regulations within six (6) months of the effective date of such standards and regulations,
unless a more restrictive compliance schedule is mandated by the controlling state or federal agency. Failure to bring
towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal
of the tower or antenna at the owner's expense.
H. Building Codes/Safety Standards
Any owner or operator of an antenna, antenna structure or tower shall maintain the antenna, antenna structure or tower
in compliance with the standards contained in the current and applicable state or local building codes and the applicable
standards for towers that are published by the national electrical code NFPA 70 and BOCA building code; radio, television
sec. 3108, as amended from time to time. If, upon inspection, the city of Yorkville concludes that a tower fails to comply
with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the
owner of the tower,the owner shall have thirty(30) days to bring such tower into compliance with such standards. Failure
to bring the antenna,antenna structure,or tower into compliance within the thirty(30)day period shall constitute grounds
for the removal of the antenna, antenna structure or tower at the owner's expense.
I. Measurement
For purposes of measurement, tower setbacks and tower separation distances shall be calculated and applied to facilities
located in Yorkville irrespective of municipal and county jurisdictional boundaries.
J. Not Essential Services
Antennas, antenna structures, and towers shall be regulated and permitted pursuant to this chapter and shall not be
regulated or permitted as essential services, public utilities, or private utilities.
K. Public Notice
For purposes of this chapter, any special use request, variance request, or appeal of an administratively approved use or
special use shall require public notice and individual notice by the city of Yorkville to all abutting property owners and all
properties that are located within two hundred fifty feet(250')of the zoning lot in question.Streets,alleys and watercourses
shall not be considered in the determination of"abutting" nor in calculating the two hundred fifty feet(250').
L.Signs
No signs shall be allowed on an antenna or tower other than those required by the FCC.
M. Buildings And Support Equipment
Buildings and support equipment associated with antennas or towers shall comply with the requirements of subsection
of this chapter.
N. Multiple Antenna/Tower Plan
The city of Yorkville encourages all plans for towers and antenna sites to be submitted in a single application for approval
of multiple towers and/or antenna sites. Applications for approval of multiple sites shall be given priority in the review
process.
[ United City of Yorkville Zoning Ordinance ] [ 3 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
O.Antenna On Existing Structures
Any antenna which is not attached to a tower maybe approved by the city of Yorkville as an accessory use to any commercial,
industrial, professional, institutional, or multi-family structure of eight (8) or more dwelling units, provided:
1.The antenna does not extend more than thirty feet (30') above the highest point of the structure;
2.The antenna complies with all applicable FCC and FAA regulations; and
3. The antenna complies with all applicable building codes and safety standards as referenced in subsection H of this
section.
P.Antennas On Existing Towers
An antenna which is attached to an existing tower may be approved by the zoning officer and, to minimize adverse visual
impacts associated with the proliferation and clustering of towers, collocation of antennas by more than one carrier on
existing towers shall take precedence over the construction of new towers, provided such collocation is accomplished in a
manner consistent with the following:
1. Additional Antenna: A tower which is modified or reconstructed to accommodate the collocation of an additional
antenna shall be of the same tower type as the existing tower, unless the zoning officer allows reconstruction as a
monopole.
2. Height:
a. An existing tower may be modified or rebuilt to a taller height, not to exceed thirty feet (30') over the tower's
existing height, such height not exceeding one hundred fifty feet (150') in total, to accommodate the collocation
of an additional antenna.
b. The height change referred to in subsection P2a of this section may only occur one time per communication
tower.
c. The additional height referred to in subsection P2a of this section shall not require an additional distance
separation.The tower's premodification height shall be used to calculate such distance separations.
3. On Site Location:
a. A tower which is being rebuilt to accommodate the collocation of an additional antenna may be moved on site
within fifty feet (50') of its existing location.
b.After the tower is rebuilt to accommodate collocation, only one tower may remain on the site.
c. A relocated on site tower shall continue to be measured from the original tower location for purposes of
calculating separation distances between towers.The relocation of a tower hereunder shall in no way be deemed
to cause a violation of this chapter.
d.The on site relocation of a tower which comes within the separation distances to residential units or residentially
zoned lands as established in zoning ordinance shall only be permitted when approved by the zoning officer.
4. New Towers In Nonresidential Zoning Districts: An applicant may locate any new tower in an O, B-1, B-2, B-3, B-4,
M-1, M-2, or A-1 zoning district, provided that: a) a licensed professional engineer certifies the tower can structurally
accommodate the number of shared users proposed by the applicant; b) the zoning officer concludes the tower is in
conformity with the goals set forth in subsection P and the requirements of this subsection; c) the tower meets the
setback and separation requirements in subsection 10-18-5E of this chapter; and d) the tower meets the following
height and usage criteria:
a. For a single user, up to and including one hundred twenty feet (120') in height;
b. For two (2) users, up to one hundred fifty feet (150') in height; and
c. For three (3) or more users, up to and including one hundred eighty feet(180') in height.
Q. Roadway Access
All sites on which antenna,antenna structures and towers are located must have a passable roadway access of compacted
macadam base not less than seven inches (7") thick surfaced with not less than two inches (2") of asphaltic concrete or
some comparable dustless material.
[ United City of Yorkville Zoning Ordinance ] [4]
Chapter 18: Telecommunication Tower and Antenna Regulations
R. Fencing
The structures upon any site upon which an antenna, antenna structure, or tower is located shall be surrounded by an
opaque screen which is no less than six feet(6') in height and equipped with an appropriate anticlimbing device.Screening
materials shall include either wooden or chainlink fencing. Shrubbery and bushes shall be required, in addition to the
wooden or chainlink fence, unless specifically waived by Yorkville in its discretion in appropriate cases.
S. Disguised Structures
The provider of an antenna,antennastructure,or tower may propose to disguise the proposed antenna,antenna structure
or tower.Any such disguise must be aesthetically consistent with the character of the surrounding area and environment,
and be constructed in such a manner where the health or safety of Yorkville residents shall not be endangered. Yorkville
may require the disguise of an antenna, antenna structure or tower as a condition of approval of a building permit or
special use permit if the antenna, antenna structure or tower is to be erected on a golf course or other public recreational
area.
T.Annual Administrative Fee And Certifications
1.The annual administration fee payable to the city of Yorkville by any owner and/or operator of an antenna, antenna
structure, or tower shall be the sum of thirty five dollars ($35.00) which shall be due on or before January 10 of each
calendar year commencing with calendar year 2001.
2. That in the event a tower is inspected and a certification provided by the owner and/or operator of said tower or
related facility showing compliance with all regulations, the above fee shall be the only fee charged. In the event the
owner and/or operator of an antenna, antenna structure,or tower fails to have the certification as is required annually
to be filed with the city under the terms of this subsection,the owner and/or operator shall reimburse the city for the
actual cost of the outside consultant the city deems necessary to conduct said inspection which shall be a minimum of
three hundred fifty dollars ($350.00) and any additional cost incurred therein.
The city of Yorkville reserves the right to increase or decrease the amount of the administrative fee as it deems necessary.
A separate administrative fee shall be paid by each user or co-locator on a tower.
U. Permit Required
Priortothe construction of an antenna,antenna structure ortowerthe providerofthe radio,television,ortelecommunications
services shall obtain a permit from Yorkville for the erection of such antenna,antenna structure or tower.An applicant for a
permit for an antenna, antenna structure, or tower shall pay a fee in accordance with the fee schedule set forth in section
of this title, plus any reasonable legal, engineering, or consulting fees at the conclusion of the review.
V. Waiver Of Provisions
An applicant can request a waiver of any provision of this chapter upon the showing of appropriate justification and benefit
to the public. Such request shall be treated as a request for a variance and the appropriate procedures thereto shall apply.
(Ord. 2000-8, 3-23-2000)
10-18-4: Permitted Uses
A. General
The following uses listed in this section are deemed to be permitted uses and shall not require administrative approval or
a special use permit.
B. Antennas, antenna structures and towers are specifically permitted in any zoning classification, except that part of any
zoning district which is located in a flood plain, so long as said antennas or towers conform to all other requirements of
this title:
1.Antennas and towers located on property owned, leased,or otherwise controlled by Yorkville, particularly and expressly
including Yorkville's water tower sites,and city hall and police station sites, provided that a lease authorizing such antenna,
antenna structure, or tower has been approved by Yorkville.
2. Antennas or towers are permitted to be located on the Burlington Northern Railroad easement running southwest and
northeast through Yorkville, subject to subsections A through V of this chapter.
3. No-impact antennas and towers. (Ord. 2000-8, 3-23-2000)
[ United City of Yorkville Zoning Ordinance ] [ 5 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
10-18-5: Special Uses and Miscellaneous Uses
A. General Provisions
1. Radio and telecommunications antenna, antenna structures and towers used for personal wireless facilities, personal
wireless services,radio transmission,or television transmission shall be subject to the special use provisions contained within
section 10-4--9 of this title and applications for special use permits shall be subject to the procedures and requirements of
this title, except as modified in this chapter.
2.In granting a special use permit,the plan commission may impose conditions to the extent the plan commission concludes
such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties.
3. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be
certified by a licensed professional engineer.
4. An applicant for a special use permit shall submit the information described in this section and a nonrefundable fee as
established by resolution of the city council of Yorkville to reimburse Yorkville for the cost of reviewing the application.
5.Antennas,antenna structures and towers shall be allowed as special uses only consistent with all of the requirements of
this chapter in the following zoning districts: R-1 (one-family residence_golf course, public utility facilities, public service
use facilities with radio or TV tower sites only), R-2 (one-family residence _ golf course, public utility facilities, public
service use facilities with radio or TV tower sites only), B-1(local business district), B-2(retail business district), B-3(general
business district), B-4 (service business district), and A-1 (agricultural district).
6. Atennas, antenna structures and towers shall be allowed as a special use in the E-1(estate district) if it is consistent with
all of the requirements of this chapter and the following criteria:
A. The parcel that any antennas, antenna structures and towers are located on must be at least 2 acres
B. The parcel must not have a single family home on the property
C. The total height of the structure must be less than the distance from the base of the structure to the closest
structure on all adjecent parcels
7. Antennas, antenna structures and towers shall be allowed as miscellaneous uses only consistent with all of the
requirements of this chapter in the following zoning districts: M-1 (limited manufacturing district), and M-2 (general
manufacturing district).
B. Information Required
In addition to any information required for applications for special use permits referenced above,each petitioner requesting
a special use permit under this chapter for an antenna, antenna structures, and tower shall submit a scaled site plan
and a scaled elevation view and other supporting drawings, calculations, and other documentation signed and sealed by
appropriate licensed professionals, showing the location,type and dimensions of all improvements, including information
concerning topography, radio frequency coverage,tower height requirements,setbacks,drives,proposed means of access,
parking, fencing, landscaping, adjacent uses, adjacent roadway, and other information deemed necessary by Yorkville to
be necessary to assess compliance for this chapter. In addition, the following information shall be supplied:
1. Legal description of the parent track and leased parcel (if applicable);
2. The setback distance between the proposed structure and the nearest residential unit, platted residentially zoned
properties and unplatted residentially zoned property;
3.The separation distance from other structures in the inventory of existing sites submitted pursuant to subsection10-
18-3C of this chapter shall be shown on an updated site plan or map and the applicant shall also identify the type of
construction of the existing structure(s) and the owner/operator of the existing structure(s), if known;
4. A landscape plan showing specific landscape materials;
5.The method of fencing and finish color and, if applicable, the method of camouflage and illumination;
6.A description of compliance with subsections 10-18-3C, E, F, G, H, I, and M of this chapter and all applicable federal,
state or local laws;
7. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of
additional antennas for future users;
[ United City of Yorkville Zoning Ordinance ] [ 6 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
8. Identification of the entities providing the backhaul network for the structure(s) described in the application and
other cellular sites owned or operated by the applicant in Yorkville;
9.A description of the suitability of the use of existing towers, other structures or alternative technology not requiring
the use of towers or structures to provide the services to be provided through the use of the proposed new tower;
and
10. A description of the feasible location(s) of future towers or antennas within Yorkville based upon existing physical,
engineering,technological or geographical limitations in the event the proposed tower is erected.
C. Factors Considered In Granting Special Use Permits
The city of Yorkville shall consider the following factors in determining whether to issue a special use permit above and
beyond those factors referenced in section 10-4-9 of is title. The city of Yorkville may waive or reduce the burden on the
petitioner of one or more of these criteria if Yorkville concludes that the goals of this chapter are better served thereby.
1. Height of the proposed antenna, antenna structure or tower;
2. Proximity of the antenna, antenna structure or tower to residential structures and residential district boundaries;
3. Nature of uses on adjacent and nearby properties;
4. Surrounding topography;
5. Surrounding tree coverage and foliage;
6. Design of the antenna, antenna structure or tower, with particular reference to design characteristics that have the
effect of reducing or eliminating visual obtrusiveness;
7. Proposed ingress and egress; and
8. Availability of suitable existing antennas, antenna structures, towers, alternative power structures and other
structures, or alternative technologies not requiring the use of towers or structures as discussed elsewhere in this
chapter.
D. Height
No antenna, antenna structure, or tower shall exceed a height of one hundred (100) linear feet in aerial height. Where an
arm has been installed to facilitate collocation of an additional antenna on the existing antenna structure or tower,the arm
shall not exceed a length of twelve (12) linear feet.
E.Setbacks And Separation
1. Setbacks: Antennas, antenna structures or towers must be set back a distance equal to the height of the antenna,
antenna structure, or tower from any off site, residential structure.Antenna structures,guy lines, and equipment shelters
must satisfy the minimum setback requirements for E-1, R-1, R-2, B-1, B-2, B-3, B-4, M-1, M-2, and A-1 zoning districts.
2. Separation:The following separation requirements shall applyto all towers and antennas for which a special use permit
is required; provided, however,that the plan commission may reduce the standard separation requirements if the goals of
this chapter would be better served thereby, or if enforcement of said setback would effectively prohibit said tower:
a. Separation from off site uses/designated area:
(1) Tower separation shall be measured from the base of the tower to the lot line of the off site
uses and/or designated areas as specified in table 1 of this section, except as otherwise provided in
Table 10.18.01 of this section.
(2) Separation requirements for towers shall comply with the minimum standards established inTable 10.18.01 of
this section.
b. Separation distances between towers:
1. Separation distances between towers shall be applicable for and measured between the proposed tower and
preexisting towers.The separation distances shall be measured by drawing or following a straight line between the
base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation
distances (listed in linear feet) shall be as shown in Table 10.18.02 of this section.
[ United City of Yorkville Zoning Ordinance ] [ 7 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
Table 10.18.01
Separation Requirements
Off Site Use/Designated Area Separation Distance
Single-family or duplex residential units principal building 500 feet
Vacant single-family or duplex residentially zoned land which is either platted or 500 feet
has preliminary subdivision plan approval which is not expired
Vacant unplatted residentially zoned lands, including unplatted residential use
property without a valid preliminary subdivision plan or valid development plan 500 feet
approval and any multi-family residentially zoned land greater than duplex
Existing multi-family residential units greater than duplex 100 feet or 100 percent of the tower
hieght, whichever is greater
Non-residentially zoned lands or non-residential None
The Fox River or any watercourse 500 feet, as measured from the
shore
Major highways 500 feet from the right of way
Table 1 1
Separation Existing Tower
Separation Distance
Existing Tower Type Lattice Guyed Monopole (taller Monopole (shorter
y than 75 feet) than 75 feet)
Lattice 1,000 1,500 500 250
Guyed 1,000 1,750 1,500 1,250
Monopole (taller than
500 1,500 250 250
75 feet)
Monopole (shorter 250 1,250 250 250
than 75 feet)
F.Siting On Wetland Prohibited
No antenna, antenna structure, or tower shall be located in an area which has been designated as a wetland either by
the city of Yorkville, Kendall County, the state of Illinois department of natural resources, the United States department
of the interior or the United States army corps of engineers, and any and all governmental bodies and agencies having
jurisdiction.
G. FCC Signage
To the extent that signage is required by the FCC on an antenna structure, or tower that signage shall constitute no more
than five percent (5%) of the square footage of the antenna, antenna structure, or tower or shall be no larger than is
required by the FCC, whichever shall constitute the smallest signage area.
H. Preservation Of Landscape
Existing mature tree growth and natural land forms on the proposed antenna, antenna structure, or tower site shall be
preserved to the maximum extent possible.
I. Utilities And Access Required
Radio and telecommunications antennas, antenna structures, and towers, including, but not limited to, those used for
personal wireless services, personal wireless facilities and unlicensed wireless services, shall be required to include
[ United City of Yorkville Zoning Ordinance ] [8 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
adequate utilities, access, and/or other facilities necessary for the servicing of the antenna, antenna structure or tower.All
such utilities shall be buried.
J. Signal Interference
No signal transmission from any antenna, antenna structure, or tower shall interfere with police, fire, public works or any
other governmental radio band signals. In the case of the possibility of such interference based upon the frequencies
selected for the proposed antenna, antenna structure, or tower,the petition for special use shall be denied.
K. Equipment Shelter And Equipment Cabinets
1. Equipment Shelter: A provider of a radio, television, or telecommunications antenna, antenna structure, or tower
may provide an equipment shelter on the site of the antenna, antenna structure, or tower. The square footage of the
equipment shelter may not exceed more than twenty percent(20%)of the total square footage of the antenna,antenna
structure or tower ground site or four hundred fifty (450) square feet, whichever is greater. At any antenna, antenna
structure, or tower site in which more than one antenna has been collocated, no more than three (3) equipment
shelters shall be allowed. Multiple equipment shelters shall be contained under one roof if at all practicably possible.
No equipment shelter shall be approved as part of the site plan unless appropriate electrical power and road ingress
and egress facilities are planned for inclusion at the equipment shelter site.
2. Equipment Cabinets:
a. In residential districts, the equipment cabinet or structure may be located in a front or side yard provided the
cabinet or structure is no greater than four feet (4') in height or twenty four (24) square feet of gross floor area
and the cabinet/structure is located in a minimum of six feet (6') from all lot lines. The cabinet/structure shall be
screened by hedging or shrubbery with an ultimate height of at least forty two (42)to forty eight inches (48") and
a planted height of at least thirty six inches (36").
b. In a rear yard, provided the cabinet or structure is no greater than six feet(6') in height or sixty four(64) square
feet in gross floor area.The structure or cabinet shall be screened by hedging or shrubbery with an ultimate height
of eight feet(8') and a planted height of at least thirty six inches(36"). In all other instances,structures or cabinets
shall be screened from view of all residential properties which abut or are directly across the street from the
structure or cabinet by asolid fence six feet (6') in height or a hedge with an ultimate height of eight feet (8') and
a planted height of thirty six inches (36").
c. In commercial or industrial districts the equipment cabinet or structure shall be no greater than six feet (6') in
height or sixty four (64) square feet in gross floor area. The structure or cabinet shall be screened by a hedge or
shrubbery with an ultimate height of eight feet (8') and a planted height of at least thirty six inches (36"). In all
other instances, structures or cabinets shall be screened from view of all residential properties which abut or are
directly across the street from the structure or cabinet by a solid fence six feet (6') in height or a hedge with an
ultimate height of eight feet (8') and a planted height of at least thirty six inches (36").
L. Code Requirements
Any antenna, antenna structure, or tower must meet code requirements established by the national electrical code, NFPA
70 and BOCA building code; radio, television towers codes currently in effect as required by Yorkville and all applicable
marking and lighting standards as established by the federal aviation administration.
M. Engineering Justification
No newtower shall be permitted unless the applicant provides justification and demonstrates to the reasonable satisfaction
of the zoning board that no existing tower, structure, or alternative technology that does not require the use of towers or
structures can accommodate the applicant's proposed antenna. An applicant shall submit information requested by the
zoning board related to the availability of suitable existing towers, other structures, or alternative technology. Evidence
submitted to demonstrate that no existing tower, structure, or alternative technology can accommodate the applicant's
proposed antenna may consist of the following:
1. No existing antennas, antenna structures or towers are located within the geographic area required to meet
petitioner's engineering requirements;
2. Existing antennas, antenna structure, towers or other structures are not of sufficient height to meet petitioner's
engineering requirements.
[ United City of Yorkville Zoning Ordinance ) [ 9 )
Chapter 18: Telecommunication Tower and Antenna Regulations
3. Existing antennas, antenna structures,towers or other structures do not have sufficient height to meet petitioner's
engineering requirements;
4.The petitioner's proposed antenna, antenna structure or tower would cause electromagnetic interference with the
existing antenna, antenna structure or tower or the antenna on the existing structure would cause interference with
the petitioner's proposed antenna.
5. The fees, costs, or contractual provisions required by the owner in order to share an existing antenna, antenna
structure, or tower or to adapt to an existing antenna, antenna structure,or tower are unreasonable. Costs exceeding
new antenna, antenna structure, or tower development are considered unreasonable.
6. The petitioner demonstrates that there are other limiting factors that render existing antenna, antenna structures,
or towers or other structures unsuitable.
7. The applicant demonstrates that an alternative technology that does not require the use of towers or structures,
such as a cable micro cell network using multiple low powered transmitters and receivers attached to a wire line
system, is unsuitable. Cost of alternative technology that exceeds new tower or antenna development shall not be
presumed to render the technology unsuitable.
N. Removal Of Abandoned Antennas,Antenna Structures, Or Towers
Any antenna, antenna structure, or tower that is not operated for a continuous period of twelve (12) months or for which
the annual administrative fee is not paid within a twelve(12) month period shall be considered abandoned,and the owner
of such antenna, antenna structure, or tower shall remove same from within ninety (90) days of receipt of written notice
from Yorkville notifying the owner of such abandonment. If such antenna, antenna structure, or tower is not removed
within said ninety (90) days Yorkville shall remove such antenna, antenna structure, or tower at the owner's expense and
file a lien against the real estate for the cost of removal or such other action as provided by law. If there are two(2)or more
users of a single antenna, antenna structure, or tower, then this provision shall not become effective until all users cease
using the antenna, antenna structure, or tower.
O. Collocation
A request for approval of a special use permit for the installation of an antenna, alternative antenna, antenna structure or
tower,the zoning board may by express condition require that the applicant shall allow,on a commercially reasonable basis,
other providers of personal wireless telecommunications services to collocate additional antennas or antenna structures
on a freestanding pole which is part of applicant's proposed personal wireless facility, where collocation is technologically
feasible.
10-18-6: Nonconforming Uses
A. Prohibited Expansion Of Nonconforming Use
Towers that are constructed and antennas that are installed in accordance with the provisions of this chapter shall not be
deemed to constitute the expansion of a nonconforming use or structure.
B. Preexisting Towers
Preexisting towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including
replacement with a new tower of light construction and height) shall be permitted on such preexisting towers. New
construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter.
C. Rebuilding Damaged Or Destroyed Nonconforming Antennas,Antenna Structures Or Towers
Notwithstanding any provision in this chapter to the contrary, bona fide nonconforming antennas, antenna structures or
towers or antennas that are damaged or destroyed may be rebuilt without having first obtained administrative approval
or a special use permit and without having to meet the separation requirements specified elsewhere in this chapter. The
type, height, and location of the tower on site shall be of the same type and intensity as the original facility approved.
Building permits to rebuild a facility shall comply with the then applicable building codes and shall be obtained within one
hundred eighty (180) days from the date the facility is damaged or destroyed. If no permit is obtained within the time
specified or if said permit expires, the tower or antenna shall be deemed abandoned as specified in subsection 10-18-5N
of this chapter.
[ United City of Yorkville Zoning Ordinance ] [ 10 ]
Chapter 18: Telecommunication Tower and Antenna Regulations
10-18-7: Annual Reporting of Information
Each ownerofan antenna,antenna structure,ortower regulated underthis chapter,and includingthose previously existing
structures which would have been regulated under this chapter, shall, on an annual basis, furnish Yorkville, with such
information as is required by Yorkville to aid with the administration of this chapter,such as changes in availability of space
on any tower for collocation of additional antennas, plans to abandon a position on a tower, thereby leaving space for
the possible collocation of another antenna, plans and/or willingness to modify said tower and antenna structure so as to
provide for the possibility of collocation, or intentions to abandon a tower structure, or other nonproprietary information
as may be required by Yorkville. Upon written notice from the city of Yorkville to the owner thereof, the effective date
of this chapter, which tower and/or antenna structure would otherwise be regulated by this chapter, shall register with
Yorkville, and shall provide such nonproprietary information as is deemed useful by Yorkville for administration of this
chapter.This section is specifically deemed to have retroactive effect.
[ United City of Yorkville Zoning Ordinance ] [ 11 ]
William and Mary Law Review
Volume 40 I Issue 3 Article 14
Wireless Facilities Are a Towering Problem: How
Can Local Zoning Boards Make the Call Without
Violating Section 704 of the Telecommunications
Act of 1996?
Kevin M.O'Neill
Repository Citation
Kevin M. O'Neill, Wireless Facilities Are a Towering Problem:How Can Local Zoning Boards Make the
Call Without Violating Section 704 of the Telecommunications Act of 19967,40 Wm. &Mary L.Rev.97S
(1999),http://scholarship.law.wm.edu/wmlr/vol40/iss3/14
Copyright c 1999 by the authors.This article is brought to you by the William&Mary Law School Scholarship Repository.
bttp://scholarship.law.wm.edu/wmlr
NOTES
WIRELESS FACILITIES ARE A TOWERING PROBLEM:
HOW CAN LOCAL ZONING BOARDS MAKE THE
CALL WITHOUT VIOLATING SECTION 704 OF THE
TELECOMMUNICATIONS ACT OF 1996?
While driving to work, a middle-aged executive conducts an
important business discussion on his cellular phone. Suddenly,
his conversation fades out as he approaches a "black hole"in the
phone's cellular network.' Frustrated, the commuter wonders
when the cellular phone company will fix the problem of poor
reception in his area. Later that night, the executive learns
about a neighborhood meeting to discuss opposition to a local
cellular phone company's plan to build a 200-foot monopole in
the neighborhood.'Worried that the unsightly view of the tower
from his front lawn will have a dramatic downward effect on his
property value and that radiation emitted by the facility could
be hazardous'to his family's health, the citizen vows to prevent
the antenna from being placed in his neighborhood.
Wireless facilities,such as a cellular antenna tower or Personal
Communication Systems (PCS) monopole, face the classic LULU
1. A "black hole" is the term used to describe an area where the wireless com-
munications towers are spread too far apart to convey a user's signal reliably. See
Orly Konig-Lopez, Mobile Communication by Satellite . . . Total Coverage for Any
Situation, SATELLITE Comm., Oct. 1, 1995, at 38.
2. The wireless industry uses the term "Above Ground Level" (AGL) to define the
height of a wireless facility. AGL refers to the distance from the ground to the "ra-
diation center" or mid-point of a panel antenna, and differs from the true height,
which is measured from the top of the antenna to the ground. See KREINES &
KREINES,INC.&CAPE COD C0101ISSION,SMNG CRITERIA FOR PERSONAL WIRELESS SERVICE
FAcmrms 4 (1997).
975
976 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
consumer conundrum? consumers want their cellular, PCS, or
Specialized Mobile Radio (SMR) service on demand, and at an
affordable price,' but few consumers want to allow the service's
physical infrastructure to infiltrate their neighborhood.' Locali-
ties and wireless providers have battled over the placement,
height, appearance, and potential negative effects of wireless
facilities in the community ever since wireless services first ar-
rived on the market.' The Federal Communications Commission
(FCC), as the authority responsible for granting wireless licens-
es, approving the initially proposed facilities, and monitoring the
growth of the industry, also has been an integral player in the
debate over siting these facilities.' Congress intended section
704 of the Telecommunications Act of 1996 ("Act") to speed the
approval and construction of wireless facilities by limiting the
means by which local zoning boards' could oppose these facili-
3. The term LULU refers to Locally Undesirable Land Uses. See A. Dan Tarlock,
Benjamin Davy's Essential Injustice: A Comparative and Philosophical Analysis of
the LULU Siting Mess, 22 HARv. ENVTL. L. REV. 607, 607 (1998) (book review).
LULUS offer some social benefit to the surrounding community but few citizens want
a LULU located near their residence or place of business. See id Although every
locality probably has its unique view of what constitutes a LULU, common examples
include garbage dumps, power plants, fast food restaurants, and service stations.
4. Cellular phones are mobile services operating in the 824-849 and 869-894
megahertz (MHz)spectrum.See WIRELESS TELECOMMUNICATIONS BUREAU,FCC, FACT
SHEET: NEW NATIONAL WIRELESS TOWER SITING POLICIES 6 (1996) (visited Jan. 17,
1999) <httpJ/www.fcc.gov/wtb/Siting/factl.pdf> [hereinafter FCC FACT SHEET]. PCS is
an advanced form of radiotelephone services that operates in the 1850-1900 MHz
range and can send or receive voice, data, text and video messages. See KREINES &
KREiNES, INC. & CAPE COD COMMISSION, supra note 2, at 8. SMR service is em-
ployed by dispatch and data users that operates in the 806-821/851 MHz (800 MHz)
and 896-901/935-940 MHz (900 MHz) frequency ranges. See id at 9; FCC FACT
SHEET, supra, at 6. These three services essentially are "functionally equivalent ser-
vices" and therefore must receive equal treatment from the government. See Tele-
communications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)(i)(I) (Supp. II 1996).
5. See Susan Lorde Martin, Communities and Telecommunications Corporations:
Rethinking the Rules for Zoning Variances, 33 AM. BUS. L.J. 235, 245 (1995) (argu-
ing that despite the popularity of cellular service, consumers do not want the towers
and antennas located near their homes).
6. The term "wireless facility," as used in this Note, applies to the antennas,
mounts, and monopoles used by wireless providers to create networks for cellular
phones, PCS, and SMR.
7. See 47 U.S.C. § 332(a); see also id § 151 (describing the history and functions
of the FCC).
8. This Note uses the term "zoning board" according to its generic meaning and
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 977
ties.' Unfortunately, section 704 apparently slowed that process
as localities imposed zoning moratoriums and other administra-
tive delays to prevent placement. Furthermore, localities failed
to implement the Act's procedural requirements that zoning de-
cisions meet certain evidentiary standards and be made within a
reasonable period of time. The ignorance and delaying tactics of
zoning boards have prompted communications companies ("wire-
less .providers") to exercise their right to litigate these disputes
in federal district court.io
Wireless providers have been successful in winning judicial
approval of their projects for three main reasons."First, despite
language in the Act requiring a zoning board to act within a
"reasonable period of time,»12 some localities deliberately and
illegally use moratoriums and other procedural delays to avoid
malting decisions on tower applications.13 Second, some zoning
boards fail to justify denial of applications for wireless facilities
with"substantial evidence"as required by the Act.'Third,zoning
uses this designation to cover any number of names a locality gives to the agency or
commission that decides zoning issues.
9. See 47 U.S.C. § 332(c)(7).
10. Section 704 of the Act allows for the following judicial relief:
Any person adversely affected by any final action or failure to act by,a
State or local government or any instrumentality thereof that is inconsis-
tent with this subparagraph may, within 30 days after such action or
failure to act, commence an action in any court of competent jurisdiction.
The court shall hear and decide such action on an expedited basis.
Id. § 332(c)(7)(B)(v).
11. The first case decided after the Act's passage remains the local zoning authori-
ties' biggest judicial victory to date. In Sprint Spectrum, L.P. v. City of Medina, 924
F. Supp. 1036 (W.D. Wash. 1996), a federal district court upheld a six-month mora-
torium on applications and approvals of special use permits for wireless facilities.
See id. at 1040. Since Medina, wireless providers have enjoyed almost universal suc-
cess in court when using the Act to challenge.localities' zoning decisions. See, e.g.,
Sprint Spectrum,L.P.v.Jefferson County,968 F.Supp 1457(N.D.Ala. 1997); Western
PCS H Corp. v. Extraterritorial Zoning Auth., 957 F. Supp. 1230 (D.N.M. 1997).
12. The Act directs localities to "act on any request for authorization to place, con-
struct, or modify personal wireless service facilities within a reasonable period of
time after the request is duly filed with such government or instrumentality, taking
into account the nature and scope of such request" 47 U.S.C. § 332(c)(7)(B)(ii).
13. See David W. Hughes, When 1VIMBYs Attack. The Heights to Which Commu-
nities Will Climb to Prevent the Siting of Wireless Favors, 23 J. CORP. L. 469, 471
(1998).
14. See, e.g., Cellco Partnership v. Town Plan & Zoning Comm'n, 3 F. Supp.
973 WILLIAM AND MARY LAW REVIEW (Vol. 40:975
boards improperly use health and aesthetic concerns as a ratio-
nale for denying wireless providers' applications."
This Note sheds light on the effects of section 704, specifically
addressing how zoning boards and courts have interpreted some
of section 704's terms. The first section provides background in-
formation on three related issues: (1) the explosive growth of
wireless communications; (2) the basic components of the local
zoning process; and (3) the background and substance of the pro-
visions in the Act that directly affect wireless facility locations.
The second section explores the courts' interpretation of a "rea-
sonable period of time" as it applies to a locality's time frame for
making a zoning decision on an application for a wireless facility.
The second section of this Note also discusses the legality of
moratoriums and other procedural delays communities use to
slow the approval process. The third section examines the cir-
cumstances under which a denial violates the Act by discrimi-
nating between providers offering established services and those
offering new, enhanced services. The fourth section analyzes
existing judicial decisions, pointing out patterns and suggesting
guidelines for defining the Act's requirement that a locality use
"substantial evidence" to justify its denial of a wireless facility
application."The fifth section addresses how and when the zoning
2d 178, 184 (D. Conn. 1998). The Act requires that "[alny decision by a State or
local government or,instrumentality thereof to deny a request to place, construct, or
modify personal wireless service facilities shall be in writing and supported by sub-
stantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii).
15. See, e.g., AT&T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 431 n.6 (4th
Cir. 1998). The Act does not allow localities to "regulate the placement, construction,
and modification of personal wireless service facilities on the basis of the environ-
mental effects of radio frequency emissions to the extent that such facilities comply
with the Commission's regulations concerning such emissions." 47 U.S.C. § 332(c)(7)
(B)(iv). Finally, the Act allows the FCC to preempt a state or local statute in cases
in which local laws conflict with the Act. See id § 253(d).
16. Wireless providers generally have used a "kitchen sink" strategy in pursuing
these claims in court, alleging that the local zoning board has violated several parts
of the Act by denying their zoning application. See, e.g., Virginia Metronet, Inc. v.
Board of Supervisors, 984 F. Supp. 966, 970 (E.D. Va. 1998) (claiming violation of
three parts of the Act). As a result, some courts ultimately have denied the wireless
providers' petitions in part and approved them in part. See id at 977. The end re-
sult is that one case might be useful for several different reasons in understanding
how zoning boards must proceed under the Act in order to avoid legal challenges by
wireless providers.
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 979
board legitimately can use health, safety, and aesthetic concerns
in its decisionmaking process. The sixth section suggests a set of
criteria that localities and wireless providers can use in the ap-
plication and approval process to remain in compliance with the
Act's zoning requirements.i'
Some commentators believe that lawyers and judges drive the
wireless communication industry's development just as much
as corporate executives, local zoning boards, and engineers.18
This Note argues that the judicial system should place these
development decisions back in the hands of the localities and the
providers.
AN OVERVIEW OF THE WIRELESS COMMUNICATIONS INDUSTRY,
THE TELECOMMUNICATIONS ACT OF 1996, AND APPLICABLE
ZONING LAW
The wireless communications industry in America has consis-
tently grown at a rate that has outpaced the wildest predictions
of economists and industry leaders. The FCC granted its first
licenses for cellular service in 1983 with little idea of what po-
tential existed for the industry.i9 One research group once pre-
dicted a mere 900,000 wireless users by the year 2000.20 In fact,
as of 1996 there were an estimated 40 million wireless users
and an estimated 22,000 wireless facilities in the United
States. analysts predict that, by the year 2001, twenty
17. Zoning is a local process that can vary widely from jurisdiction to jurisdiction.
Therefore, this Note takes a broad approach to many issues, rather than focusing on
the laws of a single state.
18. See John W. Berresford, The Impact of Law and Regulation on Technology:
The Case History of Cellular Radio, 44 BUS. LAw. 721, 721-22 (1989).
19. See Martin, supra note 5, at 236.
20. See Competition in the Cellular Telephone Service Industry: Hearing Before
the Subcomm. on Oversight and Investigations of the House Comm. on Commerce,
104th Cong. 60 (1995) [hereinafter Hearing] (statement of Thomas E. Wheeler, Presi-
dent and CEO, Cellular Telecommunications Industry Association (CTIA)).
21. See WIRELESS TELECOMMUNICATIONS BUREAU, FCC, FACT SHEET #2 NATIONAL
WIRELESS FAciL= SITING POLICIES 6 (1996) (visited Jan. 17, 1999) <http://www.
fee.gov/wtb/Biting(fact2.pdf> [hereinafter FCC FACT SHEET #21. This Note uses statis-
tics that were available to Congress when the 1996 Act was passed, rather than
current data regarding the status of the cellular industry, because it is important to
know the information and projections with which Congress had to work when it
980 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
percent of all phone calls in America will be made or received by
wireless users"
A sharp downturn in cost has driven the interest in wireless
communications.23 From 1985 until 1994, the price of wireless
communications fell an astounding thirty-six percent while the
wireless market share skyrocketed.24 Wireless communications
paired advanced technology with competition to create a high-
quality, low-price product that continues to spark high levels of
consumer demand. The economic structure and success of wire-
less communications is a model for all emerging technologies, as
its success proves market solutions are superior to government
regulation for emerging technologies as
The explosive growth of wireless communications means the
system's infrastructure must keep pace with consumer de-
mand.26 The success of the wireless industry depends on the con-
struction of new facilities and enhanced intra-market competi-
tion.27 Multiple competitors in a market keep prices low without
the heavy monitoring and regulatory costs associated with state
or federal supervision.28
passed the Act. As for current statistics, the explosion of cellular users has contin-
ued. In 1998, the number of cellular subscribers increased nearly 25%, from 49 mil-
lion to 60 million. See Tammy Wark, Milestones That Marked Our Year: what will
1998 Be Remembered For?, USA TODAY, Dec. 30, 1998, at 3B, auailable in 1998 WL
575984.
22. See Jaymes D. Littlejohn, The Impact of Land Use Regulation on Cellular
Communications: Is Federal Preemption Warranted?, 45 FED. COMM. L.J. 247, 249
(1993) (quoting Siting Cellular Transmitters, ZONING NEws, Jan. 1991, at 1).
23. See id-
24. See Hearing, supra note 20, at 50 (statement of Thomas E. Wheeler).
25. See id
26. The economic structure of wireless services differs sharply from traditional
wired phone service. See id at 61 (statement of Thomas E. Wheeler). Wireless com-
panies can operate only within their small allotted piece of spectrum. See id As
their business grows, therefore, they continually must devise ways to subdivide and
reuse that area of the spectrum. See id Although a traditional phone company often
can accommodate new customers with little more than running a few additional
lines, wireless companies require engineering solutions and massive amounts of new
facilities in order to expand service. See id
27. See id.
28. See id at 44(statement of Jerry A.Hausman,McDonald Professor of Economics,
Massachusetts Institute of Technology).
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 981
The costs of attracting and retaining new customers to wire-
less technology remains high and severely impacts short-range
profits for wireless providers. In 1995, the average cellular
company estimated that it spent seven hundred dollars in facili-
ties investment and six hundred twenty dollars in marketing to
attract each new customer, who will, on average, generate a
mere fifty-nine dollars a month in revenue 30 When wireless pro-
viders seek judicial relief to remedy illegal denials of their zon-
ing applications,transactions costs continue to rise. The consum-
er eventually bears the burden of all these transactions costs by
paying taxes to support the zoning board31 and the judiciary, and
then paying again to enjoy the benefits of wireless service. A ini-
mizing the transaction costs involved in approving these facili-
ties therefore should minimize the additional costs imposed on
consumers.
Objections to Wireless Facilities
Citizens who oppose the location of wireless facilities near
their homes generally have several common objections. First,
they are concerned about the environmental and health impacts
such facilities might have on local citizens 32 Second, citizens
worry that these facilities will ruin the aesthetic value of their
neighborhoods and reduce the property values of local homes
and businesses 33 Third, many citizens fail to see the difference
29. See id. at 62 (statement of Thomas E. wheeler).
30. See id.
31. See, e.g., Craig A. Dudczak, Tell Your Neighbors.End Mischief, POST-STANDARD
(Syracuse), July 20, 1995, at 11, available in 1995 WL 3738628 (noting a citizen's
anger at having to pay taxes to support two zoning boards).
32. See Dean J. Donatelli, Note, Locating Cellular Telephone Facilities: How
Should Communities Answer When Cellular Telephone Companies Call?, 27 RUTGERS
L.J. 447, 448 (1996). One such concern involves the potential health effects of expo-
sure to electromagnetic fields (EMFs). See Martin, supra note 5, at 241. Studies
have indicated a correlation between exposure to EMFs and cancer. See id. at 241-
42. wireless facilities produce EMFs and create potential exposure risks. See id. at
244 (citing Raymond Hernandez,Phone Antennas Resisted Out of Fear and Esthetics,
N.Y. TmIES, July 16, 1994, at Al); see also Donatelli, supra, at 469-71, 478 (discuss-
mg.potential remedies citizens may seek for injuries caused by the granting of zon-
ing variances).
33. See Donatelli, supra note 32, at 448. Some citizens even predict that the pub-
lic fear of EMFs will have the effect of decreasing property values near sources of
982 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
between basic cellular service and advanced digital services such
as PCS.34 The lack of familiarity with cellular service technology
leads 'citizens to oppose the buildout of networks for advanced
services when cellular service already eidsts in their area ss
These factors combine to mobilize citizens to speak out against
wireless facilities proposed in their communities.31
Cellular Allocation
In 1995, the wireless industry estimated that it would need
115,000 wireless facilities by the year 2000 to accommodate sub-
scriber demands for service 37 More customers require more facil-
ities to handle the greater volume of calls, therefore wireless
providers must become less selective about the placement of
their facilities, thus accelerating the pace of confrontation with
localities." Once the FCC grants the original licenses for wire-
less providers in a market, local zoning boards and wireless pro-
viders make most of the relevant placement decisions together.as
EMFs. See id. at 486.
34. See Jeff Bounds, PCS Phone Providers Ready to Battle for Cellular Clients,
DALLAS Bus. J., Mar. 21, 1997, available in 1997 WL 7888163.
35. A PCS network requires as many as four times more tower sites than a cel-
lular network to offer comparable quality and coverage. See Hughes, supra note 13,
at 481 & n.101.
36. See id. at 448.
37. See Yvonne Chiu & Mike Mills, High Tech Means Trouble. The Cellular Indus-
try Wants U.S. Protection as Communities Say No to Towering Eyesore, WASH. POST,
July 31, 1995, at F5; see also 141 CONG. REC. H8274 (daily ed. Aug. 2, 1995) (state-
ment of Rep. Goss) (estimating the existence of at least 100,000 new wireless facili-
ties by the turn of the century).
38. As Thomas Wheeler, President of the CTIA, has noted, wireless communica-
tions facilities "are being driven to smaller and smaller cells . . . . So we have much
less choice as to where to site them."See Chiu & Mills, supra note 37, at F5.
39. For example, the FCC designated 306 Metropolitan Statistical Areas and 428
Rural Services Areas where it would issue cellular licenses. See FCC FACT SHEET,
supra note 4, at 8-9. The government allocated two cellular system licenses for each
market. See id. In each of these markets, the FCC requires only that service provid-
ers with tower locations on the perimeter of the outer service area register with the
FCC. See id. The FCC must approve the actual wireless facility in advance if the fa-
cility will have a major environmental impact. See id. Additionally, in 1996, the FCC
enacted stricter rules for approving antennas to help reduce the number of applica-
tions it processed and approved. See id.
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 983
Initially, the FCC licensed wireless providers on a first-come,
first-served basis;40 therefore, it is possible that the first en-
trants into a market usurped a majority of the ideal sites for
wireless facilities. Collocation, therefore, makes a great deal of
sense. Collocation involves using the same physical location for
multiple wireless facilities by placing the antennas of several
different wireless providers on one building, using one location
for an antenna farm with antennas owned by several different
wireless providers, or placing small transmitters on the same
monopole or antenna tower.41 As a policy decision, collocation
helps new entrants compete on an equal basis. Every local zon-
ing authority confronts the collocation issue in approving wire-
less facility applications, and some localities require collocation
wherever possible'
Wireless providers and zoning boards face an inherent dilem-
ma in building out their facilities. As they start their system,
they need only a few large towers with sufficient height and
power to cover the entire service area.'As the system grows, it
requires more facilities that are shorter and less powerful than
the original facilities"For best results,wireless facilities should
be nearest to the consumers who use them; facilities commonly
are found adjacent to major freeways and highways because a
number of consumers use the service primarily while in
transit 45 No study has ever determined the demographics of citi-
zens who protest the proposed construction of wireless facilities
in their neighborhoods, but it seems likely that upper- and mid-
dle-class homeowners would be the group most concerned about
the effects these facilities have on their property values 4s
40. See CONGRESSIONAL BUDGET OFFICE,WHERE DO WE GO FROM HERE?THE FCC AUC-
TIONS AND THE FUTURE OF RADIO SPECTRUM MANAGEMENT 4(1997).Currently,the FCC
auctions off licenses to use the radio spectrum. See id. at 5.
41. See KREINEs & KREINES, INC. & CAPE COD COM[IISSION, supra note 2, at 5.
42. See id. at 18.
43. See id. at 14.
44. See id.
45. See id. at 23.
46. Residents of suburban communities, particularly affluent communities, often
put their own personal interests above those of the community at large. See Martin,
supra note 5, at 235.
984 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
The 1996 Act and Its Impact on Wireless Facility Placement
The Telecommunications Act of 1996 was a long-overdue re-
working of American communications policy. Over sixty years
had passed since the enactment of the last major communica-
tions act in 1934,47 which occurred before the advent of widely
distributed commercial television 4s One of the Act's primary
goals was to encourage "competition that will produce innovative
technologies for every American household and provide benefits
to the American consumer in the form of lower prices and en-
hanced services."49 Localities and wireless providers have grap-
pled with the zoning of wireless facilities since the early 1980s,so
and the Act attempted to answer some of the most pressing
problems encountered in zoning confrontations. In attempting to
solve these problems, however, Congress used imprecise lan-
guage and tried to serve conflicting masters, thereby generating
new problems.
Congress hoped to accomplish two conflicting goals through
the wireless facility provisions of the Act. First, it wanted to pre-
vent local authorities from denying applications for wireless fa-
cilities arbitrarily. Second, it tried to guarantee that localities
would retain ultimate control of the location of the facilities 51 In
47. See Communications Act of 1934, 47 U.S.C. § 151 (1994) (creating the FCC
and expressing the first major elements of American communications policy).
48. See Gregory Tan, Wading Through the Rhetoric of the Telecommunications Act
of 1996. Uncertainty of Local Zoning Authority over Wireless Telecommunications
Tower Siting, 22 VT. L. REV. 461, 463 & n.15 (1997).
49. 141 CoNG. REc. H8270 (daily ed. Aug. 2, 1995) (statement of Rep. Linder).
50. Cellular technology first reached the public in 1983. See Berresford, supra note
18, at 721; see also Martin, supra note 5, at 236 (stating that zoning battles be-
tween public utilities and local communities have occurred for years and that new
cellular telephone companies have escalated the battle with local communities even
further).
51. Congressman Bliley chaired the House Commerce Committee that oversaw pas-
sage of the Act. His naive viewpoint epitomizes Congress's mistaken belief that it
could maintain simultaneous control over the federal and local wireless facility place-
ment issue:
Nothing is in this bill that prevents a locality . . . from determining
where a cellular pole should be located, but we do want to make sure
that this technology is available across the country, that we do not allow
a community to say we are not going to have any cellular pole in our
locality. That is wrong. Nor are we going to say they can delay these
19991 wIRELESS FACILITIES ARE A TOWERING PROBLEM 985
attempting to impose these seemingly mutually exclusive propo-
sitions, Congress ignored at least one commentator who advocat-
ed giving the FCC the ability to preempt localities' zoning deci-
sions regarding the placement of wireless facilities."
Congress intended section 704 of the Act to preserve local zon-
ing authority in deciding the placement of wireless facilities,
noting that the federal government cannot "limit or affect the
authority of a State or local government or instrumentality
thereof over decisions regarding the placement, construction,
and modification of personal wireless service facilities."53 Con-
gress used section 704 to impose several specific restrictions on
local zoning boards considering applications for wireless facility
placements.
First, the local zoning board cannot "unreasonably discrimi-
nate among providers of functionally equivalent services."54 Sec-
ond, local zoning boards cannot "prohibit or have the effect of
prohibiting the provision of personal wireless services" that the
FCC has licensed to operate in that area.55 Third, in considering
an application for a wireless facility, a zoning board must ap-
prove or decline the application "within a reasonable period of
time . . . taking into account the nature and scope of such re-
quest."" Fourth, if the zoning board declines the application for
a wireless facility, that decision must be "in writing and sup-
ported by substantial evidence contained in a written record.n57
people forever. But the location will be determined by the local governing
body.
141 CONG. RiEc. H8274 (daily ed. Aug. 2, 1995) (statement of Rep. Bliley).
52. See generally Littlejohn, supra note 22 (advocating that the Constitution's Su-
premacy Clause and the preeminence of the federal interest in cellular communica-
tions justifies federal regulation of zoning for cellular facilities).
53. Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(A) (Supp. H
1996).
54. Id- § 332(c)(7)(B)(i)(I). PCs, SMR, paging services, and cellular phones are all
considered functionally equivalent services. See KREINEs & KREINEs, INC. & CAPE
COD CONMUSSION, supra note 2, at 7.
55. 47 U.S.C. § 332(c)(7)(B)(i)(H).
56. Id § 332(c)(7)(B)(ii).
57. Id § 332(c)(7)(B)(iii). The Act also prohibits localities from denying a wireless
facility application because of"the environmental effects of radio frequency emission,"
so long as the proposed facility meets FCC standards. Id § 332(c)(7)(B)(iv). Although
health concerns often are cited as one of the reasons citizens oppose wireless facili-
986 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
If a locality's actions violate the Act, a wireless provider can
seek accelerated judicial relief by filing suit in the applicable
federal district court within thirty days of the locality's adverse
action 58 By providing the authority for federal district courts to
review these decisions, the Act seeks to minimize the number of
confusing legal standards that state courts could produce from
similar reviews.59
Zoning Background
Localities create zoning boards to manage growth effectively
by predetermining what uses could take place on given parcels
of land.6o Today, zoning is a complex administrative and political
process, as localities use detailed master plans and processes to
segment land uses in their communities into multiple categories.
Each category then encompasses multiple subcategories with
discrete benefits and restrictions."
If a landowner wants to use his land in a way that the zoning
law does not permit, he seeks special permission for the use by
asking for a variance.62 The zoning authority usually bases its
ties, this Note will not discuss the issue at great length. See supra note 15 and ac-
companying text.
58. See 47 U.S.C. § 332(c)(7)(B)(v).
59. As long as federal district courts interpret the zoning ordinances of the locality
in which the dispute takes place, however, the possibility of differing standards for
the placement of wireless facilities virtually is guaranteed. See Littlejohn, supra note
22, at 250-56 (stating that the FCC should be allowed to make uniform zoning deci-
sions throughout the country).
60. See Martin, supra note 5, at 238.
61. Zoning ordinances are constitutional if they have "some tendency reasonably to
serve the public health, safety, morals, or general welfare." 1 ROBERT M. ANDERSON,
AMERICAN LAw OF ZONING § 7.03, at 737 (4th ed. 1996). For example, zoning ordi-
nances have been used to control competition, minimize traffic congestion, limit com-
munity growth, and regulate housing structures. See i& § 7.01, at 730-33.
62. A variance is similar to a special use permit. See 3 id § 20.03, at 414-15.
Both are forms of administrative relief from the strict application of zoning laws.
See id §§ 20.02-20.03, at 410-18. A special use permit is sometimes called a condi-
tional use permit. See PETER W. SALSICH, JR. & Ti mOTHY J. TRYNIEM, LAND USE
REGULATION: A LEGAL ANALYSIS & PRACTICAL APPLICATION OF LAND USE LAw 207
(1998). The appropriate terminology varies from locality to locality and the term
"variance," as used in this Note, covers the variety of terms used by localities to
designate the approval of a permit to develop land for a use that is otherwise disal-
lowed.
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 987
decision for granting a variance on a standard of review or pro-
cedure outlined in the governing ordinance or state statute.sa
Wireless providers now attract the kind of public zoning scrutiny
once reserved for the power company.64 Unlike permitted uses
such as power lines or phone lines, wireless communications are
relatively new; consequently,their facilities often are not specifi-
cally addressed in zoning laws ss Wireless providers who want to
use property to install a wireless facility therefore usually must
apply for a variance.
The local zoning process typically involves at least three levels
of review.66 First, most localities have a planning staff that re-
views zoning applications and provides professional assistance to
the applicants. ' Some of these staffs make formal recommenda-
tions for approval or denial of an application.61 Usually, the sec-
ond level of review involves a planning commission that advises
the ultimate approving body, typically a legislative body such as
a city council or board of supervisors.6' Generally, this advisory
group will hold at least one public hearing on the application
and will consider the professional staffs recommendations before
making a preliminary decision.70 The locality's zoning entity typ-
ically conducts the third and final level of review.71 Again, it is
common for this entity to hold at least one public hearing on an
63. See Donatelli, supra note 32, at 454.
64. See Martin, supra note 5, at 236.
65. See Donatelli, supra note 32, at 449.
66. Regardless of where the service provider submits its zoning application, the
zoning board, comprised of a variety of people with differing agendas, reviews, veri-
fies, and amends the application numerous times before it ultimately approves or
rejects it. The process described is modeled loosely on the procedures used in James
City County, Virginia. See Virginia Metronet, Inc. v. Board of Supervisors, 984 F.
Supp. 966, 969-70 (E.D. Va. 1998).
67. See, e.g., JAMES CITY COUNTY, SPECIAL USE PERMIT PROCEDURE.
68. See, e.g., id (stating that the Planning Division for James City County will
review the application and make a recommendation to the Planning Commission).
69. See SALSICH & TRYNIECKI, supra note 62, at 202.
70. See io: at 203-04; see also JAMES CITY COUNTY, supra note 67 (stating that
the Planning Commission of James City County will hold a public hearing and rec-
ommend that the Commission approve or deny the application).
71. See, e.g., JAMES CITY COUNTY, supra note 67 (explaining that after the Plan-
ning Commission makes a recommendation, the Planning Division will submit the
application to the Board of Supervisors).
988 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
application, and consider the recommendations of the staff and
the advisory group, as well as review any changes to the appli-
cation.72 The final step of the zoning process usually entails a
vote by this committee.73
The Players in the Debate
There are four main parties to the decision-making process in
these zoning fights: consumers, the FCC, the wireless industry,
and local governments.74 Ideally, consumers want immediate
access to all wireless products, but they are reluctant or even
hostile to living near the system's infrastructure.'b The FCC
wants to accommodate a rapid development of networks while
still allowing localities to make individual placement decisions.'s
The wireless providers want rapid system development and tall-
er, more powerful facilities during the initial build-up of their
system to insure maximum coverage." Further, communications
industry leaders believe that local government should be more
cooperative in placing these facilities because of the complex and
sensitive nature of the facilities.7' The wireless providers favor
"uniform, nondiscriminatory, reasonable and timely" zoning pro-
cesses that will help them establish "ubiquitous networks" of
wireless facilities.79
Localities, on the other hand, want to choose the precise
placement of wireless facilities and make these facilities as un-
obtrusive as possible.8o Localities typically do not want to allow
tall towers in areas where surrounding buildings are low in
height.8'Wireless companies,however,prefer to build large towers
72. See, e.g., id (explaining that the Board of Supervisors will hold a public hear-
ing and determine whether to grant or deny the application).
73. See, e.g., id (stating that the Board of Supervisors will hold a hearing and
then decide whether to grant the permit).
74. See KREms & KREINES, INC. & CAPE COD COMMISSION, supra note 2, at 2.
75. See supra note 5 and accompanying text.
76. See FCC FACT-SHEET, supra note 4, at 9, 11.
77. See KREINES & KREms, INC. & CAPE COD ComnsSION, supra note 2, at 14.
78. See Hearing, supra note 20, at 65 (statement of Thomas E. Wheeler).
79. Id
80. See KREINES & KREINES, INC. & CAPE COD COMMISSION, supra note 2, at 2-3,
23.
81. See id at 39-40.
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 989
first so that construction costs are spread over the life of the
system.82 From the very beginning of the zoning process, two
ongoing battles exist regarding the number of facilities to build
and the height of each facility."
Since the Act's passage, state and federal trial courts in Ala-
bama,84 Connecticut,85 Florida,S6 Georgia,87 Illinois,""New Jersey,89
New Me3dco,90 New York,91 Virginia,92 Washington,93 and Wiscon-
sin 94 all have reviewed the wireless facility zoning issue. Nearly
82. See id. at 2.
83. See id. at 14.
84. See Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1467-68
(N.D. Ala. 1997) (finding that a county commission's denial violated the Act's prohi-
bitions on unreasonable discrimination and exceeded the Act's reasonable time re-
quirements).
85. See Sprint Spectrum L.P. v. Town of Farmington, No. 3:97 CV 863, 1997 WL
631104, at *4, *6 (D. Conn. Oct. 6, 1997) (finding that a zoning board's denial vio-
lated the Act's substantial evidence, unreasonable discrimination, and reasonable
time requirements).
86. See AT&T Wireless Serve. of Fla., Inc. v. Orange County, 982 F. Supp. 856,
859-60 (M.D. Fla. 1997) (finding that the local zoning board's denial of a wireless
provider's application violated the Act's writing requirement and failed the substan-
tial evidence test).
87. See BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923, 928 (N.D.
Ga. 1996) (finding that a zoning board's denial of a zoning application failed the
Act's substantial evidence requirement).
88. See Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 743-45
(C.D. M. 1997) (holding that the zoning denial violated the Act's substantial evidence
requirement).
89. See Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjust-
ment, 704 A.2d 1271, 1278-79 (N.J. 1998) (discussing an applicant's compliance with
New Jersey's deferential criteria for the zoning variances of public utilities).
90. See Western PCS Il Corp. v. Extraterritorial Zoning Auth., 957 F. Supp. 1230,
1236-38 (D.N.M. 1997) (overruling a zoning board's decision because it violated the
Act's substantial evidence requirement, and it had the effect of unreasonably discrim-
inating between functionally equivalent services).
91. See Sprint Spectrum, L.P. v. Zoning Bd. of Appeals, 662 N.Y.S.2d 717, 719
(Sup. Ct. 1997) (finding a 10-month time frame to review and deny a zoning applica-
tion exceeded the Act's reasonable time requirement).
92. See Virginia Metronet, Inc. v. Board of Supervisors, 984 F. Supp. 966, 972-73
(E.D. Va. 1998) (reversing a zoning board's decision to deny a wireless providers
special use permit).
93. See Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036, 1040 (W.D.
Wash. 1996) (allowing a locality to enforce a zoning moratorium while the zoning
board prepared and implemented a process for reviewing all wireless zoning applica-
tions).
94. See Westel-Milwaukee Co. v. Walworth County, 556 N.W.2d 107, 109 (Wis. Ct.
990 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
all of the courts hearing these cases have overruled the decisions
of the local zoning authorities and approved the development of
the wireless facilities in question.95 While the wireless communi-
cations industry may be winning the court battles, zoning boards
actually are winning the war by delaying each individual facility
for as long as possible.
INTERPRETING THE ACT'S REASONABLE TIME REQummmNT
The Act intended to speed the approval process of wireless
facility zoning applications;96 therefore, any roadblocks that im-
pede that process are difficult to justify. Localities have used
procedural delays as one way to slow the process, often stalling
on the pretext of finalizing a structured application and siting
plan for such facilities in their locality.97 The practical effect of
these delays circumvents the clear intent of the Act. Many local-
ities have imposed outright moratoriums on new applications or
approvals until they devise a plan for approving wireless facili-
ties.98 Towns in California, Minnesota, Wisconsin, New York,
and North Carolina, among others, all have moratoria in place
that last from six to twelve months.99
In 1996, the wireless industry, led by the Cellular Telecom-
munications Industry Association (CTIA), asked the FCC to in-
App. 1996) (concurring with much of the rationale in Medina, but also stating that
the Act does not require localities to give preferential treatment to wireless provid-
ers' zoning applications).
95. See generally Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732,
743-45 (C.D. Ill. 1997) (overruling the locality's zoning denials because such actions
were in violation of the Act); Western PCS II, 957 F. Supp. at 1236-38 (same);
BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923, 928 (N.D. Ga. 1996)
(same). But see Medina, 924 F. Supp. at 1040 (upholding the validity of a town's
moratorium on approving wireless facilities and declaring that the moratorium did
not violate the Act's "reasonable period of time" for approving such facilities).
96. See H.R. Corte'. REP. No. 104-458, at 208 (1996), reprinted in 1996
U.S.C.C.A.N. 124, 222-23.
97. See Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1458 (N.D.
Ala. 1997).
98. See Medina, 924 F. Supp. at 1039.
99. See Petition for Declaratory Ruling of the Cellular Telecommunications Indus-
try Association, In the Matter of Federal Preemption of Moratoria Regulation Im-
posed by State and Local Governments on Siting of Telecommunications Facilities
(visited Jan. 17, 1999) <httpJ/www.fcc.gov/wtb/Siting/ctiapet.html>.
1999] wIR.ELEss FACILITIES ARE A TOWERING PROBLEM 991
validate all moratoria of ninety days or more on the basis that
they are impermissible market barriers."' The FCC made some
tentative rulings on the CTIA petition,'O' including a statement
that short moratoria might not be illegal if localities use them to
develop an application process.loz The FCC refused to define the
outer limits of an acceptable moratorium's timeframe, but did
invite comments on the issue."' Finally, the FCC recently
brokered a compromise in this long-standing dispute.io4 The
agreement allows moratoria in situations where localities need
"time to review and possibly amend its land use regulations to
adequately address issues . . . in a manner that addresses local
concerns, provides the public with access to wireless services for
its safety, convenience and productivity, and complies with the
Telecommunications Act of 1996."'05
When a locality adopts a zoning moratorium, it now agrees to
work with affected providers to address the issues needed to lift
the moratorium.106 If a provider believes the moratorium affects
the zoning process adversely, it may resort to an informal dis-
pute resolution option within the FCC that involves represen-
tatives of the local government and the wireless industry.10' Nei-
ther party is bound to accept the dispute resolution or its
brokered outcome,108 allowing legal action by the provider to re-
main a viable option. The FCC's compromise settlement makes
it unclear which moratoriums will still be enforced and which
will be struck down.
100. See id
101. See FCC Seeks Additional Comment on Petition for Declaratory Ruling Filed
by CTIA Concerning Local Moratoria on the Siting of Telecommunications Facilities
No. WT 97-30 (July 28, 1997) (visited Jan. 7, 1998) <httpJ/www.fec.govBureaus/
Wireless/News_Releases/1997/nrwl/7034.tst>.
102. See id
103. See id
104. See Joint Agreement Regarding Facilities Siting (visited Jan. 17, 1999) <http://
www.fcc.gov/statelocal/agreement.html>.
105. Id
106. See id.
107. See id
108. See id
992 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
Court Decisions Interpreting "Reasonable Period of Time"
The definition of "reasonable period of time," as the phrase
applies to the zoning application approval process, has a real im-
pact on whether courts will uphold a locality's zoning decision.l09
A zoning board may take more time approving one provider's
facility application as compared to another provider's applica-
tion." In Illinois RSA No. 3, Inc. v. County of Peoria,"' a feder-
al district court found a six-month approval process reasonable,
even though the locality approved similar applications in as lit-
tle as three months." For providers, this case represented a
huge loss because they prefer that all applications tend to be
treated uniformly.l"' At least one other court has found that the
length of time required to reach a zoning decision exceeded the
"reasonable period of time" requirement while still failing to
state a specific maximum allowable review time."
Unreasonable Discrimination in Reviewing PCS Applications
Section 704 of the Act prohibits a locality from denying a
wireless facility application if that denial will effectively end
local competition or favor one provider over another."' Many
109. See Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)(ii) (Supp.
II 1996) (requiring the locality to act on "any request for authorization to place, con-
struct, or modify personal wireless service facilities within a reasonable period of
time after the request is duly filed with such government or instrumentality, taking
into account the nature and scope of such request").
110. See Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 746 (C.D.
Ill. 1997).
111. 963 F. Supp. 732 (C.D. Ill. 1997).
112. See id. at 746 ("The Court cannot say that taking six months, compared to
three months, is per se unreasonable, and nothing in the record suggests that the
County simply ignored or refused to process Plaintiffs request").
113. See id. The wireless provider must carefully balance its aggressive desire for
quick approval with its need to give zoning boards the necessary time and informa-
tion to make a positive decision. It is quite possible, however, that savvy zoning
boards may use the wireless provider's flexibility against it by delaying applications
repeatedly without running afoul of the Act's reasonable time requirement.
114. See Sprint Spectrum, L.P. v. Zoning Bd. of Appeals, 662 N.Y.S.2d 717, 719
(Sup. Ct. 1997) (holding a 10-month approval process excessive under the Act's rea-
sonable time requirements).
115. See Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)(i)(I) (Supp.
II 1996).
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 993
localities insist on treating PCS and cellular providers differently,
usually by preventing the construction of PCS facilities.116
Courts have been quick to curtail this specific type of discrim-
ination.
In Western PCS II Corp. v.Extraterritorial Zoning Authority,117
a federal district court in New Mexico found that the zoning au-
thority violated the Act by unreasonably discriminating against
functionally equivalent services."' In this instance, two provid-
ers already provided analog cellular service and the denied ap-
plicant sought to offer digital service."' Other courts extended
this ruling to prevent localities from using the existence of a
single provider as a rationale for excluding new services.120
In Sprint Spectrum L.P. u. Town of Easton,12' a local zoning
board denied a PCS application because it believed adding a new
service such as PCS was not in the public interest.12'The Easton
court overruled the zoning board because the decision violated
the Act's unreasonable discrimination clause.121 Moreover, the
court noted that Congress intended for facilities to be treated
differently only if the facility"create[s] different visual, aesthetic
116. See AT&T Wireless PCS, Inc. v. City Council, 979 F. Supp. 416, 424-26 (E.D.
Va. 1997), reu'd, 155 F.3d 423 (4th Cir. 1998). This case was the first zoning dispute
under the 1996 Act to receive appellate review. The zoning board won a stunning
victory in the Fourth Circuit. The trial court had found that the zoning board's deni-
al of AT&T's zoning request violated the Act's requirement that digital providers
receive the same access as cellular providers and that the zoning decision was made
without substantial evidence. See id at 430. The Fourth Circuit reversed, holding
that the board supported the zoning decision with substantial evidence and that the
Act's prohibition on discriminating against digital providers applied only to blanket
prohibitions on access for digital providers, not to individual zoning decisions about
the placement of digital facilities. See AT&T Wireless PCS, Inc. v. City Council, 155
F.3d 423, 427-31 (4th Cir. 1998). Zoning boards should take close note of the fact
that the Fourth Circuit found that "substantial evidence" could be as simple as plac-
ing the decision in the board's minutes and sending a letter of denial without any
findings of fact or explanation of the decision. See id
117. 957 F. Supp. 1230 (D.N.M. 1997).
118. See id at 1237.
119. See id
120. See, e.g., Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 51-52 (D.
Mass. 1997).
121. 982 F. Supp. 47 (D. Mass. 1997).
122. See id at 51.
123. See id
994 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
or safety concerns . . . to the extent permitted under generally
applicable zoning requirements."124 The court noted that the zon-
ing board might not have understood that PCS offered more
than plain cellular service and that the board's protective ac-
tions burdened "new entrants offering potentially superior tech-
nology.""' The district court's strongly worded decision in
Easton should compel zoning authorities to treat all wireless
providers equally, even if Illinois RSA No. 3 allows them to treat
each application along a separate and distinct timeline.
In several other recent cases, federal district courts have
found that zoning board denials are the functional equivalent of
unreasonable discrimination against an equivalent provider. In
Sprint Spectrum L.P. v. Jefferson County,126 a federal district
court in Alabama held that a moratorium resolution by a local
zoning board acted as a substantive prohibition against new en-
tries into the marketplace and actually had the effect of prohib-
iting the development of personal wireless services altogether."'
In Illinois RSA No. 3, the district court found that a zoning
board had acted unreasonably when it used the language of its
zoning ordinance as a justification for denying the petitioner's
application, even though it previously had granted similar re-
quests for variances in the same area.12' In localities that al-
ready have accommodated one provider's facilities, any denial of
an application for a newer service could violate the Act by im-
peding the development of functionally equivalent services.
124. Id. (quoting H.R. CONF. REP. No. 104-458, at 208 (1996), reprinted in 1996
U.S.C.C.A.N. 124, 222.).
125. Id. at 51-52.
126. 968 F. Supp. 1457 (N.D. Ala. 1997).
127. See id at 1467-68.
128. See Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 744 (C.D.
Al. 1997) ("The County offers no reason why it would permit someone to construct a
cellular tower in the R2 district and not the RI district. And without any reason,
discrimination is unreasonable and violates the Telecom Act"). The district court's
ruling hurts localities because it evinces a judicial intolerance to differences in zon-
ing in R1 and R2 areas. In reality, localities probably spend a great deal of time
defining what is acceptable for each of these areas.
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 995
INTERPRETING THE ACT'S "SUBSTANTIAL EVIDENCE"
REQUIREMENT
Once localities actually start processing wireless facility appli-
cations, zoning application denials or the imposition of moratoria
inevitably follow.129 The public's perception of such facilities as
ugly monolithic towers hovering over their neighborhoods is the
basis for many such denials."" Wireless providers use the feder-
al courts to enforce their rights,131 and they succeed primarily
because zoning authorities fail to show that they based their
denial of the wireless providers' application on "substantial evi-
dence" as required under the Act.132 The term "substantial evi-
dence" must be identified in a way that stands as a middle
ground between the industry's view that no denial is valid and
the locality's view that any justification for denial is sufficient.
Section 704 of the Act states that "[a]ny decision by a State or
local government or instrumentality thereof to deny a request to
place, construct, or modify personal wireless service facilities
shall be in writing and supported by substantial evidence con-
tained in a written record."113 The federal definition of"substan-
tial evidence" is well-established in administrative law and ap-
129. "Th[e] continued expansion of cellular communications systems, in both capacity
and geographical coverage, has resulted in the inevitable conflict with local land-use
planning and zoning laws." Nancy M. Palermo, Comment, Progress Before Pleasure:
Balancing the Competing Interests of Telecommunications Companies and Landown-
ers in Cell Site Construction, 16 TEMP. ENv7L. L. & TECH. J. 245, 246 (1998). Zon-
ing boards have responded to these conflicts by either imposing moratoria or denying
the applications altogether. See id- at 247.
130. See Hughes, supra note 13, at 497 (stating that citizens "detest" the visual
impact that towers have on their neighborhoods and referring to the towers as "eye-
sores").
131. See Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)(v) (Supp.
II 1996) (stating that expedited review is available in the federal courts); see also
Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 49 (D. Mass. 1997) (citing
cases in which service providers have used federal courts to enforce their rights and
challenge zoning board decisions); Western PCS II Corp. v. Extraterritorial Zoning
Auth., 957 F. Supp. 1230, 1233-34 (D.N.M. 1997) (same).
132. See, e.g., Sprint Spectrum, 982 F. Supp. at 52 (ordering a town to grant a
special permit where the zoning board did not base its denial of the permit on "sub-
stantial evidence"); Illinois RSA No. 3, 963 F. Supp. at 743 (reversing a zoning
board's denial of a special use request because the decision was not supported by
"substantial evidence" in the written record).
133. 47 U.S.C. § 332(c)(7)(B)(iii).
996 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
plies to these cases." "When deciding whether a decision rests
on substantial evidence, the Court must consider all of the evi-
dence in the record, the evidence in favor of the decision under
review as well as the evidence opposed to the decision.""' The
Supreme Court also has stated that"[tlhe decisions of intermedi-
ate administrative tribunals are considered part of the evi-
dence."136 The Act shifts the burden of proof to the locality to
present "substantial evidence" to justify its decision to deny an
application; the provider, as plaintiff, will never have to present
"substantial evidence" to prove that the zoning board should
have approved the project.137
Since the Act's passage, federal district courts have taken the
first steps towards defining"substantial evidence"in the context
of the Act. In Illinois RSA No. 3, a federal district court defined
"substantial evidence" as "`such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion."131
The court called it "`more than a scintilla of evidence, but less
than a preponderance.'"13' These two definitions leave localities
and wireless providers unclear as to which rationales for deny-
ing facility applications will survive judicial scrutiny.
Most court cases have focused on three central issues in defin-
ing "substantial evidence." First, whether the zoning authority's
process helped meet the burden of proving "substantial evi-
dence" for denial.140 Second, whether the zoning authority gave
undue weight to citizen concerns over the health ramifications of
134. See infra notes 135-39 and accompanying teat.
135. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), quoted in Illinois
RSA No. 3, 963 F. Supp. at 744.
136. Id. at 496, quoted in Illinois RSA No. 3, 963 F. Supp. at 744.
137. See Sprint Spectrum, 982 F. Supp. at 49. "Mhe TCA [Telecommunications Act
of 19961 shifts the burden of proof to the government agency that denied the appli-
cant's siting request" instead of requiring the applicant to submit substantial evi-
dence to sustain the application. Id. (citation omitted). But see S. 1350, 105th Cong.
(1997) (proposing that Congress alter the Act by shifting the burden in these cases
to the provider).
138. Illinois RSA No. 3, 963 F. Supp. at 743 (quoting Drilling Mechanic Contrac-
tors, Inc. v. NLRB, 107 F.3d 521, 524 (7th Cir. 1997)).
139. Id. (quoting Geske & Sons, Inc. v. NLRB, 103 F.3d 1366, 1374 (7th Cir.
1997)).
140. See infra text accompanying notes 143-60.
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 997
direct exposure to emissions from the facility."' Third, whether
the zoning authority gave the proper weight to expert testimony
in rendering a decision.142
Procedural Issues
A zoning board cannot choose to offer a justification for its
decision only when the denied party exercises its right of judicial
review.i43 Rather, the evidence for the denial must be on hand
before the board makes the decision.' In Western PCS 77, a
federal district court in New Mexico ruled that a zoning board
failed the "substantial evidence" standard when its sole justifica-
tion for denial was a post-appeal transcript of the proceedings.'
In Illinois RSA No. 3, a federal district court in Illinois found
that a zoning board violated the "substantial evidence" standard
when it failed to list any reason for the denial in its letter to the
applicant and did not refer to any evidence in the record that
justified the denial.141 The court made it clear that it wanted
"written findings and conclusions so that reviewing bodies may
efficiently judge those findings and conclusions against the evi-
dence and the record."14'For zoning boards, the message is clear:
document concerns about proposed facilities early, often, and in
detail or risk reversal in court.
A federal district court in Virginia examined one of the most
egregious procedural mistakes made by a locality in Virginia
141. See infra teat accompanying notes 161-82.
142. See infra test accompanying notes 183-89.
143. See, e.g., Virginia Metronet, Inc. v. Board of Supervisors, 984 F. Supp. 966,
972-73 (E.D. Va. 1998) (reversing a zoning board's denial of a special use permit to
a wireless provider when the board sent the required denial letter six days after the
provider filed suit, on the basis that the letter's rationale appeared to be a mere
pretext for the denial).
144. See id
145. See Western PCS II Corp. v. Extraterritorial Zoning Auth., 957 F. Supp. 1230,
1236 (D.N.M. 1997) ("The requirement for a written denial was obviously included to
permit a reviewing court to ascertain the rationale behind a denial so that it can
determine if that denial comports with the requirements of the statute.").
146. See Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 743 (C.D.
Ill. 1997). The court concurred with Western PCS II, noting that"a post-appeal tran-
script of proceedings before a local zoning authority is not sufficient to meet the re-
quirements of§ 332(c)(7)(B)(iii)-."Id (citing Western PCS II, 957 F. Supp. at 1236).
147. Id
998 WILLIAM AND MARY LAW REVIEW (Vol. 40:975
Metronet, Inc. v. Board of Supervisors."' The city council failed
to send the required denial letter until thirty-four days after it
made its decision,141 while the Act requires such a denial to be
issued within thirty days of the decision.l50 The court in Metro-
net noted that the board had written the letter six days after the
provider filed suit in court, thus giving the board's stated ratio-
nale in the letter the appearance of mere pretext."" The board's
failure to notify the provider promptly virtually required the
court to rule against the zoning board, regardless of any reason-
ing the board might have had for its decision.
A zoning board or locality must proceed carefully where it uses
a multi-step review and approval process that encourages the
development of records that would justify or refute denial of the
application. In Western PCS II, a locality's preliminary review-
ing body unanimously recommended that the zoning authority
approve the wireless provider's application."' After that rec-
ommendation, however, the zoning board voted to deny the ap-
plication, and the court subsequently determined that the zoning
board's decision failed the "substantial evidence"test.153 Western
PCS II therefore implies that if a zoning board delegates author-
ity to a planning committee or other subcommittee, it must be
able to justify a rejection of that subcommittee's recommenda-
tion to approve the zoning application. At least in the context of
wireless facility applications, Western PCS II stands as a barrier
to zoning boards that might otherwise summarily dismiss an
advisory board's recommendations.
Courts seem to take a dim view of zoning board records that
only reflect the opinion of one member of a zoning authority. In
Western PCS II, the district court ruled that a denial did not
meet the"substantial evidence"test when the transcripts reflected
148. 984 F. Supp. 966 (E.D. Va. 1998).
149. See id at 970.
150. See Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)(v) (Supp.
II 1996).
151. See Virginia Metronet, 984 F. Supp. at 973.
152. See Western PCS II Corp. v. Extraterritorial Zoning Auth., 957 F. Supp. 1230,
1234 (D.N.M. 1997).
153. See id. at 1235-36.
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 999
the rationale of just a single member of the board.154 If individual
members of a zoning board are not willing to voice their con-
cerns about why they voted to deny the application for a wire-
less facility,they are aiding the provider's chances of successfully
appealing the decision in federal district court."' The message
here is simple and easy to enact: a zoning board must require
that each member state the rationale for his or her vote as the
board makes its decision on a wireless facility application.
Localities that are in the process of altering their zoning ordi-
nances or processes to address the wireless facility problem
should not allow those changes to affect pending applications
adversely.In Sprint Spectrum L.P. v. Jefferson County, a federal
district court in Alabama held that when a zoning authority im-
poses a moratorium, pending applications must be processed
using e3dsting ordinances, not future rules."' The import of this
holding is clear: a locality may not receive applications from pro-
viders and then suddenly change the rules to prevent these ap-
plications from being approved. Refusing to process applications
under the pretense of waiting for new regulations to take effect
will never survive the Act's"substantial evidence"requirement.'5'
In addition to novel definitions, courts are not likely to accept
novel justifications for denying applications. In Smart SMR v.
Borough of Fair Lawn Board of Adjustment,158 a zoning board
denied a new wireless antenna site partially because the addi-
tional wireless services might be used to conduct illegal business
transactions.159 The New Jersey Supreme Court quickly dismissed
that rationale,"o and the very fact that the zoning authority
even offered it probably undermined any credibility the zoning
authority might have had before the court.
154. See id
155. See id (holding that Congress intended the written denial requirement to per-
mit a reviewing court to ascertain the rationale behind a denial in order to deter-
mine if the denial comports with the statute).
156. See Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1466-67,
1469 (N.D. Ala. 1997).
157. See id at 1468-69.
158. 704 A.2d 1271 (N.J. 1998).
159. See id at 1280-81.
160. See id (finding that while a monopole was not an inherently beneficial use, it
met the criteria for a variance and that the zoning board's reasons for denial were
insufficient)
1000 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
Substantive Concerns:Aesthetics, Provider Concessions Values,
and Citizen Complaints
In construing the "substantial evidence" standard, courts have
shown little regard for the substantive viewpoints of the citizens
who must live with these facilities."' The crusade of a lone citi-
zen, challenging the interests of a wireless provider, is not likely
to meet the "substantial evidence" standard required to justify a
denial of the application. In BellSouth Mobility, Inc. v. Gwinnett
County,"' one citizen spoke at a public hearing on behalf of oth-
er residents who opposed the granting of a variance for a wire-
less provider."' The residents' concerns in BellSouth, that the
radio frequency emissions posed a safety risk to area residents
and that the facility would cause a significant loss in property
value for nearby property owners, mirrored those heard at zon-
ing board meetings across the country.16' In reversing the deci-
sion of the zoning board, the court in BellSouth stated that a
"[lone citizen's] generalized concerns do not constitute substan-
tial evidence supporting the board's decision."165
A federal district court in Illinois showed even greater disre-
gard for citizens' complaints, apparently muting the voices of
citizens aligned in opposition to these projects."' The citizens
who spoke at the zoning board hearing in Illinois RSA No. 3 pre-
sented a survey showing the extent of citizen opposition to the
proposed wireless facility.167 The zoning board considered the
survey before denying the variance requested by the wireless
provider for the project.16" In reversing the zoning board's deci-
sion, the court ruled that the zoning authority inappropriately
161. See, e.g., Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 745
(C.D. M. 1997) (reversing a denial of a special use permit, thereby disregarding a
survey presented by local residents describing public opposition to the proposed facil-
ity); BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923, 926, 928 (N.D.
Ga. 1996) (reversing an application denial despite opposition voiced by a concerned
citizen).
162. 944 F. Supp. 923 (N.D. Ga. 1996).
163. See id- at 928.
164. See id at 926.
165. Id at 928.
166. See Illinois RSA No. 3, 963 F. Supp. at 745.
167. See-id at 738-39, 745.
168. See id
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 1001
considered the survey as "substantial evidence"that could justify
a denial of the variance because it "amount[ed] to [nothing]
more than evidence of generalized and unfounded opposition to
the proposed cell site."lss
Wireless providers often have made significant concessions in
regard to the details of their proposed facilities in exchange for
the ability to build these facilities.17' There is, however, a limit
to the concessions providers are willing to make. When negotia-
tions fail, and a zoning board subsequently denies the applica-
tion, the provider can use the concession negotiations as proof
that the board's denial fails to meet the Act's "substantial evi-
dence" requirement. For instance, the court in BellSouth ruled
that the zoning board's denial of an application lacked "substan-
tial evidence" after the provider compromised and made four
major concessions.17' This case suggests that it is in the provid-
er's best interest to offer concessions, because such a good faith
effort shows the reviewing court that facility placement was pos-
sible and that the zoning authority's denial may have been un-
reasonable.
Courts also have shown that citizen concerns about aesthetic
beauty or the wireless facility's impact on surrounding property
values are not persuasive. While most zoning boards follow the
maxim "all politics is local,»172 and probably view aesthetic con-
cerns and drops in property value as major issues when making
zoning decisions, courts find these rationales to be insufficient
when compared to the national interest of establishing wire-
less networks.173 For example,in Evans v.Shore Communications,
169. Id at 745 (citing BellSouth, 944 F. Supp. at 928).
170. See, e.g., BellSouth, 944 F. Supp. at 925 (describing a wireless provider's
agreement to prohibit the use of microwave equipment, to paint the monopole a color
selected by neighbors, and to keep the monopole unlit).
171. See id
172. Mark Cheshire, Revving It Up!, DAILY REC. (Baltimore), Apr. 19, 1997, at 1A,
available in 1997 WL 8897302 (noting that with zoning, permitting, and environmen-
tal issues, "all politics is local").
173. For example, Virginia does not allow aesthetics to serve as a rationale for de-
nying property owners the right to use their land as they see fit. A zoning authority
"cannot limit or restrict the use which a person may make of his property under the
guise of its police power where the exercise of such power would be justified solely
on aesthetic considerations." Board of Supervisors v. Rowe, 216 S.E.2d 199, 213 (Va.
1002 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
Inc.,174 the Maryland Court of Special Appeals ruled that a local
zoning board wrongly denied an application for a new tower
when the major concern discussed at the hearing was the tow-
er's potential to undermine the rural character of a neighbor-
hood.175 The proposed tower location seemed ideal: its location on
high ground allowed for reduced antenna height, nearby foliage
presented a natural visual buffer, and the surrounding proper-
ties were adjacent to a major highway so that nearby property
values would not be adversely affected.17' The fact that the zon-
ing board overlooked all of these factors in denying the applica-
tion makes one wonder if the problem may not be that zoning
boards turn down applications without "substantial evidence,"
but rather that zoning boards fail to approve applications be-
cause they do not know "substantial evidence" when they see it.
In Nynex Mobile Communications Co. v. Hazlet Township
Zoning Board of Adjustment,l" the New Jersey Superior Court,
Appellate Division, overruled a zoning board's denial of a wire-
less provider's application when the board had based its decision
on the aesthetic damage that would result to a neighborhood if a
wireless provider were to attach a ten-foot antenna to an al-
ready existing water tower.17' Again, the denial defied logic be-
cause the provider intended to make only a small modification to
an existing structure to accommodate the disputed antenna. It
also seems strange that a zoning board might argue legitimately
that a water tower, rarely considered an architectural crown
jewel, might be made less aesthetically pleasing by the addition
of a ten-foot antenna.179
1975) (quoting Kenyon Peck v. Kennedy, 168 S.E.2d 117, 120-21 (Va. 1969)).
174. 685 A.2d 454 (Md. Ct. Spec. App. 1996).
175. See id at 464.
176. See id at 456-57.
177. 648 A.2d 724 (N.J. Super. Ct. App. Div. 1994).
178. See id at 732.
179. Nynex Mobile might be one of the first situations in which a wireless provider
went to court to defend a decision to collocate its equipment with an already exist-
ing visually displeasing facility. Perhaps this was a case in which the locality pre-
ferred to spread out its aesthetically displeasing structures throughout the community.
In contrast, most communities probably would consider it more logical to place all of
its aesthetically displeasing structures together.
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 1003
While it makes sense from a judicial perspective to rule that a
parade of irate and unhappy citizens complaining about aesthetic
effects and lower property values do not meet the "substantial
evidence" burden, such a rule significantly undercuts the demo-
cratic process.180 Zoning boards usually are composed of elected
officials, or people appointed by elected officials, and therefore
are responsible for and accountable to the people in their com-
munity."' Even though zoning boards often make a good faith
attempt to take the concerns of affected citizens into account in
making a zoning decision, the federal courts have interpreted
the Act in such a way as to subvert legitimate citizen opposition
fundamentally.1112 The courts have not yet explored one particu-
lar question regarding citizen opposition: Does substantial, orga-
nized, and orchestrated opposition to a variance application
meet the Act's definition of"substantial evidence"? It is unclear
whether, given enough time and money, a well-organized group
of citizens could clear an evidentiary burden that no single citi-
zen has yet met.
The Use of Experts to Provide "Substantial Evidence"
Zoning battles typically involve the use of experts who assess
the proposed project."' While courts have given short shrift to
experts' warnings about the decline in property values in areas
in the shadow of wireless facilities,184 they have shown some def-
erence to industry experts used by providers to support their
applications.185 Expert testimony therefore may be insufficient to
180. See AT&T wireless PCS, Inc. v. City Council, 155 F.3d 423, 429 (4th Cir.
1998).
181. See 3 ANDERSON, supra note 61, §§ 19.15-19.16, at 384-87.
182. Zoning boards may in fact benefit from this in that they may be able to use
the federal courts as an excuse to dismiss citizen complaints in these cases and
move quickly to approve an application for a wireless facility, all the while blaming
the courts for tying their hands and preventing them from carrying out the citizen's
wishes.
183. See, e.g., Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 738,
744 (C.D. M. 1997); BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923,
925-26, 928 (N.D. Ga. 1996); Pierce Estates Corp., Inc. v. Bridgewater Township Zon-
ing Bd. of Adjustment, 697 A.2d 195, 196-98 (N.J. Super. Ct. App. Div. 1997).
184. See, e.g., Criscuola v. Power Auth., 621 N.E.2d 1195, 1197 (N.Y. 1993) (dis-
missing the usefulness of expert opinion on property values).
185. See, e.g., Illinois RSA No. 3, 963 F. Supp. at 744; Sprint Spectrum L.P. v.
1004 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
oppose the application, but sufficient to provide proof that "sub-
stantial evidence" existed to approve the wireless provider's ap-
plication.
In Nynex Mobile, a New Jersey court found that a real estate
expert's testimony that property values would not decline rebut-
ted the zoning board's claim that it based its denial on"substan-
tial evidence.s18' The court noted that "[o]ne senses in reading
this transcript that no matter how many experts this applicant
could have produced, the Board was not prepared to accept the
reality of the telecommunications world of 1992 and 1993 and
beyond. There is clearly in this record an identifiable public in-
terest.""' Similarly, in Sprint Spectrum L.P. v. Town of Farm-
ington,lss a federal district court ruled that the opinions of mem-
bers of a zoning board, who lacked expertise in the subject of
property values themselves, were not sufficient to rebut the tes-
timony of an expert who concluded that a wireless facility would
not damage neighboring property values."'
SUGGESTED CRITERIA FOR LOCALITIES TO UTILIZE IN
THE APPLICATION PROCESS
This Note has considered many different facets of the zoning
application process as it pertains to wireless facilities. While the
cases have been widely dispersed throughout federal and state
courts, a few emerging patterns suggest criteria for a uniform
facility approval process. Zoning boards tend to deny wireless
provider applications in large numbers,""while courts generally
prefer to allow such applications to proceed because of the na-
tional impact of denial.191 These patterns suggest that wireless
Town of Farmington, No. 3:97 CV 863, 1997 WL 631104, at *4 (D. Conn. Oct. 6,
1997); Nynex Mobile Communications Co. v. Hazlet Township Zoning Bd. of Adjust-
ment, 648 A.2d 724, 725-27, 732 (N.J. Super. Ct. App. Div. 1994).
186. See Nynex Mobile, 648 A.2d at 728-29 (quoting trial judge).
187. Id (quoting trial judge).
188. No. 3:97 CV 863, 1997 WL 631104, at *4 (D. Conn. Oct. 6, 1997).
189. See id at *4; see also Evans v. Shore Communications, Inc., 685 A.2d 454,
464 (Md. Ct. Spec. App. 1996) (finding that the provider's expert witnesses proved
that the proposed facility was viable and safe).
190. See supra note 95 and accompanying text.
191. See id; see also Nynex Mobile, 648 A.2d at 730-31 (stressing the importance
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 1005
providers are not being treated like other zoning applicants. The
criteria and planning process this Note will now suggest there-
fore relies on the important assumption that wireless providers
are entitled to a zoning process especially tailored to their
unique characteristics and the requirements of the Act. If a zon-
ing board uses these suggested criteria correctly, it will reduce
significantly the chances that its decisions will be challenged in
court, while also increasing the chances that it will approve each
individual application.
Step 1: Getting Started
There are some general criteria and planning steps that all
localities should take before they finalize a plan for considering
wireless facilities applications. First, the locality should examine
its ordinances and state laws, and determine how wireless pro-
viders and wireless facilities fit into those statutes and ordinances.
Localities should adjust local ordinances to reflect which zoning
areas may have wireless facilities without a variance and which
areas require a variance. Many communities have already con-
templated and implemented this first step.192
Second, a locality should map its jurisdiction to consider
where it has already placed wireless facilities and where the
best remaining locations are from an engineering standpoint.
Mapping the jurisdiction in this way will help the zoning board
to be proactive in identifying which properties might be most
attractive to wireless providers. Mapping also provides zoning
boards with a list of alternative sites for proposed facilities."'
Localities also could decide that certain preexisting facilities in
their area, such as water towers, antennas and some buildings,
are preferred collocation sites. One proposed Model Bylaw for
of improved telecommunications for the entire community).
192. See, e.g.,CAPE COD COMBIISSION&KREINES&KREINES,INC.,MODEL BYLAW FOR
PERSONAL WIRELESS FACILITIES 7(1997)(describing the use of"Wireless Facility Overlay
Districts" designated on town zoning maps to allow taller structures).
193. See KREINES&KREMS,INC.&CAPE COD COADEssION,supra note 2,at 47.For
instance, wireless providers will want to locate their facilities near highways to ac-
commodate the high use of wireless phones, therefore a locality should identify loca-
tions near major roads that are suitable for such facilities.
1006 WILLIAM AND MARY LAW REVIEW (Vol. 40:975
localities recommends permitting wireless facilities by right on
existing towers and having the locality identify areas where
larger structures would be approved, approved with camouflage,
or prohibited entirely.19'
Step 2:Defining a Locality's Placement Philosophy
As part of mapping the locality and determining potential
sites for wireless facilities, localities need to make an important
and conscious decision about the manner in which they want to
approve these facilities. The eventual buildout of a mature wire-
less system features dozens of smaller facilities using low power
to maximize spectrum use inside a service area."' Even so, first-
stage buildout of a system usually prompts a provider to build
larger towers with more power to get the system up and running
in an area."' Localities should make conscious efforts to admit
that new providers eventually will have a mature system in
their area, which inevitably will result in a number of small
towers with low power. If that is the case, localities could ap-
proach zoning from that perspective at the outset. Localities
must be willing to choose between a small number of very large
towers and a large number of relatively small towers. That
choice is better made before the process of placing the new sys-
tems begins, as it is a decision that will permeate all future zon-
ing decisions for that locality."'
In addressing these placement issues, localities would benefit
from supporting a philosophy of more facilities with less power.
First, many of the major citizen disputes stem from plans to
build huge antenna towers,19' so the smaller the facility, the less
likely citizens will be to complain. Second, smaller facilities re-
duce health concerns about radio frequency emissions because
194. See CAPE COD COMMISSION & KREINES & KREINES, INC., Supra note 192, at 7.
195. See id at 14.
196. See id.
197. See id
198. See, e.g., Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 736-
40 (C.D. M. 1997); BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923,
924-26 (N.D. Ga. 1996); Pierce Estate Corp. v. Bridgewater Township Zoning Bd. of
Adjustment, 697 A.2d 195, 196-98 (N.J. Super. Ct. App. Div. 1997).
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 1007
smaller facilities use less power in order to divide and reuse the
spectrum inside the service area."' Third, approving a plan that
calls for multiple facilities instead of a few facilities avoids a
"Russian Roulette" dilemma for zoning boards 200 If a locality
plans to allow only a few large facilities inside an area, citizen
groups will seek to pass those facilities off to other neighbor-
hoods or locations that do not affect them201 If the number of
facilities is much larger, however, zoning boards can discount
much of the citizen opposition, as every neighborhood will need
to be home to some facilities in order for the system to work ef-
fectively. Localities with a detailed facility plan also will be
more likely to withstand court challenges when they deny appli-
cations that do not comply with their master plans202 Unfortu-
nately, some smaller localities will not be able to adopt these
types of plans because they will have no leverage with providers
who want to build only one or two facilities in their area2o3
Step Three:Meeting the "Substantial Evidence"Standard
After a zoning board has mapped a locality, adopted its ordi-
nances, and made a conscious decision about how it prefers facil-
199. See John Wildermuth, Communities Battle Cellular Towers, Antennas /A "Not
in My Back Yard'Phone Fight, S.F. CiHRON., Mar. 2, 1995, at Al, available in 1995
WL 5267697.
200. See J. Linn Allen, Determining What Goes Where; One City's Adventure in
the Twilight Land of Zoning, CHI. TRIB., Sept. 27, 1989,-at 10, available in 1989 WL
4627641 (noting that the zoning process can be a game of"Russian Roulette').
201. See Palermo, supra note 129, at 256 (stating that citizens frequently argue
"that there are plenty of alternative locations for these offensive towers, such as
commercial zones outside of their neighborhoods').
202. Even local residents can see the virtue of pre-planned zoning schemes. One
citizen suggested that his city "fm)ap out where [the towers) will be before-
hand . . . .Don't approve on a site-by-site basis.'Charles Boothe,Pagers, Cell Phones
Put More and More Towers on Horizon, RICHMOND TIMES-DISPATCH, Aug. 10, 1997,
at Bl.
203. Geographically small towns with no existing wireless service do not have the
same advantages as larger areas:
Where there is presently no service provided to an area, and construction
of a facility on the requested site could fill the service gap, denial of said
construction would prevent the provision of service. Under such a regime,
local governments would be faced with an overwhelming burden to sup-
port their denial of a permit.
Tan, supra note 48, at 488 (citation omitted).
1008 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
ities to be arrayed inside its jurisdiction, it needs to decide what
form of supporting evidence a wireless provider should offer
when applying for approval of a wireless facility. A wireless pro-
vider should supply as much advance information as possible
with its application and also should be responsive to any re-
quests a zoning board makes of them. A locality should also rec-
ognize that wireless providers value advance knowledge of the
zoning process so they can adequately prepare to defend their
zoning applications.'"
A zoning board should ask for at least six pieces of evidence in
an application process. First, the zoning board needs proof that
the location in question has sufficient power for the proposed
wireless facility.205 Second, the property physically must be able
to hold the necessary equipment for the facility.20' This consider-
ation is especially important in those cases in which the facility
will be added onto an existing structure, such as when antennas
are placed on rooftops or water towers. Third, the zoning board
should supply proof that the property's historical and architec-
tural pedigree does not prevent or discourage placement of the
facility.207 While some historical buildings are among the best
engineering locations for wireless facilities, these locations
should be protected and zoning authorities should generally for-
bid wireless facilities absent a showing that no better location
exists. Fourth, the wireless provider should prove that the prop-
erty is easily accessible so the provider can inspect and maintain
the facility.208 Fifth, zoning boards should ask the provider to
demonstrate how the facility will fit into the provider's long-
term service plans and how the facility fits into the town's phi-
losophy of placing these facilities.209 Sixth, the zoning board
should demand documents showing compliance with all federal
regulations regarding the radio emissions from the proposed
204. See FCC FACT SHEET #2, supra note 21, at 7-8.
205. See Chuck Jones, Set Your Sites for Better Wireless Management, TELEPHONY,
Jan. 9, 1995, at 24.
206. See id
207. See CAPE COD COMMSSION & KREINES & KREINES, INC., supra note 192, at
12-13.
208. See Jones, supra note 205, at 24.
209. See FCC FACT SHEET #2, supra note 21, at 7.
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 1009
facility.210 Most localities, if not all, doubtlessly will add many
more required documents to this list, but these six items provide
a basic framework for zoning boards to consider these applica-
tions rationally.
Step Four: The Collocation Requirement
It appears that wireless providers and localities are not liti-
gating disputes about collocation of wireless facilities. Perhaps
this issue is being negotiated at the zoning level and is not a
factor in the decision-making process, but if a locality adopts the
steps outlined above to map its jurisdiction, it will also be able
to identify whether collocation is a viable option for wireless pro-
viders. Once a locality allows wireless providers to build more
facilities, the need for collocation will grow, and the number of
locations that will be eligible to host these smaller facilities also
will expand. It is therefore prudent for a locality to make a find-
ing that some locations like water towers are per se acceptable
for collocation.As mentioned in one case, it stretches the absurd
to claim that the aesthetic value of a water tower suffers by the
addition of a ten-foot antenna.zll It seems wiser to make an ugly
location uglier than to create a new aesthetically displeasing loca-
tion. For the wireless industry, collocation makes sense because
providers save on construction and approval costs and because
the existing structure usually occupies the most technologically
superior location for the proposed facility.
Zoning boards need to be sensitive to the notion that some
engineering factors limit the ability to collocate, so collocation is
not a panacea for the placement problem. A factor that could
affect the collocation option in a negative way is the existing
structure's ability to support the new facility's weight load.212
The adverse radio frequency interference that could occur from
placing those facilities together also potentially limits collocation
210. See KREINEs & KREINES, INC. & CAPE COD CowmsiON, supra note 2, at 35-
36 (noting the ability of localities to enforce the FCC's radio frequency (RFR) emis-
sions standards and the implications of this enforcement).
211. See Nynex Mobile Communications Co. v. Hazlet Township Zoning Bd. of Ad-
justment, 648 A.2d 724, 725 (N.J. Super. Ct. App. Div. 1994).
212. See KREINEs & KREINES, INC. & CAPE COD COMMISSION, supra note 2, at 17.
1010 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
of multiple wireless facilities in a single location, in an antenna
farm for instance."' The wireless industry argues that colloca-
tion requires larger, more powerful facilities to offset possible
interference problems."'
The industry also argues that collocation implicates an anti-
trust issue that localities have not contemplated, as it requires
competitors to share proprietary technical information that could
reduce competitive edges"' However, collocation actually could
preserve competition inside a market because collocation would
allow a zoning board to offer an ideal facility location to more
than one provider."' By forcing the providers to share the best
locations, the zoning board will be able to prevent one of the pro-
viders from leveraging any enhanced transmission abilities in
the area into a competitive advantage that could drive out com-
petition and drive up prices for consumers.21' Collocation offers a
partial solution for the need to identify multiple locations for
these facilities.21' In fact, many localities already require colloca-
tion where possible 219 Collocation would work best if.localities
used it as both a carrot and a stick for wireless providers. Local-
ities could entice wireless providers by using their local master
plans to identify collocation sites and make the collocation zon-
ing approval process easier. At the same time, localities could
require providers to show that they have made a good faith ef-
fort to find a suitable collocation site for the facility before start-
220
ing the review process for a new site.
213. See i& at 18.
214. See id The FCC encourages collocation to the extent possible, but collocation
should "not be viewed as a complete solution to all land use concerns associated
with the deployment of personal wireless services." FCC FACT SHEET #2, supra note
21, at 8.
215. See KREINES & KREms, INC. & CAPE COD COMMISSION, supra note 2, at 18.
216. Technical or engineering requirements do not limit the potential for collocation.
For instance, one antenna tower builder claims it can build monopoles that accom-
modate seven or eight positions. See id. at 20 (noting the claim made by UniSite,
Inc., a master tower builder).
217. See generally id at 18 (recognizing that carriers may avoid collocation "for
competitive reasons").
218. See id
219. See id
220. At least one Model Bylaw for localities endorses a requirement for the provid-
er to undertake a good faith effort to find a collocation site before seeking approval
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 1011
Step Five:Defining Setbacks and Fall Zones
Wireless facilities usually require an antenna of some sort,"'
therefore there always are concerns that those facilities might
collapse."' Most localities do not have standards for fall zones
and the wireless industry believes they are unnecessary because
the chance of tower failure is so small."'While one commentator
recommends a fall zone equal to the height of the tower in deter-
mining setback requirements,224 implementing such a standard
seems excessive. A locality-should adopt reasonable fall zone or
setback requirements that still allow for construction of the an-
tennas and towers so as to avoid challenges by providers that
the requirements are impermissible market barriers. Any re-
quirements regarding fall zones or setbacks should thus be mini-
mal in their effect on the ability of wireless providers to erect
facilities. Furthermore, fall zone requirements should never be
the sole justification for denying an application for a wireless
facility. The locality has a duty to work with the provider to
make safety regulations work for both parties 226
Step Six:Making Decisions That Supply "Substantial Evidence"
Providers have continually gone to court over the meaning of
the phrase "substantial evidence," and for the most part, they
have won these battles against localities that have denied their
applications. While no proposed guideline could offer a com-
plete list of steps that zoning boards should take to inoculate
for a solo facility. See CAPE COD COAT IISSION & KREINEs & KREINES, INC., supra
note 192, at 21.
221. See Hughes, supra note 13, at 470 (stating that wireless providers must rely
on an established "infrastructure" in order to remain competitive in the market and
describing this"infrastructure"as"antennas mounted high above the ground on either
existing structures or on towers erected specifically for this purpose").
222. See KREiNES & Km ms, INC. & CAPE COD COMMISSION, supra note 2, at 15.
223. A fall zone refers to the area where there is a potential hazard from collapse
or falling debris. See id at 15-16. A recent study found that only one similar free-
standing tower in the United States has collapsed in 40 years. See id at 16.
224. See id at 15.
225. See generally Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)
(Supp. H 1996) (placing limitations on zoning board actions and generally requiring
a locality to accommodate wireless service facilities).
226. See supra notes 129-60 and accompanying text.
1012 WILLIAM AND MARY LAW REVIEW (Vol. 40:975
themselves from challenges to a decision to deny zoning applica-
tions, previous court challenges suggest several fundamental
steps.
First, legal counsel for a local zoning board should educate its
members as to legally permissible rationales for denying an ap-
plication. As described earlier in this Note, health concerns or
the complaints of a few citizens are not "substantial evidence" to
support a denial and providers will succeed in challenging these
rationales. 27 Second, a zoning board's denial of an application
should state each member's rationale for voting for or against
the project on the record prior to the vote. Without evidence as
to the board members' reasons for denial, a court likely would
reverse the locality's denial because it lacks the required "sub-
stantial evidence.""' Third, the rationale for any denial must be
included in an official record and in the letter sent to the provid-
er informing it of the denial. Further, the denial must be issued
within thirty days of the decision in order to comply with the
Act."' Fourth, a zoning board must realize that aesthetic con-
cerns alone are not sufficient to justify denying an application,"'
but they do warrant negotiations with the provider to modify the
facility to alleviate such concerns. Fifth, zoning boards must rec-
ognize that their members are not considered experts for the
purpose of refuting the testimony of a provider's expert witness-
es, unless they have specific and professional knowledge 231
Sixth, the zoning board must realize that any decision to decline
an application places the burden of proof on the board to show
there was "substantial evidence" to justify its decision 232 Sev-
enth, in making its decision to decline an application, a zoning
board must ensure that it points to specific evidence in the re-
cord, especially when it chooses to overrule the positive recom-
227. See supra notes 161-82 and accompanying text; see also Brian J. Sullivan, The
Effect of the Telecommunications Act on Zoning and Planning, 16 ComM. LAW. 3, 5
(1998) (noting that "generalized concerns" and "unfounded fears" do not constitute
"substantial evidence" and will not support a decision to deny an application).
228. See supra notes 143-60 and accompanying text.
229. See 47 U.S.C. § 332(c)(7)(B)(v).
230. See supra text accompanying notes 172-82.
231. See supra note 189 and accompanying text.
232. See supra note 137 and accompanying text.
19991 WIRELESS FACILITIES ARE A TOWERING PROBLEM 1013
mendations of a subcommittee or staff.233 Eighth, the zoning
board may not apply rule changes to the zoning process to appli-
cations that are on file or pending before the board 234 Ninth, the
zoning board must not create novel justifications for its denials
(e.g., prohibiting new cellular towers because they encourage
drug trafficking by cellular phone).21' By incorporating these
nine items into zoning board procedures, localities will be less
likely to repeat the specific mistakes others have already made
in denying zoning applications to wireless providers.
Putting Citizen Complaints in Perspective
As unpopular as it sounds, in order to comply with the Act,
zoning boards need to minimize the impact of citizen concerns
on the placement of wireless facilities. There are several mea-
sures localities can employ to allay the outrage of its residents.
First, the locality should create a master plan of possible facility
sites in the locality to help residents understand how their
neighborhood fits into a larger scheme of potential or proposed
wireless facilities. In order to reduce opposition, the locality
should show its citizens that everyone will be inconvenienced
equally in the placement process. Second, by reworking town
ordinances to include or specifically exclude wireless facilities,
the zoning board can use the law as a shield against criticisms
from citizens. Third, legal counsel for zoning boards should edu-
cate the members of the board that citizen concerns alone are
unlikely to be sufficient evidence to deny a wireless provider's
application for a wireless facility. Zoning boards should also be
aware that wireless providers likely will appeal and win any
denial based on citizen complaints 236 While the courts have con-
sidered the citizen opposition issue at length, it is still unclear
233. See supra notes 143-47 and accompanying text.
234. See, e.g., Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457, 1469
(N.D. Ala. 1997) (stating that application must be decided on the basis of guidelines
in effect on the date of filing).
235. See supra notes 158-60 and accompanying text.
236. See Sullivan, supra note 227, at 5 ("Indeed, the mere existence of opposition
[by citizens], even numerous and outspoken, does not constitute substantial evidence
and, by itself, does not suffice to support a decision to deny an application . . . ').
1014 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
as to whether serious, organized, and well-funded citizen opposi-
tion to an application could ever meet the "substantial evidence"
burden.
Implementing Health Concerns
Local zoning boards still are free to contest the emissions
standards of proposed wireless facilities, but they must do so in
an organized, prudent manner that is also in accordance with
the Act. The Act forbids a locality from denying applications
based on health concerns if the application meets the FCC's
emissions standards.23' The Act did not address specifically the
role zoning boards should play in ensuring compliance with
health standards.
There are at least three steps every zoning board can take to
make sure that wireless facilities comply with health standards.
First, the zoning board should require wireless providers to
prove that the proposed facility will fall within the FCC's emis-
sions guidelines. Second, the zoning board should require that
all wireless facilities be inspected regularly to insure that they
continue to operate inside the FCC's emission standards. Third,
the locality also should demand a copy of any environmental
assessment that the provider files with the federal govern-
ment,238 which could be submitted with the application for the
facility's zoning permit. While a locality cannot require higher
standards for radio frequency emissions than the FCC requires,
it can mandate that providers prove that a proposed facility
meets the FCC requirements as part of the application pro-
cess 239 If a zoning board takes these proactive steps, it might
prove to citizens that it has required the provider to comply with
rigorous health standards. The locality might then be able to
quell some citizen complaints.
237. See Telecommunications Act of 1996 § 704, 47 U.S.C. § 332(c)(7)(B)(iv) (Supp.
II 1996).
238. See KREINES&KREINES, INC.&CAPE COD COM USSION, supra note 2, at 32-33.
239. See id at 33 ("[T]here are no proscriptions on local governments monitoring
NEPA [National Environmental Policy Act] rules, including the FCC Guidelines at
the local level and towns are encouraged to follow the NEPA process closely.").
1999] WIRELESS FACILITIES ARE A TOWERING PROBLEM 1015
Minimizing Aesthetic Concerns about Wireless Facilities
The cases examined in this Note show that concerns about
aesthetics or a decline in property value due to the placement of
wireless facilities are never sufficient to support denial of a wire-
less facility application.m These concerns,however,do justify the
imposition of camouflage requirements." Zoning boards should
encourage or require camouflage in residential and historical
areas where concerns about aesthetics are most prominent. Lo-
calities might then allow larger towers in business and industri-
al zoning areas where there is less concern about aesthetics and
the property values are unlikely to fall at the same rate as they
might in an affected residential neighborhood.
Step Seven: Processing the Application Within a Reasonable
Period of Time
Zoning boards have faced significant legal problems by violat-
ing the Act's "reasonable time" requirement 242 The FCC's recent
compromise decision on moratoriums could put either the rea-
sonable time issue to rest or spawn new litigation. Regardless,
zoning boards will need to put two measures in place in order to
comply with the"reasonable period of time"standard. First, they
need to make changes to local ordinances and master plans for
zoning's in a relatively short period of time because a long mor-
atorium may draw a court fight from a provider. The zoning
changes suggested by this Note could take place within ninety
days and should not prevent localities from acting on pending
applications. Those localities that already have made such
240. See Hughes, supra note 13, at 497 & n.225 (stating that localities have begun
to recognize that aesthetic arguments will not justify their decisions to deny an ap-
plication).
241. See supra notes 172-82 and accompanying teat.
242. See Sullivan, supra note 227, at 5 (summarizing the progression of zoning
boards' tactics aimed at delaying the approval of applications); see also Sprint Spec-
trum L.P. v. Jefferson County, 968 F. Supp. 1457, 1468 (N.D. Ala. 1997) (finding
that the zoning board's denial violated the Act's reasonable time requirements by
delaying the processing of an application for over 70 days).
243. See supra notes 100-05 and accompanying teat.
244. See Claire B. Levy,Zoning for Cellular Towers Under Current Regulatory Con-
ditions, 27 COLD. LAw. 75, 76 (1998).
1016 WILLIAM AND MARY LAW REVIEW [Vol. 40:975
changes are available to serve as models for localities still in
the transition period, making it all the more likely that localities
can make zoning changes quickly and efficiently. Once a locality
lifts a moratorium, the zoning board must be ready to consider
and approve facilities immediately to avoid a court challenge by
a provider.
A second way that a locality can comply with the "reasonable
time" requirement is by identifying a maximum time limit for
consideration and processing of applications. A sixty-day re-
quirement would be reasonable because localities can require
that providers' applications include all relevant information at
the time of submission.'' By adopting a fast-track approach to
these applications, zoning boards will free themselves to consider
more important projects in their locality. While a fast-track ap-
proach might limit a citizen's opportunity to oppose granting the
wireless provider's zoning application, the courts'refusal to allow
citizen complaints as a major rationale for denying applications
suggests that there is little reason to schedule the process in a
way that favors the development of organized citizen opposition.
Step Eight:Equal Treatment for All Providers
The Act has created a simple, bright-line test for considering
applications for wireless facilities: A locality cannot deny new
providers access to the community simply because the locality
already has existing wireless technologies. The goals of the Act
were to allow new and emerging technologies to make a seam-
less transition and to lower the entry barriers they face in at-
tacking established technologies.'' The courts have yet to accept
245. See generally CAPE COD COMMISSION & KREINES & KREINES, INC., supra note
192 (presenting the Model Bylaw for Wireless Facilities for towns in Barnstable
County, Massachusetts).
246. See FCC FACT SHEET #2, supra note 21, at 7 (stating that "it is helpful for
wireless service providers to supply as much advance information as possible').
247. See 141 CONG. REC. H8270 (daily ed. Aug. 2, 1995) (statement of Rep. Linder)
(stating the goal of the telecommunications legislation is to encourage competition
and reduce market barriers); see also Telecommunications Act of 1996 § 704, 47
U.S.C. § 332(c)(7)(iv) (Supp. II 1996) (forbidding localities from denying placement,
construction, or modification of wireless facilities based on environmental effects of
radio frequency emissions).
19991 WIRELESS FAMMES ARE A TOWERING PROBLEM 1017
any of the arguments presented by localities on this issue us A
locality still can decline a PCS application,but it must be able to
show that it would have denied a similar application from a cel-
lular provider in the area.
Step Nine:'DefLning Height Restrictions
It is difficult to ascertain"how high is too high"when it comes
to the size of wireless facilities, as there are a number of factors
involved in such a determination. A locality's height restrictions
for wireless facilities should be similar to its restrictions on
height for all buildings because the restrictions it chooses reflect
its values as a community." The locality should clearly define
and justify height considerations in its master plan for proposed
wireless facilities. For example, a locality can justify a height
restriction if it also will allow more facilities to be built to com-
pensate for the height limitations that dampen transmission.m
Legal problems arise when the zoning board restricts the height
of proposed facilities and simultaneously prevents providers
from building more facilities. It would make sense for a locality
to have different requirements for heights in different zones,
just as each zone might have different camouflage requirements
for the wireless facilities. Inside each zone, the locality must be
able to show the height restrictions will not affect the provider
adversely.
CONCLUSION
Citizens want, and will soon demand, the ability to communi-
cate with others from anywhere at any time. If providers and
localities can agree effectively and efficiently to build wireless
systems quickly enough to satisfy consumer demand, prices will
fall even as demand continues to increase. Communities without
full and complete access to wireless technology eventually will
feel the negative effects of their inaccessibility and will be forced
248. See, e.g., supra notes 117-28 and accompanying text.
249. See KREINEs & KREms INC. & CAPE Con COMMISSION, supra note 2, at 40.
260. See id at 13 (noting that since shorter wireless facilities have reduced cover-
age, more are needed to generate coverage comparable to taller facilities).
1018 WILLIAM AND MARY LAW REVIEW (Vol. 40:375
to change. Communities that have the foresight to accommodate
cutting-edge wireless technologies now will thrive in the future.
Consumers will soon realize the futility and economic waste in-
volved in paying taxes for zoning boards to defend their actions
in court while simultaneously paying the wireless providers'hid-
den litigation costs incurred in obtaining the board's approval to
construct the system's facilities. Once communities recognize
that their future economic success can depend in part on their
access to wireless technology, compliance with section 704 of the
Act will become a privilege and a civic duty rather than a dis-
tasteful burden.
Kevin M. O'Neill