Zoning Practice — August 2011

Ask the Author

Here are reader questions answered by John W. Pestle author of the August 2011 Zoning Practice article "Federal Cell Tower Zoning: Key Points and Practical Suggestions."

Question from M. Lee:

T-Mobile has applied for 27 DAS sites in our city, one of many cities in the San Francisco Bay Area. The sites are within the residential area right-of-way. Residents do not want these sites in front (often 20 feet from rooms) of their homes. We feel they are unsightly, add more clutter to the already overburdened overhead powerlines, tear up driveways in some instances, add guy wires to walking areas, lower property values, and reduce the beauty of our walkable areas, etc.

  1. Is it possible to use the macro sites, outside of the residential areas, rather than the micro DAS sites to provide the increasing capacity needs that carriers want to serve?
  2. Have any cities you know been able to convince T-Mobile and other DAS vendors (like ExteNet) to keep out of the residential areas ROW. And if so, how were they able to do so.

Answer from author John W. Pestle:

This question about DAS overlaps with the similar DAS question from Doug Luftman below, so please see that response. The same disclaimers apply, as this relates to California law.

To respond on your two specific questions, whether conventional cell towers located outside the residential area can serve that area is an engineering and technical question dependent on the facts of your specific situation — there is no general answer. Presumably at some level of usage the answer is no, at which point the options are either conventional cell towers or DAS sites to serve that area.

I am aware of a city in another state which was able to very effectively camouflage DAS sites (as trees, cacti, signs, lamp posts, etc.) in residential areas, such that residents were often unaware DAS antennas were present. That was in a situation where the city could compel all utilities to go underground (achieved only after litigation), and the city and residents contributed some money towards the cost of undergrounding. My impression (which is only that) is that California law may not be as favorable, but you need to check with a California attorney experienced in such matters to find out — see the recommendation in my answer to Doug Luftman.

The more broadly applicable point is that DAS sites can be — and have been — camouflaged or "disguised" so as to reduce their visibility and intrusion. See the comments on camouflaging in my article in Zoning Practice, and visit the website mentioned there: http://cellularpcs.com/gallery/. It has literally hundreds of pictures of camouflaged sites — including some camouflaged/less intrusive DAS sites, some of which I believe are in California. Following up on those may prove helpful.

Question from Janine Divyak, AICP, Dona Ana County, New Mexico:

We are getting a flood of applications within our county for cell towers due to the high demand of the Smartphone. We have three different ordinances that regulate cell towers for each jurisdiction, and we are looking at having similar standards county-wide. Are there any model ordinances available and/or can you provide me with some ordinances that regulate cell tower sitings, please?

Answer from author John W. Pestle:

Here are a few suggestions on the topic of cell tower ordinances, with the caveat that any ordinance has to be carefully tailored to the laws and situation of the municipality in question:

  1. We have a model ordinance available which may prove helpful (if it isn't, send it back and we won't charge you). Go to www.varnumlaw.com/Services/Cable-Telecommunications/Order-Model-Documents.
  2. Be cautious about the ordinances offered by some firms, and adopted by some municipalities, that are very long and give the distinct impression that their purpose is to keep cell towers out. Although there are areas where cell towers may not be warranted, in general Federal law (as set forth in our article in Zoning Practice) does not allow a municipality to prevent a cell tower from being built if one is truly needed to fill a gap (although the courts require that the gap be filled by the least intrusive means possible, often a "stealth" tower concealed as a tree, etc).
  3. Check back in a few days, as I hope to have some actual ordinances which have been adopted to suggest to you.

Question from Debbie Todd, City of Madisonville, Kentucky:

Mr. Pestle, I have a public hearing on Friday to consider a height variance for a cell tower. The tower will be located on commercial property but adjacent to several residential homes. The tower could be located on property within ¼ mile that would be much more appropriate as it would be on our County fairgrounds (which they have agreed to allow) and not so close to residential homes. Kentucky Revised Statues state the following three things should be considered when granting a variance:

  1. The requested variance arises from special circumstances which do not generally apply to land in the general vicinity, or in the same zone;
  2. The strict application of the provisions of the regulation would deprive the applicant of the reasonable use of the land or would create an unnecessary hardship on the applicant; and
  3. The circumstances are the result of actions of the applicant taken subsequent to the adoption of the zoning regulation from which relief is sought.

If the Board makes a decision on one of the 3 above, in your opinion would their case stand up? I know regulating cell tower location is very hard but not really sure about the height. Any insight/advice you could give would be most appreciated.

Answer from author John W. Pestle:

Debbie, I am not a Kentucky lawyer knowledgeable about how the Kentucky courts interpret your statutes, so I can't advise you on the Kentucky statutes you cite. You should check with your City Attorney on them.

Here are some practical but non-legal points, as well as some thoughts from a federal law perspective:

  1. Cell companies start by specifying a "search ring" within which a local company is asked to find a site for a cell tower. I would ask about the search ring specified by the company's engineers to see what land it includes, what sites within it were considered, why certain ones were or were not pursued, etc.
  2. Obviously you want to ask why the county land will or will not work for them, as well.
  3. As set forth in my Zoning Practice article, federal law focuses on different points, mainly procedural (written decision, written record, etc.). The major substantive law aspect of federal law is that you cannot prohibit cellular service, such as by preventing the cell company from filling a significant gap. But even there the courts generally require showings along the lines that there is no other nearby site that would work, and that the site chosen is the least intrusive one possible.
  4. You may well find that the response by the cell company (which you may choose to ask for in writing, as well as verbally at the hearing) is quite technical. In that case, having an engineering consult specializing in assisting municipalities on these types of matters can be quite helpful, and often (I don't know about Kentucky) this can be done at the applicant's expense. See the discussion in our paper about this, and be sure to check the credentials of the engineer.

Question from Doug Luftman:

We have begun seeing DAS infrastructure vendors going through the California PUC to get authorization to add their DAS systems to utility poles in residential communities. Do you have any insight that you can provide as to the strengths and weaknesses of this approach and what municipalities should consider in this new approach that telecom carriers and their vendors seem to be pursuing (presumably to attempt to avoid local zoning regs)? Thanks for your insight.

Answer from author John W. Pestle:

Doug, this is really a California law question, and I am not a California attorney, so I cannot respond specifically to your question. Attorney Jonathan Kramer of Los Angeles is knowledgeable on the specifics of DAS in California, from a municipal perspective. You may wish to contact him at 310-405-7333.

In general though, in some states (and my impression is that this is true in California) DAS systems qualify as "telephone companies" under state law. And once they are so certified, then often (and again I believe this is true in California, although it varies by state) local zoning control is diminished. However, if they are a phone company, then typically local right of way controls apply, which may provide some assistance.

What can communities do? In some states it is local zoning ordinances which exempt electric utilities, phone companies and the like from zoning via an "essential services" (or similar) exemption. For this reason, many zoning ordinances provide that cell phone antennas and towers are not "essential services."

Question from Mark Sargis, Chicago, Illinois:

I'm somewhat familiar with the requirements for Cell Tower Zoning, and how issues of height and location must be handled reasonably by the municipality and in accordance with federal requirements. And I know that many if not most local zoning ordinances, following federal law, have adopted zoning provisions that specifically address cell towers. But I wondered whether there are any analogous zoning requirements, acceptable standards or best practices (per federal law or regulation, or industry standard) that apply specifically to radio transmission towers (such as AM band transmission, which might be non-directional during the daytime but directional at night). Also, do you know whether any local jurisdictions have set standards for RF safety, either incorporating by reference FCC or other safety standards or trying to implement additional safety standards?

Answer from author John W. Pestle:

To my knowledge there are no similar statutes or FCC rules applicable to radio or TV towers, although there have been cases we have been involved in (which did not go anywhere) where broadcasters sought FCC assistance in overcoming zoning ordinances or the like which applied to (and restricted) new broadcast towers.

The FCC radio emission safety standards apply to all transmitters, whether cell phone, radio, TV or otherwise. However, as you may be aware, communities can enforce the FCC's standards at least as to cell phones. In some instances this is done in the grant of zoning approval, by requiring testing for and compliance with the FCC's standards.

However, typically the situations for the most concern about violations of these standards are not free standing towers, but antennas on the sides or roofs of buildings, particularly ones that are occupied. This is due to the fact that radio waves can interact in unpredictable ways with the metal in buildings, and the greater risk in such installations that something can go wrong (rodent or workman making a hole in a cable, etc). And the fact that the distances from a malfunctioning antenna to people are typically much shorter for antennas on buildings than for those on towers.

The industry typically has been resistant to local initiatives in the RF emission area, the current example being the industry suit against a San Francisco ordinance requiring retailers to prominently label cell phones with the amount their emissions, even though the FCC requires each cell phone to be tested on this (and the result is available on the manufacturer's web site, among other places).

You may wish to take a look at the FCC publication which was co-authored with and for local governments, "A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance," available at http://wireless.fcc.gov/siting/FCC_LSGAC_RF_Guide.pdf.