Aesthetic-Based Cell Tower Zoning Ordinance Upheld

On May 13, 2008, the United States District Court, Northern District of Georgia held that the Telecommunications Act of 1996 (TCA), 47 U.S.C. § 151 et seq., does not preempt state or local zoning powers so long as local governments (1) do not unreasonably discriminate among providers; (2) prohibit personal wireless services; or, (3) limit placement of wireless facilities based upon “environmental effects of radio frequency emissions.” 

 

The Court held that a local zoning ordinance that established aesthetic-based guidelines for placement of wireless, cellular, television and radio telecommunications towers and antennas was a reasonable and proper exercise of local governments exercise of its zoning and police powers and was not preempted by TCA.

 

Keep reading for GZB’s summary of Southeast Towers, LLC v. Pickens County, United States District Court, Northern District, Gainesville Division, Civil Action File No. 2:06-CV-0172-RWS, decided May 13, 2008.

Southeast Towers, LLC and New Cingular Wireless PCS, LLC (collectively “SE Towers”) wanted to construct a 250-foot telecommunications antenna in Pickens County, Georgia to expand its personal wireless communications system.  SE Towers chose a site that was close to the unincorporated village of Tate in the foothills of the Appalachian Mountains and known its historic and abundant marble quarries dating back to 1830s.  Tate is home to numerous historic sites listed on the National Register of Historic Places.  The site SE Towers chose was approximately 1,100 feet from the Tate Historic District.

 

To build its tower, SE Towers had to obtain permits from the Federal Communications Commission, the Federal Aviation Administration, and the Pickens County zoning authority.  Because of the potential visual impact on the Tate Historic District, SE Towers also had to obtain permission from Georgia’s State Historic Preservation Officer under the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq.

 

SE Towers obtained all the necessary permits and permission, except from Pickens County. Under the Pickens County zoning ordinance, a permit was required to construct a telecommunications tower or antenna in excess of 70 feet in height which had the stated purpose to “establish guidelines for sitting of all wireless, cellular, television and radio telecommunications towers and antennas.”  The zoning ordinance outlined several specific “goals” to effectuate that purpose, which included:

 

To locate telecommunications towers and antennas in areas where adverse impacts on the community are minimized;

 

To encourage the design and construction of towers and antennas to minimize adverse visual impacts; and,

 

To protect those geographic areas containing visually significant or unique natural features.

 

At a public hearing, a representative from community and historic preservation groups made a presentation opposing the tower because it would have “direct and adverse visual impact” on the views from within the Tate Historic District, which was followed by a number of residents voicing aesthetic displeasure with the proposed tower.  Pickens County denied the permit.

 

SE Towers appealed under the Telecommunications Act of 1996 (TCA), 47 U.S.C. § 151 et seq. seeking an injunction from Pickens County to issue the permit.  The District Court denied the appeal holding that the TCA did not preempt Pickens County’s zoning authority.

 

TCA does not preempt state or local zoning powers so long as local governments (1) do not unreasonably discriminate among providers; (2) prohibit personal wireless services; or, (3) limit placement of wireless facilities based upon “environmental effects of radio frequency emissions.”  The Court held that the aesthetic “goals” of the Pickens Countyzoning ordinance did not conflict with the TCA because nothing in the TCA “forbids local authorities from applying general and nondiscriminatory standards derived from their zoning codes, and . . . aesthetic harmony is a prominent goal underlying almost every such code.”

 

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3 responses to this post.

  1. Posted by Scott Kaisler on September 29, 2008 at 12:32 pm

    Hi Matt,

    Since you have covered this issue, you and your readers might take interest in the following article from the San Francisco Chronicle regarding the recent 9th Circuit Court ruling concerning local government control over wireless sites within their jurisdiction. The Federal Court ruling may assist local governments in dealing with the issue you broached in the article. This ruling is especially relevant since the CTIA (aka wireless carriers) has filed with the FCC to strip cities of the ability to control their own matters.

    Link to 9th Circuit Court Decision

    Best,

    Scott

    09-11-08) 17:42 PDT SAN FRANCISCO — A federal appeals court reversed itself Thursday and said cities and counties can regulate the location and appearance of wireless towers and poles, a ruling that could revive a dormant San Francisco ordinance.
    The Ninth U.S. Circuit Court of Appeals in San Francisco upheld San Diego County’s limits on the placement, size and design of towers and poles that are needed for companies to provide cell phone service and wireless Internet connections. The court also voted 11-0 to discard a standard it had established in 2001 that barred local governments from adopting any restrictions that “may have the effect of prohibiting” wireless services.
    Federal courts in the nine-state circuit have relied on the 2001 ruling to overturn restrictions on telecommunications structures in several communities, including San Francisco and Berkeley. The court said Thursday that it had misinterpreted federal law when it issued the earlier ruling, and that local governments can regulate wireless towers and poles as long as they don’t actually prohibit wireless service within their borders or create a “significant gap in service coverage.”
    San Diego County’s 2003 ordinance was intended to keep unsightly structures out of neighborhoods. It required poles to be camouflaged in residential areas, set height limits, required companies to submit a “visual impact analysis,” and allowed a zoning board to deny an application if it was inconsistent with the character of the community. Two courts had overturned the ordinance, based on the 2001 appellate standard, before Thursday’s ruling reinstated it.
    The new ruling gives cities and counties “the ability to even-handedly control the environment in our neighborhoods,” with no exemption for wireless companies, said attorney William Marticorena, president of the California-Nevada chapter of a national association of telecommunications regulators. “There isn’t some special place for the telecom operators to put the 50-foot-tall red monopole (cellular tower) in front of city hall.”
    Thomas Bunton, a deputy county counsel who represented San Diego County, said the ruling allows local governments to hold public hearings and require wireless towers and poles to be concentrated in certain areas and camouflaged to fit in with their surroundings.
    Lawyers for Sprint, which challenged the San Diego County ordinance, and Verizon, which filed supporting arguments, were unavailable for comment.
    In San Francisco, Deputy City Attorney William Sanders said the ruling could restore portions of a 2007 law that a federal judge struck down in June.
    The ordinance required wireless companies to seek a city permit before locating transmitters or other installations near a park, a historic landmark or a building with architectural importance, or on a street that the city has designated as scenic.
    U.S. District Judge Marilyn Hall Patel, citing the appeals court’s 2001 decision, ruled that the ordinance was invalid because it allowed public hearings in permit disputes and failed to set precise standards for denying a permit. San Francisco supervisors have already drafted a new ordinance to comply with the ruling, but the city now has the option of asking Patel to reconsider in light of Thursday’s decision, Sanders said.
    The 2001 decision was also the basis of a January 2006 appeals court ruling that allowed Qwest Communications to install a fiber link to the Lawrence Berkeley National Laboratory over the city of Berkeley’s objections. The court said in 2006 that Berkeley’s ordinance, which required telecommunications companies to pay a fee or go through an extensive permit process, had the effect of denying service.
    Marticorena, who took part in the Berkeley case, said Thursday’s ruling won’t affect Qwest, which has installed its link, but will allow Berkeley and other cities to take another look at their regulations.

    Scott Kaisler
    Vice President of
    RF Risk Mitigation
    RF CHECK Incorporated
    2658 Del Mar Heights Rd. #274
    Del Mar, CA 92014
    Phone: 877.RF.CHECK
    Cellular: 760.685.5313
    E-Mail: scott@rfcheck.com

  2. Posted by Sally Eubanks on October 20, 2009 at 12:10 pm

    I am a resident in Tate, Georgia and it is very frustrating when you have to stand outside down the driveway to pick up a signal. I do not see any reason why one of the towers that mimic a tree would not work out for our historic area.
    Please reconsider this WE NEED CELL RECEPTION.

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