AG 1997 07 21 - Laserfiche WebLink

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LOCAL ZONING AUTHORITY OVER CELLULAR ANTENNAS AND TOWERS oval govemments exercise zoning authority to protect the ~ealth and safety of residents and to ensure orderly land use development. Ia~al officials also use zoning to preserve the ~thetic character of the community and guard against new -.~nd uses that clutter up neighborhoods with unsightly facilities. '% a great extent, the 1996 Telecommunications Act ~ecifically protects local zoning authority over the placement Tfcellular towers. At the same time, however, the law places come new federal restrictions on that authority. _he Act addresses the issue of local zoning authority over wireless telecommunications facilities in three ways. First, it tablishes a general principle that local zoning authority is _'eserved, subject to certain conditions. Second, it lists the conditions that local zoning requirements must satisfy. Third, identifies which disputes will be handled by the courts and hich will be handled by the FCC. -ye CondiUons AffecUng Local Zoning Authority 1T'local zoning requirements satisfy certain conditions, nothing in the 1996 Telecommunications Act limits or affects the ning authority of local governments over the placement, :onstruction, and modification of wireless telecommunications facilities. In order to maintain their zoning authority over reless telecommunications facilities, local governments must urdsfy five conditions. Local zoning requirements may not unreasonably : 'criminate mnong wireless telecommunications providers :hat compete against one another. =is requirement does not mean that local governments must :nat competitive providers in exactly the same way if their proposed facilities present different zoning concerns. ~ongress intended to give local governments flexibility in this area. The law recognizes, for example, that a proposed 50-foot tower in a residential district presents different concerns than a 50-foot tower in a commercial district, even if the two towers are going to offer services that compete with one another. As a result, applications to site these facilities may be treated differently. Another defensible difference in treatment of providers interested in siting facilities might be the order or timing of a particular request if it is for use on a limited capacity tower site. As a general rule, however, local governments should avoid making zoning decisions that give one provider of wireless service a competitive advantage over another. Under the law, if a local government has no rational basis for making a distinction between providers whose facilities have identical characteristics, differential treatment of those providers is prohibited. For example, a zoning ordinance that permits one provider of wireless services to construct a tower in a commercial district, but prohibits the construction of ~i similarly sized tower by another provider in that same commercial district with no other distinguishable differences in impact, is probably inviting a challenge based upon unreasonable discrimination. 2. Local zoning requirements may not prohibit or have the effect of prohibiting the l~rovislon of wireless telecommunications semice. This requirement is designed to prevent local governments from imposing outright bans on wireless telecommunications services. However, local ordinances may limit the number and placement of facilities so long as those limits do not prohibit or have the effect of prohibiting a wireless telecommunications 5