AG 1997 07 21 - Laserfiche WebLink

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Siting Cellular Towers: What You Need to Know, What You Need to Do provider's ability to offer service. An ordinance might include such severe restrictions on the placement and number of towers in a community that they interfere with the reception ora signal and make it impossible to deliver service. In such a case, the fact that a local government ordinance permits the siting of cellular towers is insufficient to meet the requirements of the Act if the community remains unable to receive satisfactory service. There is no requirement that every local community have a cellular tower. The Act says that there should be no prohibition on the service; it says nothing about the specific facilities. Therefore, a community of small geographic size might be able to limit the number of towers, or avoid a cellular tower completely, ff it can demonstrate that subscribers can receive adequate service from rowers located outside the jurisdiction's corporate boundaries. Some local governments have instituted temporary freezes or moratoria on the granting of facility siting permits in order to review the requirements of the 1996 Act, develop relevant ordinances, and make long-term land use assessments. The Cellular Telecommunications Industry Association has ' challenged such moratoria before the FCC, claiming that they are a barrier to market entry and violate the Act. At least one court has determined that a short moratorium is not a "prohibition on wireless facilities, nor does it have a prohibitory effect. It is, rather, a short term suspension of permit issuing while the city gathers information and processes applications." Spt/ne Spectrum, L.P. v. City o/Medina, Washington. Instituting moratoria on the processing of applications and the granting of tower siting permits should not become a regular practice by local governments. Ifa locality determines that a brief moratorium is necessary in order to develop a procedure for the effective handling of siting requests, the FCC (in its Fact Sheet on National Wireless Facilities Siting policies) recommends that the locality communicate with wireless service providers about the intended duration of the moratorium, the tasks the locality wishes to accompl}sh during the moratorium, and the ways - such as by providing additional information about facilities and services - in which the providers can assist the locality in ending the moratorium. There is no requirement that every local community~ hav'e a cellulartower..:'" ~ 3. A local government must act within a reasonable l~eriod time on requests for permission to lalace or construct wireless telecommunications facilities. The time taken to act on an application will be considered reasonable if it is no longer than the time the local government usually takes to act on other requests - such as zoning variances - of comparable magnitude that have nothing to do with telecommunications facilities. The Act does not require local governments to give preferential treatment to zoning requests involving telecommunications facilities -Such requests can wait their turn. The request should not be moved down the list, but it does not have to be moved up the list. 4. Any city or countycounc//or zon/ng board dec/s/on denying a request for permission to install or construct wireless telecommunications facilities must be in wr/t/ng and must be based on evidence in a written record before the council or board. This requirement may necessitate a considerable change in practice for some local governments, since it means that written proceedings on a zoning application must be produced. This can be done by having the proceedings transcribed and by requiring the applicant, the city or county staff, and any interested members of the public to submit their comments and arguments in wr. iting to the council or board. Local government staff must ensure that any facts or arguments on which the council or board may rely in denying a request are included in the transcribed hearing or written filings submitted to the council or board before its decision is made. The' decision itself also must be in writing and contain reasons that are consistent with the Act's requirements. Localities should consult extensively with city or county attorneys to implement this requirement. 5. Ifa wireless telecommunications facility meets technical emissions standards set by the FCC, it is presumed sa~e. A local government may not deny a request to construct a facility on grounds that its radiofrequency emissions would be harmful to the environment or the health of residents if those emissions meet FCC The Act gives the FCC, not local governments, the sole authority to determine what standards wireless facilities must meet to ensure that their radiofrequency emissions do not harm humans or the environment. While local governments can require facilities to comply with the FCC emissions standards, they may not adopt their own standards. If the facilities meet FCC emissions standards, concern ~bout the effects of 6