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Bar News - June 17, 2011


Municipal & Governmental Law: The Changing Landscape for Cell Tower Approvals

By:

Introduction

With increased mobile phone and wireless internet use in the last decade, personal wireless communication facilities (commonly known as "cell towers" or "wireless towers") have become more common features in our landscape and on our land-use boards’ agendas. When Congress enacted the Telecommunications Act of 1996 (TCA), local land-use boards had to approach their review of applications for wireless towers under this new "umbrella" of federal law (Daniels v. Town of Londonderry, 157 N.H. 519, 525 (2008)).

Much has evolved since then. State and local land-use law and procedures still apply, but all decisions must be made in the context of the limitations and requirements of the federal law. In Nov. 2009, the Federal Communications Commission (FCC) issued an order setting short time-lines, or a "shot clock," for decisions on applications for both new towers and for wireless antennae on existing towers, buildings or other structures: 150 days total (from the day the application is delivered to the town) for a local land-use board to issue a written decision on an application for a new wireless tower, and 90 days total for applications for additional wireless antennae co-locating on existing structures. The "shot clock" poses additional challenges to New Hampshire municipalities. The good news is that, in at least some situations, applicants for wireless towers and municipalities are reaching agreements to avoid or resolve disputes.

Does Federal Law Pre-empt State Law in Cell Tower Decisions?

The TCA, codified at 47 U.S.C. § 332(c)(7), provides the parameters for local land use decisions on applications for the location of wireless towers and antennae. It does not generally pre-empt local or state procedural law for wireless tower and/or antenna applications. However, the federal law provides certain requirements in key areas on the substance of the decision (in the case of a denial, there can be no resulting prohibition or effective prohibition of wireless services), the documentation in the record, and the timeliness of the decision. Local land-use boards that do not meet the federal requirements (and even some that do) may find themselves in federal and/or state court.

In Daniels v. Town of Londonderry, 157 N.H. 519 (2008), the NH Supreme Court explicitly addressed the question of how the requirements under state law – in that case an application for a use variance and two area variances –mesh with the requirements of the TCA. Abutters unhappy with the ZBA’s grant of the variances, which was upheld by the superior court, appealed the matter to the NH Supreme Court. The abutters argued that the ZBA had construed the TCA as pre-empting entirely the applicant’s burden to satisfy the statutory criteria for variances under state law. Disagreeing with the abutters, the Court noted that the TCA "preserves state and local authority over the siting and construction of wireless communications facilities subject to five exceptions specified in the Act." Id. at 524 (quoting Second Generation Properties v. Town of Pelham, 313 F. 3d. 620, 627 (1st Cir. 2002)). Those five exceptions are noted below. The Court further noted: "If a board decision is not supported by substantial evidence … or if it effectively prohibits the provision of wireless services … then under the Supremacy Clause of the Constitution, local law is pre-empted in order to effectuate the TCA’s national policy goals." Id. (Town of Pelham, 313 F. 3d at 627). The Court explained that the TCA was a deliberate compromise to reconcile the goal of preserving local land-use authority with the need to facilitate the national build-out of personal wireless services facilities. Id. "The standard set forth in the TCA provided gloss over the deliberative process, and the ZBA [in Londonderry] correctly considered its implications." Id. at 525. In that case, the Supreme Court found that the ZBA appropriately determined that all of the variance criteria were met.

Federal Law and the FCC Order

The TCA contains five general parameters which must be followed by local boards. First, it prohibits state and local governments from unreasonably discriminating among "providers of functionally equivalent services" (47 U.S.C. § 332(c)(7)(B)(i)(I)). Although "unreasonable discrimination" is prohibited, local land-use boards may treat applications for cell towers that would create different visual or safety impacts on the community differently, under normal zoning and land use regulations and procedures.

Second, the TCA prohibits local governments and their land use boards from issuing decisions that prohibit, or have the effect of prohibiting, the provision of personal wireless services in their communities (47 U.S.C. § 332(c)(7)(B)(i)(II)). This limitation applies to both zoning ordinances and to decisions of local land-use boards on individual applications. It can apply to outright bans, which are uncommon now, as well as zoning and/or application criteria that are so difficult to meet that the practical effect is that an applicant will be unable to meet the standards, no matter what the applicant does. See Town of Amherst, New Hampshire v. Omnipoint Communications Enterprises, Inc. 173 F. 3d. 9, 14 (1st Cir. 1999).

Third, the TCA requires that any local land use board act on applications for cell towers within "a reasonable period after the request is duly filed" (47 U.S.C. § 332(c)(7)(B)(ii)). What is a "reasonable period"? On November 18, 2009, the FCC issued a Declaratory Ruling or Order (FCC 09-99) in WT Docket No. 08-165 (hereinafter FCC Order), brought by the wireless tower industry, creating a presumption for a reasonable period within which boards must act on applications. In essence, it creates a "shot clock" for decisions: 90 days for an application for a new antenna on an existing facility (known as "co-location") and 150 days for construction of a new wireless tower. If those deadlines are not met, applicants may sue in federal or state court, pursuant to 47 U.S.C. § 332(c)(7)(B)(v), and the court will presume the delay is unreasonable, unless the municipality can demonstrate otherwise. The FCC Order sets up a number of other timing requirements discussed more fully below.

In addition, the FCC Order imposes a deadline for local land use boards to request additional information on applications to make them "complete": 30 days from receipt of application, or the time the applicant takes to respond will not be excluded from the new timelines. Every effort should be made to review applications and to request additional information promptly.

Fourth, the TCA requires that, if a local land use board denies an application for a variance or for site plan approval of a wireless tower or antenna, the denial must be in writing and supported by "substantial evidence contained in a written record" (47 U.S.C. § 332(c)(7)(B)(iii)). What constitutes "substantial evidence" has been defined by case law to mean "more than a scintilla of evidence." ATC Realty, LLC v. Town of Kingston, N.H., 303 F.3d 91, 94-95 (1st Cir. 2002)(internal citations omitted). Boards are wise to be sure to have "substantial evidence in a written record" for all the key elements of a decision denying an application.

Finally, the TCA prohibits municipalities from denying or regulating wireless antennae or wireless towers due to environmental concerns about the radio emissions, as long as the antennae comply with FCC rules on radio frequency emissions, which are codified at 47 C.F.R. § 1.1310. 47 U.S.C. §332(c) (7)(B)(iv). Generally, a document showing compliance with the FCC rules on radio frequency (RF) emissions is part of the application package presented to the local land use board.

Remedies Under Federal and State Law and FCC Order

If applicants are dissatisfied with the denial of an application, the TCA entitles them to bring an action in federal or state court, within 30 days of the denial (47 U.S.C. § 332 (c)(7)(B)(v)). As a practical matter, such applicants normally choose federal court. The court may order a permit or variance granted if it finds a violation of the TCA. As noted above, even without a denial, if a board fails to meet the deadlines in the FCC Order for a decision on an application (90 days for co-location, 150 days for a new structure), the applicant may sue in federal (or state) court, and the burden is on the municipality to show the delay is not a violation of the TCA.

Under state law, abutters and others interested in the application process, who object to the granting of a variance or application for site plan approval, may challenge the approval in state court (RSA 677:4, 15).

Stipulations, Settlements and Intervenors

As local land-use boards have become more educated on the TCA and the FCC’s "shot clock" order and their interplay with state law and local procedures, some cases have been resolved through settlements or stipulations. The parties can agree, when an application is pending before a local land use board, to extend the "shot clock" deadlines to allow a board to complete review.

Recently, in New Cingular Wireless PCS, LLC v. Town of Candia, NH, et al., (slip op.,09-EV-387-SM, April 19, 2011), the parties could not agree on whether the town had violated the TCA by failing to support its decision with substantial evidence, but they did agree to a "high-low" stipulation: if the court found for the Town (no violation), applicant would get a 100-foot tower; if the court found a violation of the TCA, applicant would get a 120-foot tower, a different height then originally requested. The parties agreed to a stipulation outlining the town’s approval of such a tower, at either 100-foot or 120-foot, depending on which party prevailed on the TCA question. The court found no violation of the TCA and adopted the stipulation for a tower at 100 feet. Id. No abutters were involved.

This settlement appears to be consistent with a recent decision by a three-judge panel of the First Circuit Court of Appeals, in Industrial Communications and Electronics, Inc., et al., v. Town of Alton, NH, et al. (slip op., 10-1738, May 19, 2011). In that case, applicants sued the town after its ZBA denied an application for a variance to build a 120-foot tower near Lake Winnipesaukee. During the course of the federal case, the applicants settled with the town. The parties agreed to a tower, at a lower height than originally requested. Abutters/intervenors appealed the settlement. The Court of Appeals, re-affirming the TCA’s deference to local land use decisions absent a finding of a violation of the TCA, remanded the matter for proceedings on whether the original denial of the variance violated that law. If it did, the settlement could be approved by the court. Importantly for municipalities, the appellate court ruled that the town could settle its case with the applicants and was not obliged to continue to defend the denial of the variance. The abutters could assume that defense if they desired to protect their rights. At the time this article goes to press, it is unknown whether the applicant will request rehearing by the full Court of Appeals.


Kate Miller

Sharon Cuddy Somers


Kate Miller and Sharon Cuddy Somers are members of the Municipal and Telecommunications Law Practice Groups at Donahue, Tucker & Ciandella. This article is adapted from their lecture materials from the Fall 2010 LGC Municipal Law Lecture Series.


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