"Have any ZBA’s dealt with variances for cell phone towers?" Plan-link Q & A, June 16, 2006
Q:Have any ZBA’s dealt with variances for cell phone towers? Our ordinance prohibits them except in the two industrial zones in town. We now have a request to place one in a commercial zone that is adjacent to an industrial zone but no one in the industrial zone wants to give up space to the company putting in the tower. My concern is that the Federal Communications Act over rides our ordinance. Has anyone had any luck in stopping something such as this?
A: Here’s the short and simple: under the Telecommunications Act of 1996, municipalities cannot act in such a way as to prevent service from being provided. That means you can’t enforce a blanket prohibition against towers, nor can you enforce a provision that allows service to be provided in one part of town but not another—that is, you have to allow the service providers to “fill in the gaps.” Your regulations must be technology neutral—so even if someone invents a device that will allow for a single installation to provide coverage to your entire town, you must still allow other types of service providers to establish multiple installations as required by their technology. You can require collocation (and that is the correct spelling; go check the etymology of the word: Latin, collocare) as a first preference—meaning that providers have to demonstrate to your reasonable satisfaction that they cannot use existing installations.
Does that mean you have to roll over and play dead? No, you can impose reasonable (strong emphasis on that word) restrictions on location, height, and appearance. But if you want pine trees, make sure they look like pine trees (NOT 200’ tall; NOT very dark green; NOT yellow/brown ‘bark’; NOT symmetrical ‘limbs’); there are lots of bad examples—learn from them. If your reasonable height limitation means that the provider has to find an additional location in town to complete the service coverage, so be it—that’s not really your problem. Also, you can encourage the use of municipal property (giving the town a revenue stream from the lease), or you can leave it to private property—you don’t have to provide sites, but leave it to the market to address.
But of course, it’s always good to talk with your lawyer before taking that leap into the void.