Buried within the federal Telecommunications Act of 1996 (TCA) is a provision governing the zoning of wireless communications facilities – i.e., cell towers. Section 704 of the TCA, now codified at 47 U.S.C. § 332(c)(7), states that except as otherwise provided, local zoning authority over cell towers is preserved. It then places significant limits on that authority. Local zoning decisions cannot unreasonably discriminate among providers, have the effect of prohibiting service, or regulate on the basis of the effects of radio frequency emissions. Denials of cell tower applications must be in writing and be supported by substantial evidence in a written record. Providers can appeal denials to federal court within 30 days.
Section 332(c)(7) has spawned a decade or more of litigation, including many cases in Massachusetts. The most recent is T-Mobile Northeast LLC v. City of Lawrence (pdf). T-Mobile sought to fill a coverage gap in Lawrence by building an antenna on a condominium building in a residential zone. Lawrence’s zoning ordinance bars antennae in residential zones except on city-owned land, and requires a 1,000-foot setback from any residential lot. T-Mobile had asked the city to make municipal land available for its facility, but got no response. Its next move was to apply for the necessary approvals, including variances from the ownership and setback requirements. Lawrence’s zoning board of appeals (ZBA) denied T-Mobile’s application, stating that it could not find sufficient facts to approve. At the hearing, some members of the ZBA expressed their views that the coverage gap was not real, and that the antenna should go on municipal land so that the city could benefit financially. T-Mobile appealed the denial.
Judge Nathaniel M. Gorton of the District of Massachusetts had little trouble concluding that the denial was not supported by substantial evidence, and thus violated the TCA. The ZBA’s decision provided no specific facts to support its findings, and “utterly fail[ed] to address any specific factors that relate to the requirements of the Ordinance” for the requested variances. Judge Gorton found that the record evidence supported approval of the application. In particular, he found that the ZBA could not ignore expert evidence of T-Mobile’s coverage gap in favor of its members’ own lay observations that they were “satisfied with T-Mobile’s cellular coverage in the area.”
Having lost on the merits, the city argued that the case should be remanded because its mayor had submitted an affidavit describing the city’s plans to open up alternative municipally-owned sites for public bidding. The court characterized this “suggested intention” as “too little too late.” The affidavit was no substitute for action by the City Council or the ZBA. Therefore, the court ordered that the requested approvals be granted.
The lesson here is simple, but one that towns too often ignore, at their peril. Zoning decisions for cell towers have to follow the municipality’s zoning laws, and a denial must identify the reasons for denial and the evidence that supports those reasons. Boards can’t dismiss scientific evidence of a coverage gap in favor of their own observations. And if the relevant zoning ordinance or bylaw requires facilities to be built on municipal land, then municipal land should be made available. For some further comment on the City of Lawrence case, see this article in the most recent BNA Real Estate Law Industry Report.