Item 3 - PH/Ord. on Cell Towers - Laserfiche WebLink

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Illinois University of Illinois at Udaana-Champaign '-" Real Estate Letter The Price of Zoning Revisited: Zoning Issues Raised bY the Telecommunications Act of 1996 Carol C. McDonough The Telecorranunicntions Act of 1996~ Clevela_n~, is noteworthy because it The 1996 Act was passed following contains provisions that may affect a reinforced the earlier notion Cfa hierar- the somewhat recent development of the municipality's ability to implement chy of land uses - with single-family personal communication services (PCS) zoning regulations. This article briefly residential use at the top of the hierarchy .mode of wireless, corumunication'(PCS summarizes the history and purpose of - to be protected. From an economic ~s a type of digital service). The deVelop- zoning regulalions, discusses the chai- standpoint, municipal zoning regula- ment of PCS, which'offers better sound lunge to local zoning posed by the Tele- tions are meant to.mitigate the negative quality and better security than the older communications Act (along with recent externalities that a real estate owner's use cellular systems, has brought with.it an activities atthe state level and in the of his property might impose on other increased need for tower' si~es on which federal courts), and offers an approach by members of the community, tmnsmit~rs can be placed. PCS is located which municipalities can Optimiz~ their at a higher frequency requiring role in the process of locating sites for Challenges ~o Local Zoning towers that are closer together than the telecommunication towers. Municipalities' longstanding and brOad older cellular tower~ were. The improved power to oversee land use ha~ been called technology is also likely to necessitate TrnditionS of Loesl Control into question as legislative enacunents more towers through increased custom- For the better pan cfa century, land use and judicial rulings have pushed local er demand. It is estimated that, in high control has been largely a local govern- zoners' wishes aside in favor of improved demand areas, PCS tranmnittera will have mental function in our country. The first wireless phone service. One example is to be situated about a mile apart. comprehensive zoning ordinance in the Congress's 1996 passage of the Telecom- The typical municipal zoning ordi- United States was adopted in New York munications Act, which opens doors for a ' nance requires a PCS provider to obtain City in 1916, and other municipalities federal agency ~o overrule local 0fficials a variance or a special permit in order to soon followed. The zoning enabling acts on siting telecommunication towers. The construct a cellular tower. A var/ance is of many states are based on the federal Act (which has no impact on most zoning required when the proposed ~ower would Standard Zoning Enabling Act of 1926. . functions) empowers the Federal Corn- be built in a zoning district that prohibits In the 1926 landmark decision Euclid munications Commission (FCC) to pm- such structures; receipt of a variance v. Ambler Realty Co., the US Supreme erupt local officials' decisions on the usually requires proof of hardship owing Court rejected argument~ that zoning placement, construction, and modifica- to the topography of oiher nearby sites. laws were an unconstitutional depriva- tion of personal wireless service fa¢ili- A specialpermit is required when a cell tion of property without due process, and ties. The FCC is given express regulatory tower is a permitted use of the proposed subsequently many state courts upheld power over wireless facilities' radio fre- locus; the permit indicates that the local the concept of zoning. The Court's deci- quency emissions when concerns arise ity has found lhe proposed tower not to sion, involving a land owner in suburban over possible environmental impacts, be unreasonably detrimental. Of course, under the 1996 Act the FCC can second- Inside This Issue... guess a local decision to deny approval. The FCC seems willing to require aec,ep- ee ~'alue of Zon~ng ~ tance of towers U~at local officials r~ject, ' Prl~e l~pa~ts of In~o~patlble Land Uses ~ though the evidence to date is limi~l. The federal judioi~t also has shown lle G~eate~t Real£state Movle~ of~ill Y'inse 9 a willingness to substitute its vi~ts for Deal~ lll~so'ated 1~ the wishes of local t~,ulato~, alihough it IV-108