Item 6 - PH/Cell Towers - Laserfiche WebLink

Home Browse Search

Illinois Offi~ ofR~l ,~tm~ Universit~ of i1~ at U~a~pai~ Real Estate Letter The Price of Zoning Revisited: Zoning Issues Raised bY the Telecommunications Act of 1996 Carol C. McDonough The Teleconununications Act of 1996~ Cleveland, is noteworthy because it The 1996 Act was passed following contains provisions that may affect a reinforced the earlier notion ofa 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, communication(Pcs summarizes the history and purpose of - to be protected. From an economic ~s a type of digital service). Thc deVelop- zoning regulations, discusses the chai- standpoint, municipal zoning regula- ment of PCS, which'offers better sound ienge to local zoning posed by the Tele- tions are meant to.mitigate the negative quality and better' security than thc older communications Act (along with recent externalities that a real estate owner's use cellular systems, has brought withit an activities at,the state level and in thc of his property might impose on other increased need for tower sites on which federal courts), and offers an approach by members of the community, transmitters can be placed. PCS is located which municipalities can Optimize their at a higher frequency range, requiring role in thc process of locating sites for Challenges to Local Zoning towers that are closer together than the telecommunication towers. Municipalities' longstanding and broad older cellular towers were. The improved .. power to oversee land use has been called technology is also likely to necessitate Traditions of Local Control into question ns legislative enactments more towers through increased custom- For the better pan of a 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 ~itters will have mental function in our country. The first wireless phone service. One example is to be situated about a mile apart. comprehemive zoning ordinance in the Congress's 1996 passage of the Telecom- The typical municipal zoning ordi- Unit~l States was adopted in New York munications Act, which opens doors for a ' nance requires a PCS provider to obtain City in ! 916, and other municipalities federal agency to overrule local Officials 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 thc proposed tower 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 pre- such structures; receipt of a variance v. Ambler P, ealty Co., the US Supreme erupt local officials' decisions on thc usually requires prcofofhardship owing Court rejected arguments that zoning placement, construction, and modifies- to the topography of other nearby sites. laws were an uncomtitutional depriva- tion of personal wireless service facili- 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 ire- locus; the permit indicates that the local- the concept of zoning. The Court's deci- quency emissions when concerns arise ity has found ~he proposed tower not to sion, involving a land owner in suburban over possible environmental impacts, be unreasonably detrimental. Ofcourse, under the 1996 Act the FCC can second- Inside This Issue... gue,s a local decision to deny approval. The i~CC seems willing to require a~,~ The Value of~oning 4 tance of towers that loco] officials r~joot, ~ ImPa~s ofl~o,~paable L~nd Uses Z though the evidence to date is limited. The Greatest RealEstnte Movies of~ill T/me 9 The federal judioimy also has shown a willingness to substitute its vi~'s for Deals Illustrated IZ the wishes of local rogulator~, although it IV-lO8