Bridgewater Place Post Office Box 352
Grand Rapids, Michigan 49501-0352
Telephone 616 / 336-6000 Fax 616 / 336-7000
GRAND RAPIDS LANSING KALAMAZOO GRAND HAVEN MILWAUKEE
Mr. Harvey Cargill
February 28, 2003
Page 1
JAMES N. DeBoer, JR.
HILARY F. SNELL
KENT J. VANA
DONALD L. JOHNSON
DANIEL C. MOLHOEK
TIMOTHY J. CURTIN
DIRK HOFFIUS
THOMAS J. BARNES
ROBERT D. KULLGREN
RICHARD A. KAY
LARRY J. TITLEY
FREDRIC A. SYTSMA
PHILIP A. GRASHOFF, JR.
JOHN W. ALLEN
JACK D. SAGE
JEFFREY L. SCHAD
JOHN W. PESTLE
FRANK G. DUNTEN, P.C.
NYAL D. DEEMS
RICHARD A. HOOKER
RANDALL W. KRAKER
PETER A. SMIT
MARILYN A. LANKFER
G. MARK McAleenan, JR.
THOMAS L. LOCKHART
BRUCE GOODMAN
JOSEPH J. VOGAN
ERIC J. SCHNEIDEWIND
LAWRENCE J. MURPHY
TERESA S. DECKER
LAWRENCE P. BURNS
MATTHEW ZIMMERMAN
WILLIAM E. ROHN
JOHN PATRICK WHITE
CHARLES M. DENTON
JEFFREY D. SMITH
MARK L. COLLINS
JONATHAN W. ANDERSON
CARL OOSTERHOUSE, P.C.
WILLIAM J. LAWRENCE III
SUSAN M. WYNGAARDEN
KAPLIN S. JONES, P.C.
STEPHEN P. AFENDOULIS
DAVID E. KHOREY
MICHAEL G. WOOLDRIDGE
TIMOTHY J. TORNGA
PERRIN RYNDERS
MARK S. ALLARD
TIMOTHY E. EAGLE
DAVID A. RHEM
DONALD P. LAWLESS
MICHAEL S. McElwee
JACQUELINE D. SCOTT
N. STEVENSON JENNETTE III
PETER J. LIVINGSTON
DAVID E. PRESTON
JEFFREY W. BESWICK
ELIZABETH JOY FOSSEL
JOAN SCHLEEF
SCOTT A. HUIZENGA
KATHLEEN P. MAINE
JEFFREY J. FRASER
RICHARD D. FRIES
JAMES R. STADLER
RICHARD R. SYMONS
RONALD G. DE WAARD
ANDREW J. KOK
PATRICK A. MILES, JR.
ERIC J. GUERIN
STEVEN J. MORREN
KEVIN ABRAHAM RYNBRANDT
THOMAS G. KYROS, P.C.
ALFRED L. SCHUBKEGEL, JR.
PAMELA J. TYLER
JON M. BYLSMA
JOSEPH B. LEVAN
DALE R. RIETBERG
MARK M. DAVIS
HARVEY KONING
ANTHONY R. COMDEN
BEVERLY HOLADAY
ERIC C. FLEETHAM
PAMELA EMENHEISER
CELESTE R. GILL
RICHARD A. SAMDAL
DEBORAH I. ONDERSMA
SCOTT D. ALFREE
ANNETTE D. NICKEL
STEPHANIE SETTERINGTON
BRYAN R. WALTERS
DEAN F. REISNER
PAUL M. MORGAN
KIMBERLY A. CLARKE
CHARLES N. ASH, JR.
RACHEL L. URQUHART
MARK E. HILLS
JOSHUA M. WALLISH
JEFFREY C. GIFFORD
CHRISTOPHER M. BROWN
PETER G. ROTH
MARY KAY SHAVER
JUDE W. PEREIRA
KIMBERLY BABER
ADAM J. BRODY
KURT M. GRAHAM
STEVE S. KLUTING
CYNTHIA W. ROGOWSKI
CHRISTOPHER J. DUBA
DARREN MALEK
MATTHEW B. EUGSTER
DAVID K. PORTER
KRISTEN M. BEUTLER
AMY HENRY CAMPBELL
KEVIN R. SCHAAF
MICHAEL WILLIS
TIMOTHY J. LUNDGREN
AARON M. PHELPS
BRETT A. RENDEIRO
JEFFREY J. CANFIELD
BRITTAN S. STRANGWAYS
RANDALL J. GROENDYK
PAUL J. GREENWALD
MARY E. MacLeod
AARON LEAL
TERRI L. SHAPIRO
Counsel
TERRANCE R. BACON
MICHAEL W. DONOVAN
ELIZABETH JAMIESON
JANICE KITTEL MANN
KEVIN O’MALLEY
RICHARD D. RATHBURN
JOLENE L. SHELLMAN
ELIZABETH WELLS SKAGGS
DONALD SNIDE
JENNIFER J. STOCKER
PETER VISSERMAN
FRED M. WOODRUFF
Of Counsel
EUGENE ALKEMA
PETER ARMSTRONG
BRUCE A. BARNHART
GORDON B. BOOZER
JOHN C. CARLYLE
JON F. DeWitt
R. STUART HOFFIUS
J. TERRY MORAN
H. EDWARD PAUL
CARL E. VER BEEK
GRAND RAPIDS LANSING KALAMAZOO GRAND HAVEN MILWAUKEE
Mr. Harvey Cargill
February 28, 2003
Page 1
February 28, 2003
Mr. Harvey Cargill
City Attorney
City of College Station
P.O. Box 9960
College Station, TX 77840
Re:Wireless Telecommunications Facilities Zoning Amendments
Dear Harvey:
Per your request we have reviewed the wireless telecommunications facilities zoning amendments set forth in the changes to Section 8.20 of Chapter 12 of the City Code which you have provided to us. You indicated that the major change is set forth in Section 8.20.D.4 where the height limitation is reduced to 100 feet (from the current 150 feet) for a cellular tower unless a variance is obtained. The section as changed would read as follows:
In no case shall a proposed transmission tower exceed 100 feet within the city limits, except where a height variance is granted by the Zoning Board of Adjustments to allow a tower or antenna that demonstrates a hardship that can only be remedied by locating on a proposed site within the city limits.
We have reviewed the proposed ordinance for compliance with Section 704 of the Federal Telecommunications Act of 1996 ("Section 704", attached as Appendix A to this letter) and Federal Communications Commission ("FCC") regulations.
Summary: The ordinance needs a minor change to make sure that it does not violate an FCC rule generally exempting traditional TV antennas (and other similar antennas) from many aspects of local zoning and permitting. This change is set forth in Appendix B to this letter. Appendix B also contains several suggested changes to clarify one or two matters (such as in the purposes section of Section 8.20A) to make it more likely to survive a challenge, should one ever occur.
We believe that the ordinance complies with Section 704 of the Federal Telecommunications Act of 1996. We note that the courts have rejected facial challenges to cellular tower ordinances. Instead the courts have considered challenges questioning an ordinance's compliance with Federal law only on a case by case basis. In this regard the courts have generally held that the number and height of towers and the tradeoff between the two under Federal law is reserved for municipalities to decide. We would also note that in the very sentence containing the new 100-foot height limit an exception is provided for a variance granted by the Zoning Board of Adjustments in cases of hardship. This exception leaves a court effectively unable to address a facial challenge as there is no way to determine whether the Zoning Board will grant the variance in a given instance without an application first being made and denied.
Although there are no Fifth Circuit Court of Appeals cases dealing squarely with the issues in question, the law from the other Circuit Courts of Appeals is very favorable to the City on the points in question. It is thus our opinion that the ordinance does not "have the effect of prohibiting" cellular service or otherwise violate Section 704 under the existing case law interpreting that Section.
A more detailed discussion follows.
Background: We have reviewed the proposed ordinance change against Section 704 of the Federal Telecommunications Act of 1996 ["TCA"], Pub. L. No. 104-104, 110 Stat. 56 (1996) (only partially codified at 47 U.S.C.A. § 332 (c) (7)) which generally preserves local zoning and land use authority for cellular towers. The principles it sets forth largely repeat standard provisions of zoning law. Section 704(c)(7)(A) declares that "Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." Among the limitations on the authority preserved in subsection (A) that are detailed in subsection (B), is the following: "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof – . . .shall not prohibit or have the effect of prohibiting the provision of personal wireless services." § 704(c)(7)(B)(i). You indicate that some cellular providers have told the City that the ordinance change would make cellular towers too costly, and might even put them out of business. Such challenges have typically been brought under Section 704(c)(7)(B)(i).
Facial Challenges Rejected: The courts have rejected facial challenges to ordinances where providers have argued that an ordinance's terms "have the effect of prohibiting the provision of personal wireless services" in violation of Section 704(c)(7)(B)(i)(II). Instead, courts have recognized that municipalities need to have the opportunity to apply the ordinance in question before a determination can be made about that ordinance's effect. That is particularly the case here where the very sentence containing the new, lowered height restriction also contains a hardship exception that could be invoked in any given instance.
In a case very similar to yours the Fourth Circuit Court of Appeals ruled that a facial challenge to a cellular tower zoning ordinance as "effectively prohibiting the provision of wireless service" in violation of Section 704 where the applicant had made no attempt to comply with the ordinance was not ripe for decision and must be dismissed. Cellco Partnership d/b/a/ Bell Atlantic Mobile v. Russell, 187 F. 3d 628 (4th Cir. 1999) (disposition only), unpublished opinion appears at 1999 U.S. App. LEXIS 17977 at 10-11, 1999 WL 556444 at 1 ("Bell Atlantic Mobile"). District Courts have applied similar reasoning. See, Bell Atlantic Mobile, Inc. v. Zoning Board of Butler Township, 138 F.Supp. 2d 668, 672-675 (W.D. Pa. 2001) ("when or if [Plaintiff's] claim becomes ripe through, for example, a final denial of a permit request, it is clear that [Plaintiff] would have a cause of action under the TCA") andAPT Tampa/Orlando, Inc. v. Orange County, 1997 U.S. Dist. Lexis 22096, *14 (M.D. Fla. 1997) ("[B]ecause Plaintiffs did not apply for a tower permit under the amended tower ordinance, no adverse action has occurred. Therefore, Plaintiff's claims are not yet ripe.").
In Bell Atlantic Mobile the Fourth Circuit refused to hear a cellular provider's claims that an ordinance on its face made towers so costly as to effectively prohibit service, ruling that "There is no reason to presuppose that any section of the new ordinance will be declared invalid. Congress specifically reaffirmed the authority of state and local governments to regulate the 'placement, construction and modification of personal wireless services.'" 1999 U.S. App. LEXIS 17977 at 9-10, citing 47 USC §332(c)(7)(A). The Court said there was no major hardship to Bell Atlantic Mobile in having to seek to obtain zoning approval and the defendant county would be harmed if the Court ruled on the merits of the ordinance before it was applied, because that would "deprive the county of the opportunity to regulate the construction and placement of towers within its borders in a manner consistent with the [Telecommunications Act]." 1999 U.S. App. LEXIS 17977 at 15, 1999 WL 556444 at 5.
General Bans/Heavy Burden: The Fourth Circuit has held that Section 704's requirement that municipalities not "prohibit or have the effect of prohibiting" conventional cellular/PCS service only applies to "'blanket prohibitions' and 'general bans or policies,' not to individual zoning decisions." AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 428 (4th Cir. 1998) ("Virginia Beach") (emphasis added). The Fourth Circuit confirmed this approach in 360" Communications Company of Charlottesville v. Board of Supervisors of Albemarle County, 211 F.3d 79, 86 (4th Cir. 2000) ("Albemarle County"). There, the court affirmed that "case-by-case denials of permits for particular sites cannot, without more, be construed as a denial of wireless services" and that "there must be something more, taken from the circumstances of the particular application or from the procedure for processing the application, that produces the 'effect' of prohibiting wireless services." Id.
The First, Second, and Third Circuits have not gone as far as the Fourth Circuit in this regard. A claim by municipalities that Section 704 only prohibits general bans (moratoria) on wireless facilities was rejected by those Courts of Appeal in Town of Amherst v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9 (1st Cir. 1999) ("Amherst") and Sprint Spectrum v. Willoth, 176 F.3d 630, 644 (2d Cir. 1999) ("Willoth"). In rejecting this claim, the First Circuit in Amherst was concerned about the situation where a municipal zoning authority sets out criteria that could never be met: "If the criteria or their administration effectively preclude towers no matter what the carrier does, they may amount to a ban 'in effect' even though substantial evidence will almost certainly exist for denial" Amherst, 173 F.3d at 14.
While agreeing with the Amherst court's holding, the Second Circuit nevertheless interpreted the statutory language in § 704(c)(7)(B)(i)(II) as requiring that "local governments must allow service providers to fill gaps in the ability of wireless telephones to have access to land-lines." Willoth, 176 F.3d at 643. The Willoth court held that this requirement meant that local governments are precluded from "denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land-lines." Id. See alsoAPT Pittsburgh v. Penn Township, 196 F.3d 469, 479-480 (3rd Cir. 1999) (finding Willoth to contain "the most thoughtful discussion" of the requirement).
The Fourth Circuit has explicitly criticized the Willoth approach as shifting the burden of production to the local government to explain its reason for denying such an application. SeeAlbermarle County, 211 F.3d at 87. This shift in burden results from "read[ing] too much into the Act," according to the Fourth Circuit. Id. However, even the Willoth approach requires the statute to be applied before it can be determined whether an approach is the "least intrusive" or not.
While there is no Fifth Circuit Court of Appeals case on this "blanket modifications/general bans" issue, one District Court case in the Fifth Circuit has cited the Fourth Circuit's Virginia Beach language in failing to find a prohibition of cellular services:
The denial of a single zoning application cannot, by itself, amount to a prohibition of cellular services. Subsection (B)(i) only applies to "blanket prohibitions," not individual zoning decisions. [Citing Virginia Beach at 428, other citation omitted] A contrary reading "would effectively nullify local authority by mandating approval of all (or nearly all)applications," disrupting the Act's overall scheme preserving local zoning authority. [Citing id.]
Bellsouth Mobility, Inc. v. The Parish of Plaquemines, 40 F.Supp. 2d 372, 381 (E.D. La. 1999). It thus seems that at least one Fifth Circuit District Court is willing to follow the Fourth Circuit lead.
Even if the Fifth Circuit follows the more restrictive interpretation favored by the Second and Third Districts, providers would not be able to challenge the validity of the City's ordinance outside of the denial of a permit application and the case-by-case reasoning involved with that process. It is therefore important to note that the claims just discussed arose in the context of actual denials of zoning approval, not facial challenges to a zoning ordinance with a hardship exception. And even in these cases of actual denial, the Amherst court held that the burden for the carrier – in the context of a claim that a single denial is alleged to have the "effect" of prohibiting the provision of personal wireless services – is a "heavy one." 173 F.3d at 14. The carrier must show "from language or circumstances not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try." Id. Similarly, the Third Circuit declared that "the provider must bring additional proof to the court to demonstrate that the denial is representative of a broader policy or circumstance that precludes the provision of wireless service." APT Pittsburgh, 196 F.3d at 479.
Effectively Prohibit—Gaps in Service: We would also note that there should be over five cellular and PCS-type providers licensed by the FCC to serve your City. There is no indication that all of them object that the proposed ordinance will prohibit them from providing service.
The lack of objection by all providers is important because in cases where providers have claimed that a zoning ordinance created a gap in coverage, the courts have held there is no violation of Section 704 as long as at least one provider provides service in the claimed "gap." See, e.g. the Third Circuit's statement that "the provider's showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider." APT Pittsburgh v. Penn Township, 196 F.3d 469, 480 (3d Cir. 1999) ("Penn Township"). See also, Omnipoint Communications Enterprises v. Newtown Township, 219 F.3d 240, 244 (3d. Cir. 2000) cert. denied 531 U. S. 985, 148 L. Ed. 2d 446, 121 S. Ct. 441 ("Newtown Township"). Thus if some providers have had the foresight or wisdom to design and install their facilities such that they comply with the new height restriction without creating gaps in coverage, there is no "effective prohibition of service" in violation of Section 704. For this reason, the City's ability to place restrictions on towers expands as the number of towers already serving the area increases:
[O]nce an area is sufficiently serviced by a wireless service provider, the right to deny applications becomes broader: State and local governments may deny subsequent applications without thereby violating subsection B(1)(II). The right to deny applications will still be tempered by subsection B(i)(I), which prohibits unreasonable discrimination. However, it is not unreasonably discriminatory to deny a subsequent application for a cell site that is substantially more intrusive than existing cell sites by virtue of its structure, placement or cumulative impact."
Willoth 176 F.3d at 643.
Number, Height of Towers Reserved to Cities: More generally, the courts have held that the number and height of towers, and the tradeoff between the two (fewer taller towers or more shorter towers), is the type of decision expressly reserved for municipalities under Section 704. For instance, the First Circuit has observed that:
Ultimately, we are in the realm of trade-offs: on one side are the opportunity for the carrier to save costs, pay more to the town, and reduce the number of towers; on the other are more costs, more towers, but possibly less offensive sites and somewhat shorter towers. . . . [S]uch choices are just what Congress has reserved to the town.
Amherst, 173 F.3d at 15. While, as noted above, the Fifth Circuit has not addressed this issue, the language of the Amherst court just quoted was repeated with approval by a District Court in Louisiana, after noting that "Land use decisions are basically the business of state and local governments." Sprint Spectrum L.P. v. The Parish of Plaquemines, 2003 U.S. Dist. Lexis 1210, *61 (E.D. La. 2003) (citations omitted). In dismissing the objections of a provider to a newly enacted ordinance that, among other things, placed limits on the height of towers, the Fourth Circuit noted the following:
[N]othing in the TCA expressly bars any of the provisions of the ordinance. [Plaintiff] seems to admit as much, as it does not (and cannot) argue that the county is expressly prohibited from enacting the ordinance or from placing restrictions on the height or other aspects of the towers.
Bell Atlantic Mobile, 1999 U.S. App. Lexis 17977 at 12. The Circuits that have ruled on this issue, then, appear to be in agreement that decisions about the appropriate heights and siting of towers are given to municipalities under the Telecommunications Act.
Conclusion: We appreciate the opportunity to be of assistance to the City on this matter. Should you have further questions, please let me know.
Very truly yours,
VARNUM RIDDERING SCHMIDT & HOWLETTLLP