Drawing the line on cell towers

Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 1 | Posted Jan. 27, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News

Located in Southern California, Palos Verdes Estates is a planned community, about a quarter of which is devoted to public rights-of-way, both for aesthetics and transportation. Telecommunications company Sprint applied to the city for permission to build wireless telecommunications facilities in the city's public rights-of-way to replace its existing wireless infrastructure.

The city granted eight of Sprint's permits, and denied the remaining two -- one for a facility to be constructed in a narrow street, and the other for a facility to be built in one of the main entrance thoroughfares to the city.

In rejecting Sprint's applications, the city works director cited an ordinance authorizing wireless telecommunication facilities permits to be denied on grounds of adverse aesthetic impact. Sprint appealed the city works director's decision to the City Planning Commission and the City Council, both of whom affirmed the city works director's refusal to grant the two permits.

Sprint also appealed the city's decision to the federal district court, which found in Sprint's favor, ruling that the city's decision violated the Telecommunications Act of 1996 ("TCA") in that it was not supported by substantial evidence and prevented Sprint from closing a significant gap in its network's coverage, thus unlawfully prohibiting the provision of telecommunications service.

The city appealed, and the Court of Appeals reversed the lower court's ruling, finding in favor of the city. The TCA imposes a substantial evidence standard on all city denials of requests to construct telecommunications facilities. Under this standard, the appellate court explained, "this court may not overturn the (city's) decision ... if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence."

The local ordinance authorized denial of Sprint's permit on aesthetic grounds and, the court found, the aesthetic consideration did not violate the California Public Utilities Commission, as Sprint had argued. Additionally, the city had considered substantial evidence, including propagation maps, workups, public comment and Sprint's testimony, in coming to its finding that the rejected facilities would have an adverse impact on the city's aesthetics.

As a result, the city's rejection of Sprint's applications met the TCA's substantial evidence standard.

Finally, the TCA provides that a city's denial of a telecommunications permit application "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." Sprint, the court found, did not show a significant gap in its coverage as a matter of law.

As such, the city's denial of Sprint's applications did not violate the TCA, and the lower court's ruling was reversed.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

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1. Jim said... on Aug 19, 2010 at 10:30AM

“I'm not sure whether cell towers are beautiful or not, but because of their impact on health I have canceled all my real estate purchases that were situated within a mile of any cell tower. There are a ot of cell towers! And not much land remaining that is remote to cell towers anymore.... There goes my freeze on spending, because of the impact of cell towers I will not send much on real estate. I decided to invest in developing countries where cell towers have not reached yet. There goes all the money out of the country.”

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