November 29, 2005
SITING TELECOMMUNICATIONS ANTENNAS
By: Kevin E. McCarthy, Principal Analyst
You asked for (1) a description of the role municipalities play in siting telecommunications antennas and the factors they can consider and (2) options for a constituent who seeks to reverse a municipality's zoning approval of an antenna location and the implications of these options.
Municipalities have jurisdiction over siting telecommunications antennas, other than those located on towers that are in the state Siting Council's jurisdiction. In adopting zoning regulations as they apply to antennas, municipalities can consider a wide range of factors including public health, safety, and property values. However, federal law restricts the amount of discretion municipalities and states have in regulating wireless facilities, including antennas. Among other things, states and municipalities cannot “zone out” such facilities and are restricted in regulating them based on their emissions.
Your constituent can appeal a zoning commission's approval of an antenna to the zoning board of appeals and the courts. She could also seek state legislation restricting where antennas can be located. However, if such legislation applied retroactively, it could raise several issues including the possibility of being ruled an unconstitutional taking. Even if it only applied prospectively, it might be challenged as violating federal law.
MUNICIPAL ROLE IN SITING ANTENNAS
Antennas on Towers
Under CGS § 16-50g et seq., the Siting Council has exclusive jurisdiction over towers, and the antennas on them, that are owned or operated by the state, public utilities, and telecommunications companies. It also has jurisdiction over towers, and the antennas on them, used to provide cellular service. As described in OLR report 2000-R-1185, the federal courts have held that cellular services, as used in state law, include personal communications services (PCS).
A council certificate is needed to build or modify such towers. The municipality where the tower is proposed to be built is entitled to notice of the certificate application and can participate in the case as a party. The council must hold a hearing in the municipality. The law also provides several measures to encourage the sharing of existing towers. The council must consider the need for the facility and its probable environmental impacts, including its impact on public health and safety and the electromagnetic fields (EMF) it produces.
Local land use agencies, such as zoning commissions, have jurisdiction over other antennas, such as those located on buildings or in church steeples. These agencies also have jurisdiction over towers, and the antennas on them, that do not fall within the Siting Council's jurisdiction, such as include television and radio towers.
Municipalities have broad discretion in adopting their zoning regulations. Under CGS § 8-2, zoning regulations may adopt regulations to protect public health and safety and property values, among other things. Under the regulations, a municipality may allow antennas as of right, only with a special permit, or only with a variance (which require the approval of the zoning board of appeals (ZBA)). Depending on the facts in the case, an antenna may need other types of local approval, such as a building permit.
However, as described in OLR report 98-R-0038, federal law restricts how states and municipalities can regulate the siting of wireless facilities, including the towers and antennas used to provide PCS. The law prohibits state or local regulations from (1) having the effect of prohibiting the provision of wireless services or (2) unreasonably discriminating among providers of functionally equivalent services. The law bars states and municipalities from basing the regulation of a facility on the basis of the environmental effects of its radiofrequency emissions (a type of EMF) if the facility complies with Federal Communications Commission regulations on the subject. It authorized anyone adversely affected by a government's decision regarding such emissions to appeal to the commission. More generally, anyone adversely affected by a government's action or inaction can appeal to state or federal court.
In addition, a denial of a proposed site must be based on evidence in the record. In Cellco Partnership v. Town Planning & Zoning Comm'n of Town of Farmington, 3 F. Supp. 2d 178 (D. Conn. l998), the court overturned the town's denial of an antenna located in a steeple. It found that the town's letter of denial, indicating that height and scale of proposed antenna housing would be out of character with the neighborhood, did not meet the act's requirements because the letter failed to detail the rationale for its conclusions, and the town did not tie conclusions to evidence of record.
If the constituent is aggrieved by a zoning commission's decision, she can appeal to the ZBA. In most cases, a person needs to demonstrate that she was harmed by the decision, but this requirement does not apply to a person that owns land that abuts the affected property, or is within 100 feet of this property. The appeal to the ZBA must be taken within 30 days of the zoning commission's decision. If the constituent is aggrieved by the ZBA's decision (including an initial decision on granting a variance) she can appeal to the courts.
Subject to the federal law discussed above, a municipality can change how its zoning regulations affect telecommunications antennas. However, under CGS § 8-2, such changes would not affect the zoning commission's prior decision.
The constituent may also seek to have the municipality discourage the erection of the antenna. For example, the municipality could inform the owner of the property where the antenna would be located that his property taxes will increase to reflect the value of the antenna. OLR report 2001-R-0619 discusses the tax liability of a church that rents out part of its steeple for a PCS antenna.
Finally, the constituent could seek relief from the legislature, which could take the form of (1) barring antennas that meet certain criteria, even if they have been approved by a zoning commission; (2) giving the Siting Council jurisdiction over all antennas, and applying this requirement to antennas that have been approved by municipalities but not yet erected; and (3) establishing conditions that must be met before an approved antenna can go into service. There is some precedent for such measures. For example, PA 04-248, in effect, reversed a local zoning commission's approval of a shopping center. The legislature also imposed a moratorium on the Department of Environmental Protection's issuance of operating permits for asphalt plants, even if the plant had a construction permit.
However, these options raise several legal and policy issues. Depending on the facts of the case, legislation that applies retroactively and bars a development that has already been approved might constitute an uncompensated taking in violation of the state and federal constitutions. Such legislation might also be subject to challenge under the federal law, particularly if they banned antennas in large areas. Finally, any legislation establishing state land use controls might be controversial, given the state's history of home rule. That history favors giving municipalities wide discretion about how to plan and develop their communities.