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Tower Zoning Can't Be Prohibited Everywhere

communications tower subject to zoning

Broadcast antenna or cell tower zoning is more complex than you might think. As the broadcasting industry developed, in the U.S. many primarily residential suburbs had height restrictions on all buildings that sometimes were as low as 35 feet for any building, at least outside of industrial zoning. So typically would-be tower owners had to seek a zoning change.

Eventually in the U.S., the FCC (Federal Communications Commission) became concerned about the restrictiveness of local zoning, and began claiming a federal interest in the capability to erect communications towers of all types. They stated they would preempt local zoning to the extent necessary to uphold a federal need.

In 1996 the Federal Communications Act strengthened the FCC's ability to preempt or override local zoning. It gave a complete preemption to the federal government with regard to regulating RF radiation exposure standards. From the local perspective, one of the frustrations is that the FCC refuses to codify their ideas on what is considered acceptable.

So antenna and tower zoning remain to be issues decided by the FCC and local authorities on a case-by-case basis. Different media have different technologies (cell phone versus digital television, for example).

This is why we call this period an awkward adolescence. Since there are so many variables, and thus far the federal government doesn't want to write down all the specifics about when it will preempt local rights, we don't quite know how both the technology and regulation of communications towers will grow into adulthood.

Advice to Municipalities on Cell Tower Zoning

1. You can't outright prohibit all antennas and towers. You must find some place for them to be. That's not legal advice. I'm just sayin'...

2. You can prohibit other land uses within a tower's "fall zone," which would be equal to some slightly higher number of feet from the base than the height of the tower. Some tower owners now are arguing that their pole is designed so that it bends in half and rather than the entire thing falling, so they want the fall zone to be considered a lesser radius.

Also be aware that a tall tower requires "guy wires" to anchor it to the ground, so for that additional reason, tower zoning will require more land than you might think.

3. You should highly encourage the practice of "co-location," which means placing technology for more than one communications medium on the same tower.

In the end, your town or city probably can't require co-location and win in court, but you can make applicants jump through so many hoops showing that they have tried to co-locate with other firms that they'll give up or co-locate in most instances.

4. Cell phone technology at least has been able to develop some styles that are rather aesthetically pleasing. They can be concealed on other poles or in trees in parks, and in church steeples. Or they might simply resemble trees. Interesting, huh?

5. The 1996 Communications Act also prevented condo CC&Rs from restricting against small satellite dishes and all zoning regulations from prohibiting television antennas sufficient for reception.

6. In addition to the FCC, tower zoning or especially a series of towers might require an environmental impact statement under NEPA (National Environmental Protection Act), or a Certificate of No Hazard from the FAA (Federal Aviation Administration).

7. It's certainly within your rights as a municipality to require fencing and posting of appropriate warning signs. Those can be easily related to health and safety. Your aesthetic regulations, like all aesthetic regulations, would be harder to defend in court.

8. You have the right to require very detailed engineering plans and to require quite specific, yet understandable, explanations of the functioning and dangers of a specific instance of tower zoning. Don't be bullied by a communications lawyer; insist on a layperson-oriented explanation.

This issue has quite a bit in common with wind turbine zoning, about which we have written a specific page.

If you're coming to this subject with a need to learn more about cell phone tower location potential for a particular property, whether publicly owner or private, check out:

Cell Phone Towers
AirWave Sites, Your Rooftop Antenna and Cell Tower Leasing Partners.

Here are some jumping off points to:

> > Tower Zoning

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