Even though collocation-by-right legislation has been passed by Congress, collocations are still taking their knocks. The Fairfax, Va., County Board of Supervisors’ denial of the T-Mobile application to attach wireless facilities to an existing wireless structure did not violate the Telecommunications Act of 1996, according to the Fourth Circuit U.S. Court of Appeals.
Speakers on the zoning panel at the AGL Regional Conference in Philadelphia, last week, weighed in on the court’s decision to uphold the denial of the collocation, which would have increased the height of an existing utility pole.
“The court really took a hard line…it’s tough in the Fourth Circuit [to appeal a zoning decision],” said Gregory Rapisarda of Saul Ewing, who moderated the panel.
In 2009, T-Mobile filed an application to increase the height of a utility pole from 100 feet to 110 feet to attach three antennas.
The local planning commission staff reviewed the collocation and issued a report finding that T-Mobile’s proposed facility satisfied the criteria of location and character, as specified in the County’s comprehensive plan. However, after a public hearing in November 2009, the planning commission reversed its opinion and denied T-Mobile’s application because it would be “significant and adverse” to the local character of the area.
“In my mind it is just ridiculous,” said Sean Hughes of the Law Offices of Sean Hughes, who was also on the zoning panel. “They denied a ten-foot extension of a power pole. Stepping back from the legal aspects, the reason they denied it was because it is in McLean, Va., which is a very affluent suburb. I was part of the law firm that worked on this early on. If you looked at the photo simulations [of the completed collocation] there was no reason to deny it.”
T-Mobile appealed the Board’s denial, saying that it prohibited the provision of wireless services. T-Mobile also claimed it had been discrimination against, because Verizon Wireless and AT&T have been permitted to construct expanded facilities on the pole, with a ten-foot extension and 12 antennas and nine panel antennas, respectively.
Hughes added that it will be interesting to see if the collocation-by-right-legislation will be applied to collocations such as this one where the structure has already been extended 10 percent and a carrier proposes an additional ten-percent increase in height.
Even though T-Mobile showed a gap in coverage, it failed to prove a reasonable alternative for the site was not available, according to the court. The court also said the local municipality may treat a proposed telecom facility differently from another, existing facility on the same pole, based on aesthetics of the proposal. Accordingly, the court found that the proposed pole size and antenna configuration would materially change the look of the pole.
“It is a disappointing case,” said George Asimos of Saul Ewing, and also a panel member. “It means the Fourth Circuit is persisting with a few theories about interpreting the Telecom Act that are relatively unhelpful to the tower industry. In the Third Circuit they require you have to prove the least intrusive means [of providing coverage]. You know what you are shooting for. The Fourth Circuit turns this requirement on its ear. Maybe the least intrusive site isn’t the one the municipality wants? That leaves you without a clear direction of what the court will support [in terms of cell site development appeals].”
The best courts provide a clear understanding of how they interpret the Telecom Act of 1996, which gives the cell site developer a better idea of whether they will prevail by challenging a zoning rejection in court, Asimos added.