Supreme Court Wireless Decision Limits Municipal Zoning Actions
Other discussions during the meeting included one in which the council members decided that the artificial tree that T-Mobile was planning to use to hide the cell tower wasn't attractive enough. This, too, is not an adequate reason for turning down the tower. Many observers indicate that once T-Mobile gets to challenge the denial, the use of reasons that aren't permissible will make the city's arguments unlikely to succeed. The use of such an artificial tree was required by the city's zoning code as one way to disguise the fact that it was a cell tower. "T-Mobile is leading the charge on fairness and transparency in providing mobile wireless services to consumers," a T-Mobile spokesperson told eWEEK in an email. "Mobile customers demand better voice and data services—and now local governments must explain their reasons when they deny a permit application to build or modify a cell site and provide those reasons to the applicant contemporaneously with the denial decision." The court decision requiring local authorities to provide substantial evidence in writing in a timely manner gives wireless companies a significant tool in fighting restrictions on wireless towers. Two of the most common complaints by opponents to such towers are that they're afraid of the radio waves from the towers, and that they think they're ugly and, because of that, will detract from real estate values."It's a consequential decision," Palmore said. "It will apply to countless zoning authorities." The decision will also free up large numbers of applications for wireless infrastructure that are currently pending.
While opponents can still make those arguments, zoning authorities can't use such reasons in denying approval. However, there are times when denial is valid, and local boards can act on those. For example, a zoning board can issue a denial if a wireless company wants to put a tower in an historic area. Likewise, a board can issue a denial for safety reasons, as long as the safety reasons are backed by substantial evidence although general concerns about health risks from radio waves won't make the cut.