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By Richard D. Vetstein, ESQ
With the proliferation of cellular/wireless service and coverage,
Massachusetts town and cities have been bombarded in the last 10 years
with applications for zoning relief for new cell towers and related
equipment. These applications - especially in residential neighborhoods -
raise the ire of local residents who don't want cell towers in their
backyards. Homeowners worry about the effect of electromagnetic
frequencies on their children, aesthetics, and the impact to their
Local zoning boards' ability to regulate cellular/wireless
facilities, however, is significantly limited by the federal
Telecommunications Act of 1996 (TCA) which provides that local zoning
decisions cannot unreasonably discriminate among providers, have the
effect of prohibiting service, or regulate on the basis of the effects
of radio frequency emissions. The Telecommunications Act has spawned a
decade's worth of litigation in Massachusetts, with wireless servicers'
slugging percentage in the David Ortiz range.
The most recent victory by the wireless industry is T-Mobile Northeast LLC v. City of Lawrence.
T-Mobile sought to fill a coverage gap beset by those dreaded dropped
calls in Lawrence's Prospect Hill neighborhood by building a six foot
high antennae hidden in a "stealth chimney" on top of a condominium
building in a residential zone. Lawrence's zoning ordinance bars
wireless equipment in residential zones except on city-owned land, and
requires a 1,000-foot setback from any residential lot. T-Mobile had
previously asked the city to make municipal land available for its
facility, but got no response. Having no other option, T-Mobile
applied for the necessary zoning approvals and variances from the
ownership and setback requirements.
Lawrence's zoning board of appeals (ZBA) denied
T-Mobile's application, stating that it could not find sufficient facts
to approve. (In other words, the majority of the board didn't want the
cell antennae at that location). At the hearing, some members of the ZBA
expressed their views that the coverage gap was not real, ignoring
T-Mobile's expert, and that the antenna should go on municipal land so
that the city could benefit financially. T-Mobile appealed the denial.
The TCA provides for expedited review in federal court, another major
advantage for wireless servicers which can by-pass often lengthy state
superior and land court appeals. In federal court Judge Gorton pretty
much eviscerated the board's decision, as "rote" and merely parroting
the relevant factors. The judge also characterized as "too little, too
late" Lawrence Mayor William Lantigua's plan to open up alternative
municipally-owned sites for public bidding. The judge ordered that the
permits be granted.
The lesson in this case for town zoning boards is pretty simple. If
you are going to deny a cell tower permit application, think twice and
very hard at that. Perhaps consult town counsel before issuing a final
decision, before causing your town to spend thousands on taxpayer funded
legal fees with no reasonable chance of success.
Residents faced with cell towers and antennae in their neighborhoods need the assistance of an experienced Massachusetts zoning attorney who
can navigate the complex TCA regulatory maze and utilize competing
wireless coverage expert testimony. Upholding a denial of a cell tower
appeal is very complex and challenging, but some neighborhood groups have been successful, despite the unlevel playing field of the Telecommunications Act. Check out Plymouth's StopCenterHillTower.org.
View more from The Massachusetts Real Estate Law Blog
Mr. Vetstein has represented clients in hundreds of lawsuits and disputes involving business, real estate, construction, condominium, zoning, environmental, banking and financial services, employment, and personal injury law.
In real estate matters, Mr. Vetstein handles residential and commercial transactions and closings. In land use, zoning, and licensing matters, Mr. Vetstein offers his clients an inside perspective as a former board member of the Sudbury Zoning Board of Appeals. Mr. Vetstein has an active real estate litigation practice, and was a former outside claims counsel for a national title company.
Drawing on his own business degree and experience, Mr. Vetstein assists his business clients with new business start ups, acquisitions, sales, contract, employment issues, trademarks, and succession planning. Mr. Vetstein also litigates, arbitrates and mediates a wide variety of commercial disputes.
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