Cell towers are a
critically important input for next-generation wireless broadband services.
With wireless Internet use projected to surpass
wireline Internet use by 2015, tens of thousands of new towers and distributed
antenna systems will need to be built each year to support rapidly rising
wireless data traffic.
But in too many
instances local governments deny or significantly delay permit applications for
new towers. A case in point is the ongoing dispute over a Maryland county's rejection
of one carrier's application to build a wireless tower. Howard County v.
T-Mobile provides
some important takeaways regarding the economic opportunity and other costs of
blocking cell tower construction.
In February 2011 the
Howard County Board of Appeals denied T-Mobile's conditional use permit to
build a 100-foot concealed monopole on a church property. The Board concluded
that the wireless carrier failed to demonstrate it made a "diligent
effort" to locate its proposed facility on a government structure. The
Board also concluded T-Mobile failed to demonstrate that "[t]he ingress
and egress drives will provide safe access with adequate sight distance."
In March the U.S.
District Court for the District of Maryland upheld the Board's ruling. But what
appear to be uncontested facts call the Board's ruling into question. First,
T-Mobile did contact a local public school facilities management office. The
carrier's inquiry was apparently turned down via telephone and later confirmed
in writing. Since T-Mobile's inquiry did not follow the school district's
formal written policy, the Board rationalized that its effort was not diligent.
Second, the District
Court concluded that "[a] review of the record reflects that it certainly
contains substantial evidence that the sight distance is adequate." The
proposed site for the tower was on a church property in possession of a special
zoning exception since 1980. A County Technical Staff Report concluded that
zoning regulations relating to sight distance were "inapplicable." A County
Hearing Examiner similarly found that the driveway appeared to offer adequate sight
stance. And according to the District Court's opinion, "the Board
acknowledged that adequate sight distance existed, but it reiterated its
position that there was no evidence from which it could [be] concluded that
access to the proposed facility was safe."
The District Court
therefore upheld the Board's decision by applying a highly deferential standard
of review. Such a highly deferential standard allows local governments to
reject wireless facility permit applications for shallow reasons and in the
face of facts supporting approval.
The results in this
case include costly delays in litigating the dispute and in deploying
infrastructure for improving wireless service for the area. Now, more than
two-and-a-half years after T-Mobile first filed its permit application, the
case is going before the U.S. Court of Appeals for the 4th Circuit.
Appealing this ruling
is worthwhile simply on account of the weak factual support for the Board's
position. The 4th Circuit might find that the Board's rationale is too thin to
support its rejection of T-Mobiles permit application.
There is also a
question as to whether Maryland law requires closer judicial scrutiny of local
government rulings such as the one by the Howard County Board. T-Mobile has
argued that Maryland case precedents call for an independent judicial review of
the record that considers the merits of the permit application itself. The 4th
Circuit might clarify whether a less deferential standard is called for in
wireless facility siting cases in Maryland than in Virginia.
It's only fair to
point out that Howard County has approved a number of other
wireless towers. And the 4th Circuit might decide that the discretion of
local government bodies in administering zoning regulations controls the case.
But whatever the 4th Circuit decides, there are critical public policy
considerations that should be kept in mind by state and local policymakers in
all cases involving wireless tower siting.
Administrative delays
and tower siting denials that lack solid factual support invite lengthy and
costly lawsuits.
Lack of necessary
wireless infrastructures means that consumers in local communities lose
opportunities for enjoying improved services and additional choices.
Economic opportunity
costs are also a factor for underserved communities where lack of wireless
facilities inhibits service. States and local communities must have
infrastructure in place to support innovation and attract business enterprise,
lest neighboring states and communities offer more attractive alternatives.
These considerations are critical for states like Maryland that face interstate
competition with neighbors, like Virginia, that rate high in hospitality to
business entrepreneurship.
Whether in Maryland or
any of the other 49 states, public officials should play a constructive role in
promoting next-generation wireless deployment rather than an obstructive role.
Local governments should be proactive in coordinating wireless facility
placement on government property. They should ensure that local government
policies regarding public rights-of-way or any comprehensive land use plans
factor future technology infrastructure demands, including wireless siting
facilities. Where possible they should liaison with other local government
authorities inside their jurisdiction to further such placement.
Inter-governmental coordination and cooperation with wireless service providers
can speed up the process, avoid costs of disputes, and reduce or avoid public
opposition.
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