Friday, February 18, 2000
State action may pre-empt local zoning for towers
A bill is about to be submitted to the state legislature which would significantly change the process of siting cell towers in Carlisle and which would arguably undercut some of the safeguards built into the new town bylaw. Drafted by the Massachusetts Municipal Association in conjunction with the wireless communications industry as a compromise to a legislative stand-off, the bill has generated immediate opposition by advocates of local control but is staunchly defended by the MMA as a positive step for municipalities.
According to the MMA, the bill would encourage the siting of cell towers on existing structures by allowing a streamlined permitting process for so-called "minor facilities." A minor facility is any wireless communications facility installed on an existing structure and which does not extend higher than ten feet from the highest point of the structure. Minor facilities are allowed in any zoning district, but a minor facility would be allowed in a residential district only if it is located on municipally owned land or on certain large utility structures or is located inside an existing structure. (Auxiliary equipment may be outside the structure.) An application for a minor facility is submitted to the building inspector who essentially reviews the application for building code compliance.
New towers would be considered "major facilities" and would be subject to the normal special permitting process of the zoning law.
Tony Blair, a selectman from Great Barrington and a leading opponent of the bill, sees several problems with the proposal. In a memorandum dated February 4 circulated to interested citizens and local officials, Blair stated that the bill's incentive to construct minor facilities destroys the notice and community feedback safeguards of the special permit process. "An application for a building permit, when the permit is an allowed use, is not a hearing or an opportunity to place conditions on the use. It is simply a rubber stamp," wrote Blair.
Secondly, Blair pointed out that the bill provides no oversight for the number of facilities and their location, and thus no monitoring of emissions from these facilities and no way of knowing whether federal emissions standards are met. "This bill would lead to the unregulated build-out of these facilities in the very location (roof tops) where, should they exceed the limits, they are most likely to cause harm to nearby populations."
Moreover, Blair wrote that the bill does not, as its drafters claim, uphold local zoning controls. The specific language of the bill contains "a caveat big enough to drive a Mack truck through," wrote Blair. For example, if, as in Carlisle's case, the town bylaw asks the provider to demonstrate the need for a new tower, then this bill would override the town bylaw.
Finally, Blair questioned whether the state has the right to reduce the zoning powers of local governments so dramatically and take away a federally granted right. "The Telecommunications Act of 1996 specifically reserved for municipalities the right to control, through local bylaws, the placement, construction and modification of personal wireless servicesThe state is coming along and (if this legislation is passed) taking that federal right away."
MMA representative Thatcher Kezer, a leading architect of the bill, disagrees with the detractors. "I think the bill is great," he said, further stating that the bill is entirely consistent with the MMA's goal of strengthening the powers of local governments. The MMA had three objectives during the negotiations: to remove the state Department of Telecommunications and Energy from the siting process, to encourage facilities to be installed on existing structures and to keep the siting decision out of the courts.
Under current law, said Kezer, DTE may review a community's denial of a cell tower application. The mere threat of going to DTE would tilt the local approval process in favor of the providers because the standard of review at the DTE, said Kezer, is whether there is a need for the service in the state, which also slants in favor of the providers.
The incentives for locating cell towers in existing structures were meant to be read in tandem with other provisions of state law affecting municipalities, explained Kezer. For example, the town must initiate a proposal to allow a cell tower on town owned land through the RFP process, and the use of town property for this purpose must still be approved by Town Meeting.
With respect to new cell towers, said Kezer, the bill was intended neither to override siting criteria, such as setbacks, set forth in local zoning bylaws, nor to eradicate the local special permitting process.
Kezer said that he expected the MMA board of directors to approve the proposed legislation last week. The bill would then be forwarded to the Senate and House Committees on Government Regulations. According to Senator Susan Fargo, it is questionable whether there will be another hearing on the bill before it comes up for a vote, although the senator said she thinks there should be a hearing because it is substantially a different bill. Kezer expected that the bill will be voted on before budget hearings begin this spring.
The potential lack of a hearing will not prevent opponents from having their day on Beacon Hill. Local activists held a meeting in Wayland on February 5 to discuss the proposed legislation and to formulate strategies for opposition. These strategies include an aggressive letter-writing campaign and personal lobbying efforts at the State House urging state lawmakers to, if not stop the bill, at least insist on a public hearing.
Local opposition to the bill seems strong. "I'm 100 percent against this bill," said wireless applications advisory committee member Paul Gill. "It would totally undercut our bylaw that we worked so hard to get."
It seems that at least part of the message has already been heard. According to Fargo's chief of staff Don Siriani, "Whatever shape the legislation finally takes, we want local communities to have the widest amount of local control."
In 1998, the Department of Telecommunications and Energy ruled that wireless communications providers were public service corporations entitled to certain exemptions from local zoning control if the DTE deemed the proposed use to be reasonably necessary for the convenience or welfare of the public. The 1998 decision reversed an earlier ruling that the Telecommunications Act of 1996 afforded these companies enough protection that they did not need designation as public service corporations. Under the TCA, municipalities may not prohibit cell towers, discriminate among providers or regulate based on environmental effects of radiofrequency emissions so long as federal emissions standards are met.
In response to the DTE ruling and the outcries the ruling inspired from local governments, the state Senate passed a bill stating, in essence, that wireless communications providers were not public service corporations and removing DTE from the siting process. The House, on the other hand, passed a version that created a commission that included municipal and industry representatives to review contested siting decisions. The differences in the two bills were never resolved in conference and neither came to a vote.
Due to the major differences in the two bills, the chair of the House Committee on Government Regulations insisted that the MMA and the industry work out a compromise. The recently proposed legislation is a joint product of the MMA, six wireless communications providers and the Conservation Law Foundation, with limited input from local zoning and planning boards.
The author, Phyllis Zinicola, works part-time for Senator Susan Fargo.
© 2000 The Carlisle Mosquito