Five Easy Mistakes Your Community’s Wireless Ordinance Might Make

Kreines & Kreines, Inc. can tell very quickly whether the ordinance we are reviewing (and we’ve reviewed hundreds) can stand the test of scrutiny or not. Here are some of the common mistakes we find:

· Calling personal wireless service facilities “Wireless Communication Facilities” or “Wireless Telecommunications Facilities” and then citing the Telecommunications Act of 1996, which deliberately limits itself to “personal wireless service facilities.”[1] Any ordinance writer that does use the terms “Wireless Communication Facilities” or “Wireless Telecommunications Facilities” probably didn’t read the Telecommunications Act. Instead they may have copied another city’s ordinance.

· Calling a personal wireless service facility a “tower.” Just because the wireless industry claims it must have towers does not mean there are no other ways to deploy wireless.

· Allowing a carrier or tower company to apply for a variance. A variance is a one-time exemption due to a problem with a property owner’s hardship on a single piece of real estate. A variance is not a “Get Out of Jail Free” card for the renter to, time and time again, claim extenuating circumstances. (Almost all carriers and tower companies are renters, when applying, not landowners.)

· Failure to require the consideration of alternatives. The best way to avoid lawsuits is to study alternatives to the “tower” proposal. Alternative sites to be sure, but they are a small part of alternatives. There are alternative technologies, one of which is described in the next article.

· Establishment of an arbitrary height limit. It is virtually impossible to tell the difference between a 150-foot tower and a 190-foot tower unless viewed side-by-side. OK, says the industry, so why not permit 190-foot towers everywhere? Answer: because towers are not the solution at any height.

A good zoning ordinance should begin with what the local government wants, not what it doesn’t want.

[1] In a federal case in the District of Columbia, the distinction between personal wireless service facilities and other types of wireless was crucial: The District’s actions with respect to plaintiff’s tower do not prevent it from constructing a “personal wireless service facility” on American Tower’s site or from providing “personal wireless service.” The District of Columbia’s regulatory actions against a tower were upheld because they did not prohibit personal wireless service facilities or personal wireless services.