As the diagram below shows, there are several ways to provide coverage.  Alternatives are often limited to "alternative sites," or a shorter tower at the same site, or a monopole instead of a lattice tower.  This concept of alternatives should change with the decision in VoiceStream Minneapolis, Inc. v. St. Croix County (Wisconsin).

VoiceStream Applies and Holds "Several Public Meetings"…  VoiceStream applied to the Town of Somerset, Wisconsin, which approved a Special Exception Permit for a 185-foot tall tower, but noted that the County of St. Croix also had to approve the Special Exception Permit.  The site overlooked an historic district in Minnesota and the magnificent St. Croix Riverway dividing Wisconsin and Minnesota.  Many agencies were involved, including the National Park Service.

VoiceStream knew it had an uphill battle, but mounted a campaign to sell its tower via several public meetings.  VoiceStream even presented two alternatives to the 185-foot tower:

·            A two-tower (both of which were shorter than 185 feet) system.

·            A four-tower (all four of which were quite short) system.

The VoiceStream attorney noted that both alternatives would "provide adequate coverage for the area …"

The Multiple Short Towers Disappear…  St. Croix County hired a consultant who verified that "VoiceStream could achieve its coverage objectives with multiple shorter towers in lieu of a single 185-foot tower."  The County Zoning Officer sent VoiceStream a letter asking the applicant to show "… more towers at lesser heights to lessen the visual impacts …"

When the County's consultant conferred with VoiceStream officials, he noted that VoiceStream had only considered single-tower alternatives.  The consultant stated that VoiceStream had "an economic interest in limiting the number of towers to cover."  The County Board of Adjustment asked VoiceStream for more information and, after examining VoiceStream's response, "concluded that VoiceStream had not investigated the use of multiple, shorter structures …"  At the public hearing, the VoiceStream official was asked whether several shorter towers were considered.  The VoiceStream official said:

No, not really, because we're trying to cover a broad area with as minimum (a) number of towers as we can.

The St. Croix County Board of Adjustments denied the VoiceStream application with seven findings, including:

The applicant has not adequately researched or brought forth information on an alternative site or multiple alternative sites to lessen the visual impacts on the Lower St. Croix National Scenic Riverway.

VoiceStream Sues in Federal District Court…  VoiceStream sued St. Croix County on the two most common counts brought by carriers in federal court, claiming:

·            The County's denial of the application was not supported by substantial evidence.

·            The County effectively prohibited the provision of personal wireless services.

The U.S. District Court found for St. Croix County on both counts.  VoiceStream appealed to the U.S. Court of Appeals, Seventh Circuit in Chicago.  What follows is a summary of what the Circuit Court of Appeals found.

Substantial Evidence…  The Appeals Court borrowed heavily from precedent in other U.S. Circuit Courts.  The arguments are paraphrased here with reference to the number of the Circuit Courts they were borrowed from.

·            The Telecommunications Act does not limit the substance of local land use regulation (1^st, 2^nd, 7^th and 11^th Circuit Courts).

·            Substantial evidence is directed to whether the zoning is applicable to the instant case (1^st and 3^rd Circuit Courts).

·            Substantial evidence is highly deferential to the local board (1^st Circuit Court).

·            Substantial evidence is what a reasonable mind might accept to support a conclusion (1^st, 6^th, 7^th and 11^th Circuit Courts).

·            Burden of proof is on the applicant in overturning a local decision (3^rd and 11^th Circuit Courts as well as three District Courts).

·            Aesthetics is a valid concern when visual impact was at issue before the local board (2^nd, 3^rd, 4^th and 11^th Circuit Courts).

·            A few generalized expressions of concern over aesthetics cannot meet the test alone as substantial evidence (2^nd, 6^th and 11^th Circuit Courts).

·            A local board's judgment over aesthetics must be grounded in the specifics of the case (1^st Circuit Court).

The Court found that St. Croix had overwhelming evidence that documented visual impacts and therefore its decision was supported by substantial evidence.

Effective Prohibition of Service …  Once again, the Court relied on other Circuit Court decisions to support its upholding of St. Croix County's decision, all of which are paraphrased with reference to the number of the Circuits they were borrowed from.

·            Many courts have found that individual denials could "at times" be effectively prohibiting (1^st, 2^nd, 3^rd, and 4^th Circuit Courts).

·            But in order to effectively prohibit, a local board would have to make such denials repeatedly (2^nd and 4^th Circuit Courts).

·            Although a pattern of denials or carrier hostility by the local board need not be shown in order to prove effective prohibition, more than denying an application to fill a gap must be shown (3^rd and 4^th Circuit Courts). 

·            It must be shown that, after a denial, further efforts would be a waste of time (1^st Circuit Court).

For this Circuit Court, the crux of the issue was that VoiceStream did not seem to try a multiple site option.  Instead, VoiceStream dismissed multiple-tower alternatives as infeasible by conclusory statements alone, thereby never submitting substantial evidence that several shorter alternatives wouldn't work.  The District Court was affirmed on both counts.

Conclusion …  From PlanWireless' perspective, this is the proverbial nail in the coffin for groundless suits from carriers.  Not only has this Circuit Court upheld the alternative of several shorter sites, but also the three-judge panel issued a well-researched opinion supporting the District Court as well as St. Croix County.

Second Generation Properties v. Town of Pelham 

In 1998, the Pelham, New Hampshire zoning ordinance provided that communications towers in residential zones required a special exception.  Two carriers expressed interest in using a tower proposed by a property owner, Second Generation.

In 1999, the Town passed a personal wireless services ordinance which authorized conditional use permits for cell towers in "overlay zones" in areas zoned for industrial and commercial uses.  Second Generation's property is in an area zoned residential, thereby requiring a variance.

In 2000, Second Generation sued the Town in federal district court alleging that the ordinance violated the Telecommunications Act by prohibiting the provision of personal wireless services.  The district court issued a stay to allow Second Generation to seek a variance from the ZBA.

The ZBA denied the variance.  Second Generation amended its complaint in the District Court to challenge the denial as well as the ordinance.  The complaint alleged that:

·            The ZBA decision was an "absolute prohibition" against cell towers in residential zones.

·            At least six carriers had significant gaps along Route 128 and that it would be impossible to fill the gap without building a cell tower in a residential zone.

·            Unreasonable discrimination against the four carriers.

·            The ZBA decision was not supported by substantial evidence.

Shortly after the ZBA decision, the New Hampshire Supreme Court issued a decision relaxing criteria for proving hardship in ZBA proceedings.  In 2001, both Second Generation and the Town filed summary judgment motions and the District court remanded the case to the ZBA for a redetermination of hardship for the variance. 

The ZBA re-heard the application in 2001.  The hearing resulted in new information, including the fact that carriers in New Hampshire could enter into right-of-way leases along state highways.   The ZBA denied the variance finding that Second Generation did not meet any of the conditions for obtaining the variance and had failed to meet any of the hardship criteria. 

The parties filed motions for summary judgment with the District Court.  In 2002, the District Court granted the Town's motion for summary judgment.  The Court held that:

Second Generation did not meet its burden to show that there was a significant gap in coverage or its burden to show that the gap could not be filled by other means.  It found that a gap is significant only if the area in question is not served by any carrier … Second Generation failed to investigate whether other sites outside the Overlay Zone could provide the necessary service.

Second Generation appealed to the U.S. Court of Appeals for the First Circuit, which affirmed the decision of the District Court in favor of the town.

Effective Prohibition…  The Appeals Court found this to be a difficult question. 

Most significantly, it raises the question of the correctness of the rule adopted by the district court that if any carrier provides any coverage within a purported gap, then there cannot, as a matter of law, be an effective prohibition of wireless services.  We disagree with and reject any such rule, but ultimately agree with the court's alternative ground for holding that there was no effective prohibition ... 

The rule in this circuit is that the TCA's anti-prohibition clause is not restricted to blanket bans on cell towers imposed by towns.  The clause may, at times, apply to individual zoning decisions.  In invoking the effective prohibition language, the burden on the carrier … is a heavy one; to show from language or circumstances not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try. 

The Appeals Court found "that there can be no general rule classifying what is an effective prohibition.  It is a case-by-case determination."

Second Generation's attack on the town's ordinance failed because the ordinance provides for variances in residential districts and the town has not said that a categorical ban is in effect outside of the Overlay District.

Service From Another Jurisdiction…  Second Generation raised the question as to whether the town or court may consider service by carriers that are not licensed in the N.H. Trading Area and provide service from a Massachusetts carrier in another town.  The Court found that it is:

… permissible to consider (1) roaming service, (2) the coverage provided from towers in other towns, and (3) service by carriers not licensed in the jurisdiction at issue.  Under the right conditions it may be possible to provide an adequate level of personal wireless services to a particular community solely through facilities located outside that community.

Second Generation countered this position, asserting that considering service from outside the community would allow the town to displace onto other jurisdictions the obligation to host new cell towers.  The Court found this argument:

… contrary to the TCA‘s emphasis on protecting the interests of consumers and residents rather than those of carriers and developers.

Alternatives More Critical Than Significant Gaps?  The Court noted that this case rests on the issue that has divided the courts, of whether there can ever be an effective prohibition of personal wireless service if there is any carrier that provides coverage in the geographic gap area.  The District Court followed the Third Circuit in ATP Pittsburgh Ltd. v. Penn Township in finding that if any carrier provides any coverage in the gap area then there can be no effective prohibition.

The Appeals Court noted that the Telecommunications Act uses the word "services" in the statement that "local government "shall not prohibit or have the effect of prohibiting the provision of personal wireless services."  Congress intended that there be multiple carriers to provide service to consumers.  Congress may have meant the effective prohibition clause to reach certain situations in which there is some coverage in a gap.

An applicant for a zoning permit arguing that there is an effective prohibition must still show that there are no alternative sites which would solve the problem.  Even if there were a significant coverage problem in terms of a number of different carriers being unable to provide service to a significant number of users, the Court believes that a town would be entitled to consider whether a particular proposed tower would solve the problem. 

The Court found that, in this case, the record shows that Second Generation did not meet its burden to show that there are other potential solutions to the problem of the significant gap.

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