Cell Towers: There is Just Nothing Pretty About Them (and That May Just be Their Demise)

Aesthetic-Based Cell Tower Zoning Ordinance Upheld
From the Georgia Zoning Blog:
(click headline for full text)

by Kyle Williams

On May 13, 2008, the United States District Court, Northern District of Georgia held that the Telecommunications Act of 1996 , 47 U.S.C. § 151 et seq., does not preempt state or local zoning powers so long as local governments:

1. Do not unreasonably discriminate among providers; 
2. Do not completely prohibit personal wireless services; or, 
3. Do not limit the placement of wireless facilities based solely upon “environmental effects" of radio frequency emissions.

The Court held that a local zoning ordinance that established aesthetic-based guidelines for placement of wireless, cellular, television and radio telecommunications towers and antennas was a reasonable and proper exercise of local governments' exercise of its zoning and police powers and was not preempted by the Telecommunications Act.

Basically, SE Towers wanted to construct a 250-foot telecommunications antenna in Pickens County, Georgia to expand its personal wireless communications system.  SE Towers chose a site that was close to the unincorporated village of Tate in the foothills of the Appalachian Mountains.

Tate is known for its historic and abundant marble quarries that date back to the 1830s.  Tate is home to numerous historic sites listed on the National Register of Historic Places.  The site SE Towers chose was approximately 1,100 feet from the Tate Historic District.

To build its tower, SE Towers had to obtain permits from the Federal Communications Commission, the Federal Aviation Administration, and the Pickens County zoning authority.  Because of the potential visual impact on the Tate Historic District, SE Towers also had to obtain permission from Georgia’s State Historic Preservation Officer under the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq.

SE Towers obtained all the necessary permits and permission, except from Pickens County. Under the Pickens County zoning ordinance, a permit was required to construct a telecommunications tower or antenna in excess of 70 feet in height which had the stated purpose to “establish guidelines for sitting of all wireless, cellular, television and radio telecommunications towers and antennas.”  The zoning ordinance outlined several specific “goals” to effectuate that purpose, which included:

• To locate telecommunications towers and antennas in areas where adverse impacts on the community are minimized;

• To encourage the design and construction of towers and antennas to minimize adverse visual impacts; and,

• To protect those geographic areas containing visually significant or unique natural features.

At a public hearing, a representative from community and historic preservation groups made a presentation opposing the tower because it would have “direct and adverse visual impact” on the views from within the Tate Historic District, which was followed by a number of residents voicing aesthetic displeasure with the proposed tower.  Pickens County denied the permit.

SE Towers appealed under the Telecommunications Act of 1996 (TCA), 47 U.S.C. § 151 et seq. seeking an injunction from Pickens County to issue the permit.  The District Court denied the appeal holding that the Telecommunications Act did not preempt Pickens County’s zoning authority.

The Court held that the aesthetic goals of the Pickens County zoning ordinance did not conflict with the Telecommunications Act because nothing in the Act “forbids local authorities from applying general and nondiscriminatory standards derived from their zoning codes, and . . . aesthetic harmony is a prominent goal underlying almost every such code.”