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The Medina Experience in Federal Court

A New Venue for Zoning Review?
Written by Kirk R. Wines, City Attorney, Medina and Hunts Point, Washington

In early February 1996, Medina had no idea of the controversy we were about to engender. The Council and staff knew as much about the new Federal Telecommunication Act as could be picked up from reading the evening paper. We knew it was going into effect and would dramatically change communications in the future. We had no knowledge of any specific impact on the City of Medina.

Fortunately, one Medina council member had previously worked in the industry and had an idea what we were about to face. He proposed and the balance of the council agreed to the imposition of a moratorium on the granting of permits for antennas within the City. The moratorium went into effect immediately and was scheduled to last for only six months. The moratorium was passed by a unanimous vote with instructions to the City Attorney to prepare a written resolution for the Mayor's signature.

The resolution was prepared and signed the next day. Of course, it contained much more detail than the oral resolution. Fortunately, the language of the oral resolution was used. This language, also fortunately, imposed a moratorium only on the granting of special use permits. This allowed the City to continue to receive and process applications. This was later found to be very significant by the Federal Court.

At the time the moratorium was filed, U. S. West had a pending application before the Planning Commission. The status of this application was pretty unclear. It arguably had been withdrawn by U. S. West at the last Planning Commission meeting. After the members had indicated an intention to deny the permit, U. S. West asked that the ruling be put off in order to allow them to come back with a more acceptable proposal. They had discussed siting across the street from the original proposed site with City staff and it did not appear likely that they would reapply for siting at the original location.

The Planning Commission and planning staff probably had a better idea than the Council about what the future would hold for wireless antenna applications. They were dealing with U. S. West's application. U. S. West is one of the two existing cellular providers. The other, AT&T, was also talking about a second site. The Planning Commission had also heard from some of the new entrants in the wireless communications field, the personal communications services or PCS providers. They had started discussions with planning staff on appropriate locations and facilities. The planning staff had recommended review of the rather sketchy zoning restrictions on cellular facilities and the Planning Commission was looking for some place to borrow appropriate regulations.

The only advice I gave the Council at the meeting was that they could orally adopt a moratorium and that they did not need to ask me to prepare something in writing that evening. This is undoubtedly the worst advice I gave to them on the entire subject. Fortunately, it never became an issue in the subsequent litigation.

In my office the next morning, the first thing I came across was a memorandum from the Keating Bucklin firm setting forth all of the reasons not to do moratoriums. I did obtain some helpful information from the memorandum which I was able to incorporate in the resolution, including a finding of an emergency.

Despite some saber rattling by Foster, Pepper, U. S. West did not file suit. Instead, Sprint Spectrum, L.P. filed in both Federal and State Courts, either just within or just after the thirty period for judicial review allowed in the Federal Telecommunications Act. It was possible that the Federal suit was untimely as it was actually filed on the thirty-first day after the moratorium was imposed. However, I did not put much weight in this argument because they had been lead to believe that the filing was timely by the fact that the moratorium resolution was dated on the date after it had been passed. I felt the court would say that the resolution was not effective until the date of its signature, or that the filing was sufficiently timely, or even that the court could decide that the oral moratorium was of no effect, if we were to raise issues about the details of its passage and subsequent memorialization.

Sprint rather quickly dropped its State Court action and concentrated on the action in U. S. District Court which was assigned to the Honorable William L. Dwyer. The Federal suit relied primarily on the contention that the moratorium violated those portions of the Federal Telecommunications Act that prohibit outright bans on wireless facilities and that provide that municipalities may not give competitive advantages to one provider over another. Although the suit contained other federal and state causes of action, these were never adjudicated.

We are now into early March for the filing of the lawsuit. Approximately thirty days later, Sprint amended its complaint and filed a motion for a preliminary injunction. It ask the court to strike the moratorium, revitalize the existing regulations and force the City to process a Sprint application under the old regulations. At the same time, boot strapping its way into a justiciable controversy, Sprint filed an application for a site within the City. The application gave every appearance of the location and type of facility that would not have been approved under either existing or new regulations. They sought to add forty feet to an existing lattice work tower and to put a band of large panel antennas around the top of the new one hundred foot tower. This was in an area which was developed almost entirely residentially and which overlooked the City Hall and Medina Beach Park.

Foster, Pepper used the "Blitzkrieg" method. They had their month to prepare two lawsuits for filing. They had another month to prepare their motion with literally hundreds of pages of briefing and declarations. When they filed their motion for preliminary injunction, they also filed for an order shortening time for the response. Fortunately, Medina had a lot of consultants on call. The Planner and Engineer were able to pull together maps showing how the City had developed. After twenty years as City Attorney, I was able to draw a pretty good word picture of the City. I followed the time-honored practice of not giving a busy judge any more than I thought he would take the time to read.

Sprint asked the Federal Court to rule that the moratorium was the equivalent of an outright ban of wireless facilities within the City, something that is not allowed under the Federal Telecommunications Act. Sprint also argued that failing to process their application would have the effect of discriminating in favor of the existing cellular providers, both of which had facilities within the City that had been approved in years past. Sprint's argument centered on the hundreds of millions of dollars spent to obtain licenses for the western Washington area, the hundred of millions of dollars anticipated to be spent on siting and building the necessary antenna network, and the significance of a site in Medina both to service its affluent community and to service the 520 commuters. Fairly cogent arguments supported their contention that this Medina site was a key to their being able to provide effective, seamless service in the greater Seattle/Bellevue area. Cellular sites have to be located close enough to each other that they can "pass off" their incoming and outgoing transmissions from one site to another as a person drives through the area. Too large of a gap between antennas means that calls will either be dropped or that only marginal service can be provided.

In order to obtain a preliminary injunction, Sprint had the burden of showing substantial hardship or the likelihood of success. Sprint concentrated on the hardships it would suffer if it could not start to market it services in the third quarter of 1996 with a seamless system for the greater Seattle area. It alleged damages amounting to millions of dollars per month in loss of income. It also calculated damages of hundreds of thousands of dollars per month for loss of use of its limited Federal license.

Medina's contention was that the moratorium was of limited duration, not the equivalent of a ban and only put in place to give the City adequate time to come up with reasonable proposals for exerting local zoning authority. The Federal Telecommunications Act had specifically reserved such local zoning authority to states and state agencies.

Six months was a good period to use under state law. State law requires that moratoriums only extend six months unless the city has a working plan in place and conducts additional public hearings with specific findings of fact why the moratorium requires extension. RCW 35.63. Six months was also prominent in the Federal Telecommunications Act. The FCC was given six months to develop health regulations on radio frequency transmissions. Earlier drafts of the legislation, which had preempted local zoning, would have given the FCC six months to put its own placement regulations into effect.

In addition to arguing that six months was a reasonable time to develop necessary zoning regulations, we argued that we also needed time for W.S.D.O.T. to develop its policy for siting facilities in states rights-of-way. This was the most logical place to put facilities within Medina. Of course, we are still waiting for these regulations. The last word from the AG's office on these regulations was that they were on hold, awaiting the issuance of regulations for placement of fiber optic cables.

Judge Dwyer agreed with Medina's position in these arguments. A copy of his order on a motion for preliminary injunction is attached. You will see that Judge Dwyer prepared a ten-page explanation of his decision. He cited both the relevant portions of the Telecommunications Act and state law on moratoria. I will not be repeating these citations.

I was pleasantly surprised to find that there is considerable favorable language in the Washington Appellate Court cases describing the use of moratoriums. The cases actually state that use is favored. While describing the types of situations that usually give rise to moratoriums, the courts have approved informalities in their adoption, including the lack of any prior public notice. Perhaps my advice had not been so bad after all.

Judge Dwyer held that the moratorium was not the equivalent of a ban. In doing so, he reasoned that applications were still being accepted and processed. He accepted our contention that the moratorium, which was well into its third month, could only add two or three months to the time necessary to process Sprint's application. The City had agreed to complete this processing during the moratorium even to the extent of conducting initial hearings before the Planning Commission. We were prepared to make a decision and do everything short of granting the actual permit. I think continued processing was important to Judge Dwyer for at least two reasons. The fact we were processing the application did mean that the approval time would probably be extended by less than one month. It also showed good faith in our intention not to extend the moratorium. We were able to bolster this argument by making a written offer to enter into a binding commitment not to extend the moratorium, even to the extent of offering to have this commitment set forth in a court order. We were able to get this written offer into the materials submitted to Judge Dwyer.

Although neither argued nor stated in the decision, it was pretty clear Judge Dwyer did not want to get involved in reviewing local zoning decisions. Judge Dwyer was also very interested and, I think, impressed by the work that Medina had done prior to the court hearing.

We had scheduled two meetings for presentation by the local industry providers. During these meetings, we asked for and received information on the type of technologies we were going to be seeing and the types of facilities the providers would require in the City. We had now heard from five potential providers. We knew there were others including one successful bidder that was unable to pay for its license. Later we were to receive two amici briefs on Sprint's motion. One of these was from a provider we had never heard of before. At this point, there was even some concern that granting sites to the current round of applicants would eliminate possible sites for future applicants, causing the citizens to lose out on more advanced services.

We learned about some really great stuff, little of which could be used in Medina. We learned about Stealth technology, making antennas invisible. We saw installations that were concealed in clock towers, flag poles and streetlights. We saw pictures of panel antennas which were installed behind screening on tall buildings and small "whip" antennas on the tops of tall buildings. We learned that the new technology, PCS, required significantly different facilities. PCS uses a different wavelength than cellular. Cellular signals can go through trees, through the roof of your car and into your basement. PCS does not want to go through anything and requires virtual line of sight transmission. PCS signals also do not travel nearly as far. Obviously, this means more antennas. Because the antennas need to be above any obstructions, they also need to be taller. We were less than thrilled with the idea that all of the new providers were going to require several sites in a City which is only one mile wide and two miles from point to point. We started to think of the possibility Medina could be turned into an "antenna farm".

At the second industry presentation we "forced" them to prepare a general plan setting forth which providers required facilities in the City and in which areas of the City. We were able to create this plan largely through pressuring Sprint Spectrum to spearhead and coordinate the effort through the issuance of a mitigated DNS which required Sprint to analyze both its siting requirements and those of the balance of the industry. Sprint did manage to pull a consortium together and to convince its brethren to divulge information that they otherwise considered proprietary, such as which land owners were willing to negotiate leases and how proposed sites tie into other regional sites. Not surprisingly, the site which Sprint had already applied for was a prominent element the plan.

The general consensus was that each provider would require two facilities. One in the north end of the City near the 520 corridor and one in the south end of the City. Some talked of needing more facilities to adequately cover the City. No one made a proposal for co-location, a preferred alternative under existing regulations and a requirement under proposed new regulations. No one suggested any Stealth technology. By this time, frankly, the industry presentations were becoming boring. Everyone was tired of spending two hours looking at pictures of virtually invisible installations and one hour hearing about what the industry wanted, one hundred foot lattice towers.

Unfortunately, much of the new Stealth technology is not suited for a primarily residential community like Medina. Medina does not have the three and four story buildings which can conceal panel antennas at an adequate height. One of the schools in the City already had a cellular facility hidden behind panels in a wall and was willing to accept additional facilities. The other two schools in the City had no interest in exposing students to radio transmissions.

The industry presentations always included numerous statements about the importance of wireless communications, especially during emergencies when communication by emergency workers was essential but regular telephone services was lost. No one tried to explain why the police radios would not work. We also heard a great deal about the safety of present day wireless facilities which do use very low levels of power. The power at the base of these facilities is, in general, barely measurable. We really had no interest in this topic since the Federal Telecommunications Act clearly provides that the local jurisdiction cannot refuse an application out of health concerns.

We tired very quickly of hearing that the providers could not put their antennas on the Clyde Hill water tower because they would be too high and would interfere with adjacent sites. We tired just as quickly of hearing about Medina's unique topography requiring multiple antennas. We also got tired of providers, such as Sprint, which were offering to place their equipment cabinets under ground across the street in Clyde Hill but claimed that they could not do the same in Medina because of their inability to build a watertight vault. Not surprisingly, most all of the homes in Medina have basements. Almost none of them leak, except when someone throws a basketball in the ditch. Oh well, that's another lawsuit.

As a unique bonus of the federal action which was drawing national attention, we heard from a number of experts throughout the country. We had previously heard of and obtained a copy of a very informative compilation from the San Diego Association of Government which included both technical information and sample ordinances. For a copy, call (619) 595-5300. A consultant from the East Coast called me about a system manufactured by the Sanders Corporation. This system attaches shoe box sized antennas to telephone poles and sends and receives signals along the pre-existing cable TV cables. Of course, it would not work in Medina since up to date fiber optic cables are required and Medina was hardwired with the old stuff in the early 1980s.

At the time of the second industry presentation, we also brought up a consultant from California. Ted Kreines is a city planner who for the past year or so has concentrated in representing municipalities, only, in preparing cellular plans and zoning provisions. Ted flew up the day before the industry presentation and met with members of the Council and Planning Commission. He attended the presentation, constantly shaking his head, and he briefed members of the Council and Planning Commission the next day. He presented a proposal and went back to California. Over the next month, we refined his proposal and came up with the current zoning regulations. You can contact Kreines & Kreines in California at (415) 435-9214. At the very least, I would suggest that you all become subscribers to his irregularly published newsletter which will tell you a lot about current events in the industry.

One of the early decisions, inspired by Ted Kreines, was to refuse to get "in the black box" with the industry. We made the decision to leave all of the technical nonsense up to the industry and concentrate on what we know how to do, planning. Our zoning provisions provide for appropriate areas for location of antennas, for siting requirements within the areas, for minimization of the visual impact of the facilities, for preferred undergrounding of the support facilities found at the base of the antennas and for co-location requirements. After public hearings attended by both technical folks and lawyers for the industry, we made several changes. To avoid John Hendricksen's accusations of site zoning, we gave up on naming the allowable sites and came up with generic descriptions. Height limits were increased for unobtrusive whip antennas with the hope the industry would not need as many antennas if they were allowed to go higher.

Stealth technology was not required but the only facility approved to date is going to look an awful lot like a street light.

Two months after passage of the initial moratorium, as required by State Law, RCW 35A.63.220, the City Council conducted a public hearing, made findings of fact and reimposed the moratorium but only over the original six month period. This was my opportunity to dot the i-s and cross the t-s. It was the Council's opportunity to receive public input, none. It was the opportunity for the industry to speak out on the moratorium, loud and clear, and it was one more chance for the lawyers to obtain tape recordings of off handed remarks from the Mayor and Council about how little they needed any of this.

Sprint's application was subjected to environmental review and additional studies were required. These ended up consisting of a rehash of everything we had been told at the industry presentations and some incomprehensible signal strength surveys. These are done by putting antennas in boom trucks, raising them to various levels and seeing how well a test signal is received in an accompanying car at various locations in the City. I refer to these as incomprehensible as we were never told whether the signal which was deemed "acceptable" was a full strength signal, a marginal signal or just this side of no signal at all. Not surprisingly, this survey reaffirmed the need for all one hundred feet of the lattice tower.

Historically, every applicant whose has come to the City has requested much more than was eventually approved. Most of these applications came back three and four times with reduced facilities after community meetings, numerous public hearings and a great effort to educate the community about the lack of hazard associated with the facility. Although many people still have health concerns, the primary impact is aesthetic. There is a potential of reducing property values because a large part of the community is unwilling to subject their families to any unknown health risk.

One of the existing cellular providers was using a seventeen foot tall panel antennas located adjacent to Highway 520 just off of 520. The other was located in an accessory building for a school. Its panels were hidden behind fiberglass and its auxiliary equipment was contained in a lean-to on the auxiliary building. Sprint insisted it needed the one hundred-foot tower and several equipment cabinets, all of which had to be located within front and side yard setbacks. They did make reasonable plans for screening the facilities on the ground.

Sprint has had its public hearing. The Planning Commission turned down the application using the old rules. At the request of Sprint's attorney, always looking at their standing in court, the Planning Commission agreed to an outright denial of the special use permit and the associated variance requests.

Rather than appealing this decision to the City Council, Sprint has now filed a request for reconsideration. They are coming back at the same site. They are now proposing a seventy-foot monopole tower with elimination of the existing sixty-foot lattice tower, a smaller array of antennas at the seventy foot level and replacement of the microwave dish which is used by the local cable TV provider at the fifty-foot level. I am trying to talk with the cable TV provider about the possibility of lowering its antenna five to ten feet which could lead to lowering the wireless antenna array. Since the cable provider owns a large interest in Sprint, I try to talk to low or mid level facilities managers who are less likely to check in with Foster, Pepper before responding to my inquiries.

We will require photo simulations showing the appearance of the wireless and cable TV antennas at the sixty and seventy foot levels. We will require understandable signal strength surveys. In the interim, we did receive surveys that we could understand from another provider so we now have a format to follow. We will require proof that the proposed facility is safe, from the prospect of a tower toppling onto adjoining structures. We will require that the antenna not transmit signal strengths in excess of those allowed under federal regulations which are currently still under review, we will require colors that are compatible with the skyline or trees and we may require that any new tower be built outside of the setback requirements. We will probably require that the new tower have much less visual impact than the existing tower.

As indicated, one new facility was approved for one of the existing cellular carriers. This facility is located in a church parking lot and disguised as a light pole. The facility was applied for at seventy feet and approved at fifty feet. The latest application is for another antenna in the church parking lot. This antenna could comply with the existing forty-height restriction. However, the applicant says that the church wants them to go higher so that their light standard will look like the one that U. S. West is putting up.

Recommendations

I suggest you all read the attached decision by Judge Dwyer and consider the advantages of a moratorium, especially if you do not already have a number of applications on file or if you have so many that you can't process them. We have heard of twenty to thirty cities, nationally, that either have or are considering imposing moratoriums.

Washington cities need to form an effective pipeline of information. My office and the Medina City Hall have probably heard from more cities dealing with these issues than AWC has. I suspect there is not a city considering a moratorium which has not obtained copies of our resolution and Judge Dwyer's decision. I also suspect we would hear about any pending suits challenging moratoriums and I have heard of none to date. If you are looking for further information on this subject, start by calling Medina City Hall (206) 454-9222 or my office (206) 301-9558. We can send you copies of the resolution, and our current zoning regulations.

Study the Federal Telecommunication's Act. Particularly relevant is Section 704 (a)(7) PRESERVATION OF LOCAL ZONING AUTHORITY.

(a)GENERAL AUTHORITY. Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of State or local government or instrumentality thereof over decisions regarding the placement, construction and modification of personal wireless service facilities.

Study the report that was reprinted with the Act. I can make copies of this available. The Senate, House and Conference Committee reports make it clear that Section 704 means what it says.

Draft regulations while thinking of the future. We are going to see tremendous changes in technology in the next few years. Medina's use permits are now limited to five years. When a provider files for renewal, it will have to show that it complies with whatever regulations we have in place at that time. The application and renewal fees are substantial. The fees are designed to recoup the costs of having our Planning Consultant, City Attorney and additional consultants review this plan on a regular basis and keep it up to date. We also charge all consulting costs relating directly to individual applications to the applicant.

Do some additional planning for future technology. All of the technological questions are not to be answered by zoning. Tacoma is studying the feasibility of installing its own fiber optic cable system. I assume they will rent out spaces on the system to cable TV, telephone and internet providers. As you probably know, your telephone company is going to want to provide cable TV to you in the near future. Your cable company is going to want to give you long distance and other telephone services. Your long distance carriers also want to handle your local calls and your local carriers want to be your long distance services. Beyond that, your electrical power providers will be selling telephone and television services. The fiber optic systems will be going in the ground and the prudent planners will be throwing in additional conduit to underground all overhead telephone, electrical and television services. Although we are probably talking about a lot of up front costs, we are also talking about a very significant future revenue source. These are the types of facilities that would be best installed while a municipality is also installing streets or storm drains. Significant savings should result from putting as many of these facilities as possible in the same trench.

We need to prepare to go to the legislature. Ask them to allow these facilities on all state rights-of-way.

Try to keep track of innovative providers. You can call 1 800 Unisite for a company that will install a tower on city property co-locate all of the wireless providers in one location and share rent with you for the space.

Finally, let me suggest how you can obtain the benefits of a moratorium without passing one. I think the answer is in environmental review. Some of this review has been precluded by recent legislation ESHB 2828 eliminates environmental review for many towers in industrial areas but these are probably not areas we are really concerned with. Medina used a mitigated DNS to require several studies from Sprint and to require Sprint to organize the consortium to present a citywide plan. We did not follow through on most of the studies required but settled for some rhetoric. Obviously, you can do a much better job. I think you can use the first tower application in a residential area to require the industry to provide the information you need. You can certainly require the applicant to provide any information you can reasonably think of. You are not treading on the provisions of the Telecommunications Act which prohibit banning facilities and require you to license them within a reasonable period of time. You are certainly not discriminating against any individual applicant by requiring it to provide all of the environmental information that you need.

Read the Medina Experience Update!


The Law Offices of Kirk R. Wines
210 Crockett Street, Seattle WA 98109 | ph: 206/301-9558 | fax: 206/213-0021
email: kirkw@cellslayer.com