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Cell tower laws such as Hempstead's face legal fights

A cell tower is seen near Nassau County

A cell tower is seen near Nassau County B.O.C.E.S. Children's Readiness Center in North Bellmore. (Sept. 16, 2010) Credit: Kevin P. Coughlin

With its new ordinance regulating cell phone towers and transmitters, the Town of Hempstead has entered a legal arena where hundreds of municipalities have gone before with mixed success.

Wireless companies and their surrogates say the zoning ordinance, which the town board passed unanimously Tuesday, would have the practical effect of banning new towers and transmitters, a violation of federal law. Elsewhere, enforcement of such ordinances has often been challenged in court.

"If a legal challenge comes up, [the ordinance] won't survive it," said Doug Dimitroff, who leads the New York State Wireless Association, a lobbying group. "There are a number of things that are seriously problematic under federal and state law."

Federal authorities won't say whether that is so, nor would the Federal Communications Commission, which regulates the placement of cell towers and transmitters, comment on the Hempstead law. Matthew Modine, an FCC spokesman, said only that federal law prohibits municipalities from considering health concerns to prohibit wireless infrastructure.

But Richard Comi, the Albany area consultant who helped Hempstead draft the proposed ordinance, said federal law gives local governments wide latitude to regulate wireless infrastructure.

 

Rules towns have to follow

Towns must follow several tenets, he said: Treat all wireless companies equally; base denials on "substantial evidence"; avoid banning new towers altogether; and do not use health as a factor, as the federal studies show there is no connection between health problems and cell towers or transmitters.

"As long as they don't zone out, in my opinion, they are not in conflict with federal law," Comi said.

Charles Kovit, the senior deputy town attorney who wrote the law, said he expected court challenges from wireless companies. "But I don't think they're going to win," he said.

The Hempstead measure blocks out huge swaths of the suburban landscape to wireless infrastructure by prohibiting new ones closer than 1,500 feet from homes, schools, day care centers and houses of worship.

The 29-page ordinance spares few details, specifying that towers must have rust-preventive paint and signs warning of radio frequency radiation. And it requires cell phone tower applicants to pay the town up to $17,000 for consultants to review their paperwork.

While hundreds of other ordinances exist in communities across the country to restrict wireless infrastructure, Hempstead's would be among the strictest, experts said, because of the sheer volume and depth of the regulations and the 1,500-foot ban. Brian Regan, government affairs counsel for PCIA - the Wireless Infrastructure Association, a national trade group, called the proposal "extremely burdensome."

Jane Builder, a spokeswoman for T-Mobile, said there were "major troubling aspects" of the new law, including the fees and radiation signage.

Comi said, however, that if a wireless carrier's proposal is rejected, the last paragraph of the ordinance allows the Hempstead Board of Zoning Appeals to "grant relief" to ensure compliance with federal law.

Nassau Legis. David Denenberg (D-Merrick) said that paragraph - and the law's silence on current towers and antenna that don't comply - made the new measure "toothless." "You're creating a big gap," he said.

 

Laws across nation

Wireless tower ordinances nationally have not always withstood legal challenges. Most recently, MetroPCS won its federal case against the City of Mount Vernon - which also has a strict cell phone tower ordinance drafted by Comi - on July 22. A judge found the city's denial of a new antenna was not based on "substantial evidence." The judge also struck down part of the town's ordinance charging $12,000 in fees.

In October last year, a panel of federal judges on the Ninth Circuit Court of Appeals in San Francisco upheld a cell tower ordinance in the city of Palos Verdes Estates, which had rejected two Sprint towers for aesthetic reasons. Aesthetics are generally considered a valid reason to regulate cell phone towers, Comi said.

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