In 2008 a landowner in Cabot applied to mount six AT&T cell phone towers on a silo located on their property. Fourteen individuals, including neighbors and residents of Cabot, filed a petition with the Zoning Board of Adjustment challenging the infrastructure permit.
Originally, it was proposed that the equipment used to support the six AT&T panel antennas would be located entirely within the silo. However, the continued usefulness of the silo was called into question by the necessary adjustments (i.e. cutting a door in the bottom of the silo) that would accompany this proposal. It would be necessary for the support equipment to be outside of the silo in a storage shed. This triggered local Regulations, which required that the applicant plan to include a six-foot-high fence to surround the storage shed. See Town and Village of Cabot Zoning Regulations. The applicant still planned for the six AT&T panel antennas to be located on the outside of the silo.
The Town and Village of Cabot Zoning Regulations also require telecommunications facilities to be at least 1,500 feet from residences. Here, the silo and the equipment shed would be located within 300 feet of one of the individuals challenging the infrastructure permit, and within 1,500 feet of 4 other residences. Therefore the proposed antennas were in direct violation of local Regulations.
The Zoning Board of Adjustments held several public hearings concerning the regulations and the presence of the antennas. Despite these Regulations, the Zoning Board of Adjustment determined that siting the antennas on the silo would have a de minimus impact on the surrounding properties and land use planning in the area. For this reason, the Zoning Board of Adjustment issued a conditional use permit that approved the antennas. The challenging residents appealed to the Vermont Environmental Court in July of 2008.
In re New Cingular Wireless, d/b/a AT&T Sousa Telecommunications Permit, No. 162-7-08 Vtec (Vt. Envtl. Ct. Dec. 30, 2009) (Durkin, J.). (2009)
Full opinion available by clicking here www.vermontjudiciary.org
A main concern leading to the appeal was the health and safety of people that could be adversely affected by the presence of radio frequency emissions from telecommunications facilities, like antennas. Before the Zoning Board of Adjustment granted the conditional use permit, the challenging residents presented scientific studies showing that even the “perception of health hazards” arising from telecommunication facilities lowered property values. When the challenging residents’ appeal reached the Vermont Environmental Court, the issue of federal preemption came up because the landowner applying for the AT&T antenna argued that the health hazard concern was the sole basis of the neighboring residents’ challenge.
At first blush, the challenging neighbors have a good argument: granting a permit would violate local Regulations and the presence of the antennas may cause health hazards, or at a minimum, the perception of these hazards may lower surrounding property value. However, to understand why and how the antenna applicants attacked this argument, a refresher in constitutional law will be helpful. The Supremacy Clause requires that federal law “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const. art. VI, §1, cl.2. This means that when Congress enacts a law, that law “preempts,” or takes precedence over state law. There are three types of federal preemption: (1) express preemption, where Congress uses express language to preempt state law, (2) conflict preemption , where a conflict arises between state and federal law such that a person could not comply with both laws without violating one, and (3) field preemption , where congressional regulation in a certain field is so encompassing that there is no room for a state to regulate. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992).
Here, the Telecommunications Act of 1996, a piece of federal legislation, applies to telecommunications facilities such as the proposed Cabot silo. The purpose of the Telecommunications Act of 1996 is “to facilitate the spread of new technologies nationwide . . . ” Id. at 12 quoting N.Y. SMSA Ltd. Partnership v. Town of Clarkstown, 603 F. Supp. 2d 715, 735 (S.D.N.Y. 2009). The Vermont Environmental Court noted that “[o]ne . . . obligation imposed upon municipal regulatory authorities [by the Telecommunications Act of 1996] is to recognize the exclusive authority of the FCC to regulate RF emissions from telecommunications facilities.” In other words, the Telecommunications Act preempts state law regulating the safety of RF emissions. The case that the environmental court used to guide its analysis did not identify the type of preemption (express, conflict, or field) that the Telecommunication Act uses to preclude state regulation.
Nonetheless, without independent analysis, the environmental court concluded that the Telecommunications Act of 1996 preempted any attempts by the challenging residents to argue that radio frequency emissions presented a hazard to human health or lowered property values. The court also concluded that Act also prohibited the Zoning Board of Adjustment from considering these local issues.
This case study demonstrates how the concerns of local residents and determinations by local government—pursuant to Regulations—can be overridden by federal preemption. This case study also shows that local Regulations are not necessarily set in stone—conditional use permits can facilitate infrastructure development. Finally, this case shows the length of time involved in challenging infrastructure developments. The residents challenged the Zoning Board of Adjustment’s permit determination in 2008, and the Vermont Environmental Court handed down a decision on a few, specific issues in 2010. However, the case is ongoing because the Environmental Court did not decide all issues.