WASHINGTON-In a major setback to Bell Atlantic Mobile and AT&T Wireless Services Inc., the Virginia Supreme Court ruled wireless carriers must have local approval to erect towers on state-owned property.
The decision complicates a 1997 agreement by the Virginia Department of Transportation to let AT&T and BAM build 30 mobile phone transmitters along busy highways in northern Virginia. VDOT, in turn, would receive $150,000 in rent from the carriers spanning 10 years and can attach cameras to the monopoles to monitor traffic flow.
“Attorneys for VDOT are reviewing the ruling, and of this date, it’s too early to assess the impact the ruling will have on existing and proposed towers,” said Andy Farmer, a spokesman for VDOT.
The court’s Nov. 5 ruling was issued just one day after the National Capital Planning Commission voted to approve antenna-siting applications of BAM, culminating a five-year effort to erect towers in Rock Creek Park. A District of Columbia appropriations still in play would go further than NCPC.
In the Virginia lawsuit, BAM and AT&T argued they did not need county approval to site antennas on land owned by VDOT. That argument proved persuasive in Fairfax County Circuit Court, which ruled in favor of the wireless carriers. But the carriers’ argument did not wash with the Virginia’s high court.
“While VDOT would benefit from the ability to place its equipment on the towers, VDOT does not own the towers or have a primary right of use of the land subject to the leases during their terms,” wrote Justice Lawrence L. Koontz Jr. in an 11-page opinion.
“The telecommunications companies are in the same position with respect to the towers in question as they would be for any other such towers constructed on land leased or acquired for such purposes,” added Koontz. “The mere fact that the towers are conveniently, or even necessarily, located on state-owned rights-of-way is irrelevant to the question whether they fall within the regulatory authority of the planning commission.”
AT&T, BAM and the Cellular Telecommunications Industry Association were taken aback by the ruling.
“We’re disappointed in the ruling, and we’re evaluating our next steps,” said Chris Dougherty, spokesman for AT&T Wireless in Baltimore and Washington, D.C.
One option for the carriers is to challenge the ruling at the U.S. Supreme Court.
Because some facilities already have been built, a more likely option is that AT&T and BAM will seek the siting approval in Fairfax County that both bypassed originally. Being in the driver’s seat, the county could demand concessions from BAM and AT&T, such as sound barriers for homes near highways where mobile-phone towers exist or might be located in the future.
“This is an important decision for the quality of life in Fairfax County (Va.) and for the preservation of neighborhood values,” said Fairfax County Supervisor Stuart Mendelsohn, a driving force behind the lawsuit against the two wireless carriers. “The approval process was designed to provide input from individuals and landowners in affected communities and to safeguard against unnecessary negative impact on established neighborhoods.”
Rulings from state and federal courts on antenna-siting disputes between local governments and carriers have been anything but uniform in recent years. In many cases, the legal wrangling pits local zoning authorities against a federal policy that promotes the buildout of wireless systems throughout the country.
“It never ceases to amaze me that wireless carriers continue to forget that judges live in neighborhoods and have to look at these things, too,” said Paul Rosa, a siting consultant and principal of Digital Landscapes.
Despite the lawsuits and antenna-siting moratoria around the country, carriers and local officials-aided by the federal advisory committee-appear to have made progress in recent years.
But tensions still exist.
The limited federal pre-emption of local siting regulation the wireless industry managed to secure in the 1996 telecom act is under siege. Bills sponsored by Sen. Patrick Leahy (D-Vt.) and Rep. Charles Bass (R-N.H.) would give local governments even more oversight of antenna siting than they have today.
But because the bills need approval of committees chaired by pro-industry lawmakers, there is little chance the measures will make it out of Congress.
