Case Study: Reconciling Land Use Issues

1. Case Study: Reconciling Land Use Issues 3.1.1 Overview of State & Local Authority

2. Zoning & Land Use • Local governments have jurisdiction over land use issues & zoning per delegation by states to local authorities. • Zoning & Land use is designated by local ordinance. • Types, Nature & Scope of land use are authorized pursuant to the government’s exercise of Police Powers to protect public health, safety & welfare. • Deviations from uses prescribed by law addressed through administrative boards & commissions, e.g., zoning commission, planning, architectural review boards.

3. Addressing Competing Interests • Some uses may be necessary & have utility but be undesirable. • Examples include: nuclear power plants, prisons, dumps, liquor stores, adult entertainment, and antenna towers. • Objections not based on police powers include environmental concerns; aesthetics, affect on property values. • Tests focus on balancing utility of use against detriment to surrounding communities.

4. Undesirable Uses Reasons for Undesirability Undesirable Uses

5. Undesirable Uses Nuclear power plants Prisons Dumps Liquor stores Adult entertainment Antenna towers Halfway houses Reasons for Undesirability health, safety and risk of injury safety, undesirable persons, reduce property values odors, attract rodents, unsightly attract loiters, intoxicated appeals to questionable persons unsightly, safety, radiation reduce property values, safety Undesirable Uses

6. Reasons to Object • Objections not based on police powers include environmental concerns; aesthetics, affect on property values. • Tests focus on balancing utility of use against detriment to surrounding communities. • Limit number, location, supervision, hours of operation

7. Exercise 1 1) Your neighbors want to build a 8 foot wooden fence to divide your properties to give them more privacy. You think the fence will obstruct the airflow and view and will be unsightly. The local building code allows someone to construct a fence not to exceed 6 feet high without consent of neighbors living in surrounding area. The environment laws permit neighbors to plant shrub at their discretion. You are lawyers representing the homeowners involved. Negotiate a resolution to the problem.

8. Exercise 2 • 2) You have a dog and take your dog walking in the neighborhood park, which is enclosed, and therefore allows you to take the dog off of the leash. There is a local leash law that requires owners of pets to have their pet on a leash except in predetermined areas. Local residents comprise 50 percent dog owners and 50 percent non dog owners. Other neighbors like to use the park to sunbathe, bring their children to play, or read a book. Both groups have petitioned you as City Planner for a designation that the park will be used exclusively for competing purposes. You would like to encourage the residents to resolve this dispute by negotiation.

9. Exercise 3 3) An electrical problem in the main power line causes outages in 7 cities across the northeast. Each of the cities blames other cities as causing or contributing to the outage. Once the source of the outage is determined, it becomes evident that there are three contributing problems that lead to outages: 1) outdated equipment that was unable to accept the capacity required over the line; 2) overcapacity on the system at strategic stress points; 3) inadequate maintenance of the physical areas surrounding the lines that increase the likelihood of damage from storms. Identify the problem or problems that need to be addressed and a strategy for tackling the problem.

10. Location of Antenna Towers Part 2

11. Problem • 1) Local land use authorities that regulate the location of antenna towers within a community apply the criteria for special exceptions and variances inconsistently, leading to ad hoc and arbitrary denial of applications by communication providers. • 2) There is a need to reconcile environmental, aesthetic, and safety concerns associated with location of antenna towers with federal law that prescribes minimum standards and guidelines for RF radiation.

12. Goal • Your goal is try to resolve the concerns of all of the parties to permit the use through negotiation, rather than a third party decision maker where neither party may be pleased with the outcome, but still must live with and interact with same parties.

13. Facts • Developer owns a 4-acre triangular-shaped piece of property on the top of a mountain in the City of Saints. The property is currently used to locate broadcast, microwave, and satellite antenna towers. The satellite antenna is 10 feet in diameter, the microwave tower is 140 feet high and the broadcast antenna tower is 200 feet in height, both visible from Cool Housing, Interstate 54 and the beach. The property is zoned to permit as a matter of right, institutional or light industrial use. Design approval is required. Q: IS THIS A PREEXISTING USE? IF SO THEN SPECIAL EXCEPTION APPLIES, IF NOT THEN VARIANCE.

14. Facts • Developer inherited the property from his family and wants to move the existing towers to the northern end of the site, which will require a 100-foot encroachment on to city property. • Wants to build a high-tech industrial park on the south end of the site. • Use of the site for antenna towers was grandfathered in under local zoning authority. • The proposed relocation and development plan requires a conditional use permit. Such uses would likely be prohibited as a matter of right, requiring either a special exception showing compliance with local regulations; or a variance, since the property is located in an area that under current zoning would prohibit such use. • The current towers are located within 1500 feet of the nearest residential area.

16. Questions Q: HAS THE AREA CHANGED TO THE EXTENT THAT THE PROPOSED USE VIOLATES LAND USE PLAN CALLING FOR A VARIANCE? Q: IF YES, THEN DID APPLICANT CREATE THE HARDSHIP THAT IS THE BASIS FOR THE VARIANCE, IF ONE IS SOUGHT? Q: IF NO, THEN CAN THE AREA ACCOMMODATE THE MODIFICATION AND ARE THERE ADVANTAGES THAT WOULD OUTWEIGH ANY OTHER INTERESTS?

17. Facts • The towers comply with current regulations by the Federal Communications Commission governing human exposure to RF radiation and minimum distance requirements to residential. Q: THE EXISTING TOWERS COMPLY, SO WHAT WOULD BE THE JUSTIFICATION FOR IMPOSING ADDITIONAL REQUIREMENTS, E.G., AS A QUID PRO QUO FOR ALLOWING THE USE; OR BY LAW PASSED BY THE LOCAL AUTHORITY? APPLICANT WOULD NOT, ON THE CURRENT FACTS, BE FORCED TO MAKE CHANGES, BUT COULD DO SO VOLUNTARILY.

18. Assumptions • The City of Saints, acting through their city council, has enacted a local ordinance that mirrors the provisions of Title 5 governing Negotiated Rulemaking. See Sections 562-566, 570 • The City of Saints, by charter, has delegated land use functions, including rulemaking, adjudication, and enforcement to the Zoning Commission.

19. Negotiated Rulemaking APA Section 561-570 • An advisory group of stakeholders who reach consensus on a rule and then government puts out as NPRM; • Gov. does not undertake independent review • Need has to be established where identifiable stakeholders and likelihood that compromise can be reached; • Settlement agreement becomes rule proposed by the agency. • Increasingly used more often to reduce time and delay. • Key is that parties are seeking some consensus • The discretion to use, establish or terminate a negotiated rulemaking shall not be subject to review.

20. Interests to be Balanced • Need for electricity & power, telecommunication services, security; but requires construction of power lines and antenna towers that are visible and unsightly. • Property values, health and safety, aesthetic. • Development for residential, commercial, research & development or existing uses.

21. Indispensable Parties • Developer/owners-Seek to act • Adjoining neighbors-Object to action • City Planning Office-Enforce zoning laws • Community Environmental Organization-Represent community interests

22. Developer • Files for a special exception to relocate the towers. • Argues the location of the towers constitute as a pre-existing use, and he is not proposing an overall increase or change in the use. • There is no issue regarding the appropriateness of locating the towers on the site and, therefore, grandfathered in. • The only issue is whether the city will allow an encroachment onto its land. • The Developer argues that the towers must be located at that site because of its proximity to the city’s power grid. [Providers rely upon the grid to generate the power to operate the antennas.] • The encroachment will be minimal and will not have an appreciable environmental impact on the biological resources or use of the property. • Developer has the support of the communication providers.

23. University of Saints • Opposes the towers because the use violates current zoning laws, reduces property values, is aesthetically unattractive, and threatens to harm the wildlife in the preserve. • Relies upon research by computer science students determined based upon studies in Europe and abroad, U.S. • RF standards are 10 percent below what has been found to be the maximum safe distances. • Believes construction of a high tech park would be incompatible and directly compete with a proposed expansion of a science lab.

24. Community Environmental Org. • Opposes the plan, supports the University and wants to restore the natural views, and encourage redevelopment to residential use. • Discriminates against persons with heart pace makers, hearing aids, and other medical devices that rely upon electricity. • Studies show devices used in close proximity to power plants malfunction or are subject to interference with their operation, causing a high risk to affected persons.

25. Rules • Federal government has preempted state and local authority to the extent that it precludes or bans the activity in its entirety in the Telecom Act. • Action by a board must be based upon substantial evidence.

26. Variances • Variances are appropriate where the use is prohibited as a matter of right and is not self-created; but for some unique physical circumstance, an unnecessary hardship created. • Variances should be used where the physical characteristics of the land make it necessary for the reasonable use of the property. Unique topography is one basis for granting a variance. • Bottom line: HARDER TO PROVE, MUST SHOW HARDSHIP.

27. Special Exception • Applies where the use is not barred, but the statute provides that the use can only be permitted on a showing that certain conditions have been met. • The requirements are less stringent than variances. • State Zoning Enabling Acts vest authority in local zoning boards to hear and decide such issues.

28. Principles • How board’s apply the rules have resulted in ad hoc decision making that is inconsistent and creates a hardship to providers. Fact specific but are the parties the same or different. • Negotiated rulemaking puts all of the critical stakeholders together to try to resolve the issues. The City acts as a mediator to facilitate a resolution, taking into account general planning and regulatory constraints in enforcement.

29. Principles • Antenna towers are fundamental to wireless telecommunications systems, and must be constructed above ground with clear line of sight, so they have to be erected somewhere in order to provide service. Can provide buffers, aesthetic covers to minimize visibility. • Service requirements often dictate minimum space requirements, line of site, so options for location are limited.

30. Principles • Wireless communications require clear line-of-site, which is why towers are generally located at high elevations or outside heavily populated areas with tall buildings. • Towers are placed in a pattern or grid to minimize “dead zones,” interference or disruption of the signal.

31. Goal • Your goal is try to resolve the concerns of all of the parties to permit the use through negotiation, rather than a third party decision maker where neither party may be pleased with the outcome, but still must live with and interact with same parties.

32. Questions Q: HAS THE AREA CHANGED TO THE EXTENT THAT THE PROPOSED USE VIOLATES LAND USE PLAN CALLING FOR A VARIANCE? Q: IF YES, THEN DID APPLICANT CREATE THE HARDSHIP THAT IS THE BASIS FOR THE VARIANCE, IF ONE IS SOUGHT? Q: IF NO, THEN CAN THE AREA ACCOMMODATE THE MODIFICATION AND ARE THERE ADVANTAGES THAT WOULD OUTWEIGH ANY OTHER INTERESTS?

33. Task • Identify the priority of interests for each party. • Develop a strategy that will address each party’s concerns. • Negotiate a compromise.