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Towns
Join Cell Tower Battle |
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November 2, 2000 The towns of Islip, Brookhaven, Smithtown, Huntington and Oyster Bay have banded together to join other municipalities across the nation challenging the Telecommunications Act of 1996 and FCC regulations which deprive local municipalities of the power to regulate cellular tower sites on the basis of public health concerns. They expect the matter will soon make its way to the U.S. Supreme Court for consideration. The placement of cell towers throughout all of Suffolk's communities regularly draws hoards of residents to public hearings on the matter. But because the Act states that complaints of fears of potential health hazards associated with the towers may not be considered in the decision to approve a placement, town zoning officers are not able to deny a site request on that basis. Unless certain provisions of the Act are overturned and ultimate zoning power is restored, no elected officials can deny a telecommunications company's request to install a tower, no matter how vehemently their constituents protest. The reported goal of the Act was to promote the construction of a nationwide infrastructure for wireless communication. In so doing however, Congress apparently decided that the need for a national telecommunications infrastructure necessitated a certain loss of inherent power in the towns. The law firm of Rosenberg, Calica & Birney, LLP is currently preparing an "amicus" brief on behalf of the towns of Islip, Huntington and Smithtown in support of a petition for writ of certiorari challenging the Act and the implementation of the regulations. The action does not mean the towns are joining a national lawsuit but rather that they may now be considered "friends" of the action and will be continually advised of its progress. According to Attorney Edward Ross of Rosenberg, Calica & Birney, the numerous municipalities are launching a constitutional challenge to the 1996 legislation to protect the rights of their residents. "Normal zoning powers clearly extend to cell towers but the telecommunications act essentially vetoed the town governments' ability to deal with health effects," said Ross. The certiorari asked for is to declare the Telecommunications Act of 1996 unconstitutional under the Tenth Amendment. The next step is to convince the Supreme Court to hear the case, said Ross. A federal court of appeals decision has already upheld the constitutionality of the FCC's Act. If the Court decides that those provisions of the Act are indeed unconstitutional, the local zoning powers in question would be restored to town's across the nation, not just Suffolk's municipalities. "The cellular phone company holds all the cards," states the petition. "Even mentioning the potentially adverse health effects associated with cellular phone towers give the applicant cause to challenge an adverse zoning decision in court. The certiorari is thus warranted to restore the [towns'] local zoning and planning powers, and to restore voice and reason to their electorate." Click
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