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Chapter 5: Base Stations and Land Use Issues • How do localQ As base Stations become more common in urban and cellular transmission tower may require a zoning zoning codes suburban landscapes, local residents may want to variance,especially n a residential neighborhood. treat base stations? know what local zoning rules guide base station place- In New Jersey,a state used as an example during merit. They may also wart to know if the facii<y makes the symposium,the municipal land use law allows a good neighbor,or if it could affect their property values for two kinds of variances. Planning boards process ABase stations are or otherwise affect their lives other than by providing requests for"C"variances,also lmown as bulk vari- usuaIiy treated reliable wireless communications services. ances.Zoning boards administer"D"variances. as any other public In this chapter,we will answer the following questions Grant of a"C"variance requires a majority vote utility infrastructure. of the quorum of a planning board present at each about base stations and local land use issues: Courts have recognized meeting.Grant of a"D"variance requires five out that base station facil- ■ How do local zoning codes treat base stations? of seven votes on the zoning board.Thus, if only ities are "inherently ■ Could a base station tower fall over in a storm? five members attend a given meeting of a zoning beneficial"uses of ■ How will the base station's appearance fit into the board,grant of a"D"variance requires a unani- land. community? mous vote.Therefore,carriers prefer to apply for ■ Will a base station affect nearby property cetlues? "C"variances whenever possible. A. BASE STATIONS AND ZONING CODES Each type of variance has a different burden of proof.That for a"D"variance is more stringent. State laws and municipal zoning and building The preamble of the municipal land-use law sets codes govern the placement and building of wire- forth the special circumstances required for grant of less transmission base stations.These codes guide a"D"variance.A"D"variance is appropriate for virtually every step of the siting and construction uses deemed to promote the general safety,health, process.They specify acceptable potential locations and welfare of the citizens,and deemed to provide and height limitations.Sometimes, they even pre- for the efficient and best use of space from various • scribe required notice to and consultations with perspectives.Obtaining a"D"variance in New neighboring residents.Court decisions interpreting Jersey also requires the carrier to satisfy the law's zoning codes also shape which construction activi- "not substantially impair"clause.That is,that the ties are permissible in a given area. facility must not substantially impair the intent and 1. Base Stations as Public Utilities purpose of the zoning plan or ordinance.Despite the tougher standards for obtaining a"D"variance, _. Zoning laws usually specify what"uses"are appro- cellular carriers can usually satisfy those standards. priate for each parcel.In terms of use,zoning codes 3. Zoning Variances and Inherently Beneficial Use classify wireless base stations either as a commercial use or as a public utility.Cellular carriers strive for The criteria for a"D"variance(or its counterpart public utility status because that usually provides in other jurisdictions)have lead to debate and liti- more flexibility under the zoning code. Public gation over what forms an"inherently beneficial utility status means that a cellular carrier can build use."Cellular carriers assert that their facilities are a base station in almost any area,as a"permitted an inherently beneficial use because they create use,"or as a"conditional use."(A conditional use wireless communications networks. Base stations, requires the grant of a special permit or variance.) therefore,not only improve the area's communi- Tower and antenna height then remain as the pri- cations infrastructure,but also enhance the public mary criteria of the legality of the proposed facility good,including public health and safety, in ways in a given location.However,in states such as New that otherwise would not be possible.The ability Jersey,the municipal land-use law does not define of motorists to report accidents,resulting in speedier a"public utility."This has lead a few municipalities emergency response,is but one example. in that state to challenge the idea that cell-1112r A base station that is inherently beneficial would carriers are public utilities.However,zoning auth- satisfy the municipal land use law's"special reasons" orities usually accept base stations as public utility infrastructure. criteria.The carrier would then only have to satisfy the"not substanrially impair"criterion.The Appellate 410 - 2. Zoning Variances Cour of New Jersey,in an important decision known Most municipalities as the"Hazlet"case,ruled that a cellular base station ipal' ' regulate the permissible heights is an inherently beneficial use of land. of structures in most zoned areas.A structure like a