Year: 2014

Existing landscaping insufficient to meet ordinance buffer standards

hdankbar

by Hannah Dankbar

Schall v City of Williamston
Michigan Court of Appeals, December 4, 2014

William and Melanie Schall brought suit to compel their neighbors, D&G Equipment, Inc., owned by Elden and Jolene Gustafson to comply with the City of Williamston’s zoning ordinance that requires a special use permit to allow outdoor display of farm implements for sale.  The ordinance also requires a landscaped buffer zone to shield plaintiffs’ property from the sales display. The Schalls sought a writ of mandamus to compel the city and its contract zoning administrator to enforce the ordinance. The trial court found that the Gustafson’s use of their property violated the city’s zoning ordinance and ordered for the zoning administrator to enforce the ordinance.

As an initial matter the Court of Appeals affirmed that the Schalls had standing to bring the suit.  As abutting neighbors, the Schells “have a real interest in the subject matter of the controversy.  Nothing in state law indicates that private parties are limited in their ability to ask the court to abate a nuisance arising out of the violation of a zoning ordinance.

The requirements for a landscape buffer are defined in § 74-7.101 as “a minimum 15 feet wide” and “a staggered double row of closely spaced evergreens (i.e., no farther than 15 feet apart) which can be reasonably expected to form a complete visual barrier at least six feet in height within three years of installation.” The planning commission can only modify this requirement with “a written request identifying the relevant landscape standard, the proposed landscaping, how the proposed landscaping deviates from the landscaping standard, and why the modification is justified.”

In the present case, there was no “written request” to modify the ordinance standards. Even assuming that the site plan and the zoning administrator’s written and oral submissions to the planning commission were sufficient to meet this standard, and that the modified landscape included utilizing existing vegetation as part of the buffer, it must “achieve the same effect as the required landscaping.” The minimum standards of the ordinance apply except if the standard is reached with existing vegetation.

At the time of the lawsuit the buffer did not meet the standard, but the question became whether the buffer will meet the standard in three years. Based on its review of the expert testimony the Court of Appeals agreed with the trial court’s conclusion that the landscaping could not meet the standards of the ordinance and, therefore, that the Gustafsons were in violation of the zoning ordinance.

The zoning ordinance is clear and unambiguous and the trial court did not err in granting  summary disposition by finding no material disputed fact that defendants’ buffer failed to comply with the zoning ordinance and therefore was an abatable nuisance per se.

 

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News from Minnesota: Minneapolis suburb settles RLUIPA suit

Gary Taylor

The US Justice Department and the city of St. Anthony, Minnesota have settled a RLUIPA lawsuit stemming from the denial of a conditional use permit to establish a mosque.  A group of Somali immigrants formed the Abu Huraira Islamic Center in 2009 in hopes of establishing a worship center in St. Anthony.  In June 2012, the St. Anthony City Council voted 4 to 1 to deny the conditional use permit for the Islamic center, despite a recommendation by the St. Anthony Planning Commission to approve the project. At the council meeting, several St. Anthony citizens voiced their objections to the Islamic center in a way that, Islamic center proponents asserted, clearly exposed the real reason for the delay and ultimate rejection.  The residents’ comments included: “There is no other religion in the world that condones violence. Islam is evil,” and, “Where did you come from? [Go] change your own country.”

According to Fox News 9 in the Twin Cities the terms of the settlement agreement include:

– The permit will allow Abu-Huraira to use the St. Anthony Business Center for religious worship.

– St. Anthony Village will not treat Abu-Huraira or any other religious groups in a discriminatory manner through the application of its zoning laws.

– Elected leaders, city managers and certain city employees will participate in educational training about requirements of RLUIPA.

– St. Anthony Village will make RLUIPA information available to the public through its website and will report periodically to the Justice Department.

The dispute was originally discussed in our blogpost here.

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Story County District Court invalidates Ames lap dance ordinance

Gary Taylor

by Gary Taylor

Relying on Mall Real Estate v. City of Hamburg (blogged here) Story County District Court recently ruled that the Ames “lap dance ordinance” is preempted by state law.

Rebekah Beth Williams and Alijah Blue Allison v City of Ames (PDF)
Story County District Court, November 14, 2014

Dangerous Curves serves alcohol and hires women to dance while wearing bikinis or underwear.  In October 2013 an Ames police officer conducted a bar check of Dangerous Curves and observed the defendants performing lap dances while having exposed buttocks.  Ames Municipal Code Section 17.31(1) prohibits this activity.  It provides

No person appearing as an entertainer on commercial premises subject to an Iowa liquor license or beer permit, or on premises of an ‘adult entertainment business’ … shall fondle, caress or sit on the lap of any customer on said premises if the entertainer presents a performance on the premises while nude or so attired as to leave exposed the entertainer’s ….buttocks….”

The defendants were each issued a citation for violation of Section 17.31. The defendants pled not guilty and filed a motion to dismiss, arguing (1) Iowa Code 728.11 preempts Section 17.31, and (2) Section 17.31 is unconstitutionally vague and overbroad. The motion to dismiss was denied, and the District Associate Judge found the defendants guilty of violating Section 17.31.  The defendants appealed to the Iowa District Court for Story County.

Preemption.  Iowa Code 728.11 provides

In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials.  All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1, 1978.  Nothing in this section shall restrict the zoning authority of cities and counties.

Iowa Code 728.5 regulates public indecent exposure, and specifically provides
1.  An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances:
…
b.  If such person allows or permits the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress.
The District Court noted that in Mall Real Estate v. City of Hamburg the Iowa Supreme Court concluded that the legislature intended to include live nude dancing within the meaning of ‘obscene materials,’ and the effect of Section 728.11, therefore, was to preempt Hamburg’s nude dancing regulations.  The defendants asserted that Mall Real Estate makes it clear that Section 17.31 is preempted by the Iowa Code.  The City argued, however, that Mall Real Estate only works to apply the Iowa Code to nude dancing performances, while Section 17.31 addresses physical contact. According to the City, “once the dancer touches a customer the dancing is no longer a performance fitting within the definition of ‘obscene material.'” The City then has a governmental interest in protecting the health and safety of its citizens.
The District court sided with the defendants, noting that the performances in question in Mall Real Estate included physical contact between the dancers and customers and, therefore, “the Supreme Court has already determined that a live nude dancing performance, including physical contact with customers, is obscene material under the Iowa Code.”  As a result, Section 17.31 regulates obscene material and is expressly preempted by state law.
Vague and overbroad ordinance.  Even though the ruling for the defendants on the preemption argument had the effect of ending the controversy, the District Court proceeded to the constitutional question “in the event that this decision is appealed and the Appellate Courts of Iowa take another look at the [Mall Real Estate] case, which was decided by a split court.”
The District Court made quick work of this argument.  It first cited a 1977 Iowa Supreme Court case that stated “we find it difficult to believe [the defendant] seriously contends people of common intelligence would not understand the meaning of nudity or would not be able to determine when the ordinance was violated by exposing to public view the breasts, buttocks, or genitals.”  Because the term ‘buttocks’ is not vague, requiring the entire buttocks to be covered is not overbroad.  “It would be easily discernible to observe whether or not the buttock was covered either partially or fully.”
Based on the preemption determination, the District Court reversed the defendants’ convictions.
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In Montana, prohibiting specific building materials is matter for building codes, not zoning ordinance

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by Hannah Dankbar

City of Helena v Svee
(Montana Supreme Court, November 25, 2014)

In January 2009 the Helena, Montana City Commission amended its zoning ordinance to create a wildland-urban interface district (WUI district). The district overlays the City’s other zoning districts.  The WUI district, in part, provides:

A. Structures located within the wildland-urban interface district may not have exposed, wooden roofing materials, whether treated or untreated, and must have noncombustible or fire resistant roofing materials that are rated Class C or higher in accordance with ANSI/UL 790 or ASTM E 108 or any equivalent test.

B. Existing roofs that undergo renovation, alteration, or repairs that involve more than ten percent (10%) of the square footage of the affected roof plane must meet the requirements of this chapter. If the renovation, alteration, or repair involves more than fifty percent (50%) of the square footage of the area of the entire roof, then the entire roof must comply with the requirements of this chapter.

The Svees received notice that their homeowners insurance would be canceled because of the condition of their roof. Due to personal financial limits, the Svees repaired the part of the roof in most need of improvement. The project of replacing old wooden shingles with new ones began on August 12, 2011. On August 15, 2011 a city building official issued a stop work notice for the project, but the project was completed by the time the Svees received the notice. On September 8, 2011 the City filed criminal complaints against the Svees for re-roofing without a permit, these charges were later dismissed. On November 7, 2011 the City initiated a civil suit against the Svees in addition to the criminal charges. On December 6, 2011 the City filed a six-count complaint for failure to obtain a building permit; violation of the International Residential Code by failing to obtain a building permit; violation of the International Residential Code by installing new roof covering over an existing roof covering; violation of the International Residential code by using excess applications of roof covering; violation of Helena City Code by using illegal roofing materials; and creating a public nuisance. The Svees challenged the limitations the WUI district places on roofing materials, but not the creation of the WUI district itself.

Both parties moved for a summary judgement, and the City dropped all of the complaints except for the complaint citing a violation of the WUI Ordinance. The Svees claimed that the Ordinance was invalid on statutory and constitutional grounds. The District Court did not address the constitutional claim, but declared, “the Svees’ claims seeking a declaration that the City had no legal authority to adopt or enforce Helena City Code § 11-41-2 . . . are GRANTED.”  The City filed an appeal and the Svees filed a cross-appeal challenging the dismissal of their constitutional argument and the denial of attorney fees.

The first issue discussed was whether the District Court was wrong to judge § 11-41-2 as an impermissible building code, rather than a zoning ordinance. The Montana Legislature authorized cities and counties to adopt only building codes that had been created by the Department of Labor and Industry . Zoning ordinances are left to cities and counties. The District Court ruled that, “the creation of the WUI zoning district was nothing more than the adoption of  a building regulation under the guise of a zoning ordinance.” However, the Svees did not challenge the zoning district as a whole; they only challenged one section. District Court only overturned one section (§ 11-42-2). This Court found that this section of the WUI ordinance oversteps the bounds of zoning ordinances by defining which building materials can be used.

The third issue is whether the District Court erred in denying and dismissing the Svees’ constitutional arguments. The District Court ignored these claims because, the summary judgment,  “resolve[d] the case in the Svees’ favor on non-constitutional grounds.” Montana Supreme Court “has repeatedly recognized that courts should avoid constitutional issues whenever possible.” The Court agreed with the District Court on this issue.

 

**Didn’t include concurring opinion.

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Landowner negligent in discharge of stormwater over neighbor’s property

hdankbar

by Hannah Dankbar

A.D., L.L.C. v 2004 SC Partners L.L.C.
(Iowa Court of Appeals, November 26, 2014)

2004 SC Partners L.L.C. is the current owner of Morning Hills Apartments.  A.D., L.L.C. bought property adjoining Morning Hills Apartments in 2009 and the two parties have had many conflicts since then. Starting in 2009 A.D. began to receive notices from the city of Sioux City and the Iowa Department of Natural Resources to solve a public nuisance relating to soil erosion and silting. The hillside between Partners and A.D. is highly erodible. A.D. filed an equity action in July 2011 petitioning to have Partners help solve this problem. A.D. sought money judgments for past damages and an order for Partners to abate the issue. Partners answered by saying this issue was already addressed in court and solved privately with A.D. saying they would solve the problem and that the damage was their fault. Partners filed a counter claim that A.D. had failed to comply with the settlement agreement and that they should stabilize the slope and to compensate Partners for the damage to their land from the prior suit.

In 2012 Partners filed a motion for summary motion, which A.D. resisted. A.D. said that the water damage is a result of Partners’ water drainage system that changed the natural flow of water and that they have failed to maintain the system. The district court cited the “general rule” that the dominant estate is entitled to drain surface water in a natural water course of the servient owner’s land, and if damage results the servient landowner is without remedy, unless there is a substantial increase in drainage that results in actual damage. Citing Oak Leaf Country Club v. Wilson, the court also observed, “A corollary of the rule is an overriding requirement that one must exercise ordinary care in the use of his property so as to not injure the rights of neighboring landowners.”

The court found the essential issue in this case to be whether Partners is discharging water in an unnatural manner, has changed the method of drainage in such a way that it has become liable for damages, or, stated another way, whether it is exercising ordinary care in the use of its property so as not to injure the rights of neighboring landowners.

It concluded there were questions of fact as to whether or not “Partners has violated a duty to use ordinary care in the maintenance of [its] property, and whether or not a private nuisance has been established.” The district court therefore denied the motion for summary judgment.

Both sides testified that they attempted to address the problem. A.D. built a retaining pond to accommodate the water and Partners asserted they would add piping, but were waiting for payment from the 2009 suit. A variety of engineers testified that the structure was not functioning to its’ maximum capacity. The court concluded A.D.’s petition had sufficient facts to plead an alternative claim of negligence. The court decided that Partners had a duty to be aware of dangerous property conditions (the degraded drainage system) and failed to fix the problem given a reasonable amount of time.

The trial court decided that A.D. suffered $92,800 in damages, but that it had purchased the property knowing there was a problem with the drainage system and had no plans to remedy the situation. The court decided that A.D. was 65%, and Partners 35%, at fault for the property damage. Under Iowa’s Comparative Fault Act Partners argued that A.D. therefore could not recover damages; however, the court found it could not conclude that something other than Partners’ failure to abate the drainage system was the only cause of damage to A.D.’s property. The court also ruled that the easement a dominant estate has on a servient estate cannot provide a defense to a negligence claim.

The court enjoined Partners from continuing to allow its drainage system to function without repair and order it to take whatever action is necessary to ensure that its drainage system is properly functioning at its own cost. The court ordered Partners to allow A.D.  access to Partners’ property, if required, to tie into a properly functioning drainage system, which will allow storm water to safely traverse A.D.’s property.

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Iowa Supreme Court refuses to extend protections of implied warranty of workmanlike construction

Gary Taylor

by Gary Taylor

Luana Savings Bank v. Pro-Build Holdings, Inc. and United Building Centers
(Iowa Supreme Court, December 12, 2014)

Rosauer Corporation v. Sapp Development, LLC et al.
(Iowa Supreme Court, December 12, 2014)

In two cases decided December 12, the Iowa Supreme Court addressed the scope of the implied warranty of workmanlike construction.  This is a common law remedy developed by the courts “to protect an innocent home buyer by holding the experienced builder accountable for the quality of construction.”  When introduced by the Iowa Supreme Court in 1985 as a “logical extension of the implied warranty of habitability for a tenant leasing a home.”  The primary policy reason for these warranties is the “protection of innocent homeowners as consumers…to address the disparity in bargaining power between the consumer and the sophisticated builder-vendor.”

In Iowa, the elements of the implied warranty of workmanlike construction are:
(1) That the house was constructed to be occupied by the warrantee as a home;
(2) that the house was purchased from a builder-vendor, who had constructed it for the purpose of sale;
(3) that when sold, the house was not reasonably fit for its intended purpose or had not been constructed in a good and workmanlike manner;
(4) that, at the time of purchase, the buyer was unaware of the defect and had no reasonable means of discovering it; and
(5) that by reason of the defective condition the buyer suffered damages.

In Luana Savings Bank v. Pro-Build Holdings, Inc. and United Building Centers  the Court was asked to extend the warranty to protect a bank that had acquired a mold-infested apartment complex by deed in lieu of foreclosure.  Luna Savings Bank had financed the construction of two apartment buildings that, after a series of transactions, came to be owned by Shalom Rubashkin, an owner of Agriprocessors, Inc. in Postville, who was eventually indicted, convicted, and sentenced to prison for bank fraud and other financial and  immigration crimes after the federal Immigration and Customs Enforcement raid on Agriprocessors in 2008.  In June 2009 Rubashkin gave the bank a deed in lieu of foreclosure in satisfaction of the bank’s mortgage interest in the apartment complexes.  It was then that the bank discovered substantial black mold in the apartments, resulting from improper installation of window and air conditioning units, and inadequate attic ventilation.

After determining that the bank’s claim failed the 5-part test set forth above, the court found that none of the policy justifications for the implied warranty of workmanlike construction justified extending it for the protection of lenders.  A defective dwelling is not the same problem for a lender as it is for a home dweller.  Furthermore, the lender has other ways of protecting itself in a transaction, and it is not the case that the lender is in an unequal bargaining position relative to the builder.

In Rosauer Corporation v. Sapp Development, LLC et al. the court refused the protections of the implied warranty to the purchaser of a residential lot without a home or other structure.  In this case the plaintiff, a contractor-developer, bought a lot from a realtor to build townhomes for sale. The contractor alleged that the lot had improperly compacted backfill, requiring extensive additional work to get it ready for construction. Plaintiff sued the original developers whose contractor had performed the substandard soil work.

The court applied the 5 elements listed above, and found the plaintiff’s claim lacking in all respects. As in Luana Savings, the court then examined the policy justifications for the implied warranty of workmanlike construction and found that they did not demand the extension of its protection to this purchaser, who was in no way in a similar position to an innocent homebuyer.

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FCC ruling Part IV: Shot clock clarification and other matters

Gary Taylor

by Gary Taylor

While the bulk of the October 21 FCC ruling addressed Section 6409(a) which addresses collocation, modification, and replacement of wireless facilities, it also contained a section meant to clarify the 90- and 150-day presumptive deadlines (the “cell tower shot clock”) set forth by the FCC in a 2009 ruling, and a section to address industry concerns about local governments giving preference to siting wireless facilities on local government property.

Shot clock clarifications. Since 1996, Federal Telecommunications Act (FTA) Section 332(c)(7)(B) has required local governments to act on applications for personal wireless service facilities within a “reasonable period of time.” The 2009 order set presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing personal wireless service antennas on existing towers) and 150 days for all other applications. The ability of the FCC to set these rules governing local review was approved by the US Supreme Court in 2013.

The FCC clarified that the presumptively reasonable 90- and 150-day deadlines begin to run from the date of filing (with the exceptions noted below), the application. The deadlines may be extended only by a local government determination that the application is incomplete. The local government must inform the applicant of the incompleteness within 30 days of the initial filing, and must clearly and specifically delineate in writing the missing information. The clock will resume when the information is provided, but may be tolled again if the local government notifies the applicant within 10 days that the application remains incomplete. This notification cannot contain requests for new information beyond what was previously requested.

How does the 2009 ruling square with the October 21 ruling, particularly with regard to the deadlines for action on collocations (discussed in yesterday’s blogpost)? The FCC first pointed out that Section 332(c)(7) deals only with personal wireless service facilities (cell phone equipment), which is a much narrower focus than “wireless facilities” – the focus of Section 6409(a) of the Spectrum Act. The FCC also noted that some collocation applications under Section 332(c)(7) do not constitute “eligible facilities requests” under Section 6409(a). Recognizing that the provisions cover different (though overlapping) types of applications, the FCC declined to make any “changes or clarifications” to the 2009 ruling that would harmonize it with the October 21 ruling. Local governments are thus left to muddle through the distinctions in collocation applications to determine the appropriate timeline to which they must adhere.

DAS facilities. The FCC further clarified that the shot clock deadlines apply to Distributed Antenna Systems (DAS) applications. DAS are small facilities that are increasingly being deployed to fill in coverage gaps and enhance capacity in congested areas (urban corridors, stadiums, hotels, convention centers, etc.)

Preference for deployment on government property. The wireless industry has expressed concerns over local governments giving preference to siting wireless facilities on local government property, arguing that it unreasonably discriminates among providers by limiting the siting flexibility of subsequent wireless entrants in a given area. The FCC recognized that some such local policies – those that “pressure” applicants to use local government property, coupled with regulations that make it nearly impossible to site facilities elsewhere – may be discriminatory as applied. Nevertheless, the FCC declined to find that such preference is discriminatory as a matter of course, and so refused to make a rule that municipal property preferences are per se unreasonable.

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FCC ruling on collocation explained, Part III

Gary Taylor

by Gary Taylor

Section 6409(a) of the Spectrum Act provides:

[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

This post will focus on the FCC’s guidelines for the review of applications for collocation, modification, and replacement of wireless facilities. Again, the FCC ruling generally sided with the wireless industry with its permitting and timeline guidance.

Applications. The FCC ruling does permit local governments to require an application to allow local officials to determine whether the proposed facility changes are covered by Section 6409(a). The FCC found that nothing in 6409(a) indicates that local governments must approve requests merely because applicants claim they are covered. The ruling, however, prevents local governments from requiring any documentation beyond that needed to determine whether the request is covered by Section 6409(a); local governments may not require documentation “proving the need for the proposed modification or presenting the business case for it.”

Timelines. The FCC also established a “specific and absolute timeframe” for processing of requests under Section 6409(a): 60 days, including review to determine whether an application is complete. If an application has not been approved or denied within 60 days from the date of filing (with the exceptions noted below), the request will be deemed granted. The “deemed granted” becomes effective after the applicant notifies the local government in writing that the applicant is invoking this right.

The 60-day clock may be extended only (1) by mutual agreement between the local government and applicant, or (2) by a local government determination that the application is incomplete. Under (2), the local government must inform the applicant of the incompleteness within 30 days of the initial filing, and must clearly and specifically delineate in writing the missing information. The clock will resume when the information is provided, but may be tolled again if the local government notifies the applicant within 10 days that the application remains incomplete. This notification cannot contain requests for new information beyond what was previously requested.

Remedies. The FCC does not want to be the forum for resolving disputes over Section 6409(a), and therefore stated that “the most appropriate course for a party aggrieved by operation of Section 6409(a) is to seek relief from a court of competent jurisdiction.”

Non-application of 6409(a). Finally, the FCC determined that Section 6409(a) is meant to apply to local governments only when acting in their role as land use regulators. As such, Section 6409(a) does not apply when local governments are acting as property owners; when, for example, city or county governments are leasing space for the installation of wireless equipment on rooftops, water towers, power poles, or other government-owned property.

In the final blogpost (tomorrow) on this topic, I will cover the remaining sections of the FCC ruling that do not address Section 6409(a), but rather are meant to clarify the application of the shot clock that was affirmed by the US Supreme Court in 2013.

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US Supreme Court declines to take Grain Processing Corporation nuisance case

Gary Taylor

The US Supreme Court has declined to hear Grain Processing Corporation’s appeal of the Iowa Supreme Court’s decision that neither the Federal Clean Air Act nor state emissions regulations preempt nuisance suits brought by neighbors complaining of the chemicals and particulate matter from the company’s facility in Muscatine. The original blogpost of the Iowa Supreme Court case is here.

A brief article from of all places, Fox News Montana.

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FCC ruling on collocation explained, Part II

Gary Taylor

by Gary Taylor

Section 6409(a) of the Spectrum Act provides:

[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

In an attempt to clarify the ambiguities of Section 6409(a), the Federal Communications Commission (FCC) issued a new rule of interpretation on October 21, which takes effect 90 days from that date. Several key definitions were addressed in my previous post. This post continues with a review of still more definitions, specifically the meaning of “collocation,” “modification,” “replacement” and “substantial change.”

Collocation. Modification. The FCC interpreted “collocation” to mean “the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.” This definition encompasses the initial mounting of equipment on a tower or base station. In crafting this definition the FCC rejected the argument of local governments that collocation should be limited to the mounting of equipment on structures that already have transmission equipment on them. “Modification” “includes collocation, removal, or replacement of an antenna or any other transmission equipment associated with the supporting structure.”

Replacement is interpreted to include only the transmission equipment, and not the structure on which the equipment is located, even under the condition that replacement would not substantially change the physical dimensions of the structure. The FCC acknowledged that replacement of an entire structure might affect local land use values differently than the addition, removal, or replacement of transmission equipment only.

Substantial change. In crafting guidance for what constitutes a “substantial change” to the physical dimensions of a tower or base station, the FCC chose to adopt an objective, measurable standard as opposed to allowing local governments to conduct more individualized, contextual consideration. In doing so, the FCC rejected the argument that in some instances a small physical change could lead to a substantial change in impact.  A “substantial change” is thus any of the following:

For towers outside the public right-of-way, a “substantial change”

  • increases the height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater, or
  • protrudes from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, which ever is greater.

For towers in the right-of-way, and all base stations, a “substantial change”

  • increases the height of the tower or base station by more than 10% or 10 feet, whichever is greater, or
  • protrudes from the edge of the structure more than 6 feet

Changes in height are to be measured from the original support structure in cases where the deployments are or will be separated horizontally. In other circumstances, changes in height are to be measured from the dimensions of the original tower or base station and all originally approved appurtenances, and any modifications approved prior to the passage of the Spectrum Act.  The changes are measured cumulatively; otherwise a series of small changes could add up to a cumulative change that exceeds the “substantial change” threshold.

For all towers and base stations, a “substantial change”

  • involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets;
  • entails any excavation or deployment outside the current site of the tower or base station;
  • defeats the existing concealment elements of the tower or base station; or
  • does not comply with conditions associated with the prior approval of construction or modification of the tower or base station unless the non-compliance is due to any of the “substantial change” thresholds identified above.

State and local governments may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.

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