Cell tower discussion towers over Glenwood
July 18, 2018
Many Glenwood Springs residents do not like the idea of cell towers possibly moving in as their new, next-door neighbors. However, while city staff recognizes these concerns, they also say they have very limited legal authority in keeping them out.
Laws at the federal and state level grant the personal communication industry leeway as broad as wireless broadband when it comes to locating facilities.
The issue came to light with a set of proposed zoning code amendments and zone district consolidations that went before Glenwood Springs City Council on Thursday night. Cell towers are listed among the uses in those zone districts.
Several members of the public said they planned to attend the meeting, but there may be little they can do to prevent such uses in the future.
According to a fact sheet by the Federal Communications Commission dated April 23, 1996 — the year the United States Congress passed the Telecommunication Act — Section 704 "prohibits any action that would discriminate between different providers of personal wireless services, such as cellular, wide-area SMR and broadband PCS.
"It also prohibits any action that would ban altogether the construction, modification or placement of these kinds of facilities in a particular area."
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In other words, if the provider wants to connect such "facilities" in a particular area, regardless of zoning, they could. The same rule applies to commercially and residentially-zoned areas in Glenwood Springs; if the service provider wants it there, federal law will not get in their way.
"If we say ban cell towers in every residential zoned district and a provider says … this is the only place for us to provide coverage to your community, is to put it in a residential neighborhood, pretty much they are going to put that tower in a residential neighborhood," Glenwood Springs City Attorney Karl Hanlon said. "I can't make it effectively impossible for them to provide their services, or even unreasonably difficult."
In addition, even recent state law, House Bill 17-1193, also reiterates, among other requirements, "small cell facilities often may be deployed in the public rights-of-way," and defines the word tower as, "any structure built for the sole or primary purpose of supporting antennas licensed or authorized by the federal communications commission and the antennas' associated facilities."
The state Legislature in 2017 called it a matter of "statewide concern," Hanlon said.
"Which means it preempts the home-rule municipality's authority by invoking this idea that it is of statewide concern that they be regulated, that they are required to be a permitted use in every zone district. So in other words, we don't have a choice," Hanlon explained.
Challenging the laws, too, would result in the city getting sued as fast as a 4G LTE smartphone's internet speed, and the chance it stands at winning resembles that of cell service in the Glenwood Canyon — slim to none.
Outside of making sure the contractor complies with minimal regulations, like camouflaging to the best of their abilities, the presence of such telecommunication facilities, the city, frankly, has its hands tied.
"We don't have a lot of control over this, and so we are exerting as much control as we possibly can," Hanlon said.
Rick Davis, a former Glenwood Springs City Council member, recently penned a letter to the current City Council, stating how allowing such "towers and other cell facilities," in residentially zoned areas may cause, among other issues, "property devaluation of approximately 20 percent and potential resale problems."
The former councilor, however, also acknowledged the legal hurdles the city faces.
"There's some certain amount of shackling that has been done by the (federal) government, and there's a certain amount of shackling that's been done by the state with the laws they have passed," Davis told the Glenwood Springs Post Independent.
"The question becomes, how do you protect the citizens within the law and how do you not just jump through hoops in compliance with the law but also protect your citizens?" he said.