Yale Lawyer: Protective Zoning IS NOT an "effective prohibition of service"

When Councilman Riemier states, "Halting cell antennas (small cells) in residential areas is an "effective prohibition of service." This is simply FALSE. 

"Contrary to what they've said refusing to allow the placement of cell towers in a way that maximizes cell tower company returns and minimizes their costs which is what they want is not an effective prohibition of service a violation of what would only occur if there is an actual actual prohibition of service and effective prohibition of all service where a community is already served." 

Please listen to this well explained by Yale trained lawyer and Gaithersburg resident here. 


My name is Sheldon Pine.  

I'll preface this by saying I'm a 1981 graduate of Yale Law School and clerked for the 11th Circuit Court of Appeals and a practiced regulatory law for 35 years since graduating from law school. That's a preface to say I want to talk about the cell tower regulations. I want to take a few valuable seconds to thank Lynn, Frank and Dennis, somewhere, because I think they've done an extraordinary job with a very complex subject and had produced very nuanced and very complex regulations. There's been a lot of contest about what the regulations should say and a whole variety of subject matters. I gave a written statement which is five single spaced pages this deal strictly with the law. I don't have enough time to talk about that but I want to make three quick legal points and I'm broadly supportive of the regulations as proposed. First the zoning power really is the power to preserve the character of the community [with] concomitant obligation to heed the wishes of the community. That's what we're talking about when we talk about zoning. It's a quintessential power of local government as the Supreme Court said the power to zone and control land use is undoubtedly broad and it's proper exercise and this is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. That's a famous zoning case called Mount Shad.

Specifically as the second point I'd like to make relating to the cell tower zoning issue. It's definitely the law of the United States Court of Appeals for the 4th Circuit which governments Maryland and the contiguous state. Definitely, the law that preserving the character of the community and heeding the legitimate wishes of the community with respect to the location of zoning cell towers are legitimate aspects of the zoning process. In addition to being core zoning values nothing in any FCC regulation short of an action by the city that actually totally prohibits cell tower servers can override the power of the city to zone. 

And finally and that's further to amplify this point. I mean we see this in the controversy over the regulations with two of the cell tower companies. 

Contrary to what they've said refusing to allow the placement of cell towers in a way that maximizes cell tower company returns and minimizes their costs which is what they want is not an effective prohibition of service a violation of what would only occur if there is an actual actual prohibition of service and effective prohibition of all service where a community is already served. There are three recent fourth circuit court of appeals cases that hold back and nothing has changed that piece of the law.

https://www.youtube.com/watch?v=xCulOxxwirM&t=27m34s