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September 9, 2000 from Ande Smith of Pierce Atwood to Wendy Walker regarding Limington Proposed Personal Wireless Service Facilities and Towers Ordinance













*Also admitted in
New Hampshire
One Monument
Portland, Maine

September 9, 2000



Wendy Walker, Chairman
Limington Planning Board
Town of Limington
Route 11, P.O. Box 240
Limington, Maine 04049-0240

Proposed Personal Wireless Service Facilities and Towers Ordinance

Dear Chairman Walker:

        On behalf of York Construction, we offer the following comments on the proposed Personal Wireless Service Facilities and Towers Ordinance (the "proposed ordinance"). The proposed ordinance contains serious legal deficiencies, represents poor public-policy choices, and is internally inconsistent. Accordingly, we urge the Planning Board to recommend to the Town Selectmen that the proposed ordinance not be placed on the ballot and, if it is, that you recommend its disapproval by voters.

        A serious legal issue raised by the proposed ordinance is the questionable constitutionality of its retroactivity provision. The proposed ordinance purports to apply to "pending proceedings" at the time of filing of the proposed ordinance with the Town. This provision is clearly directed toward a single developer: York Construction. Because York Construction has received permits to construct four towers in Limington, and may legally rely on those permits, application of the proposed ordinance to those approved towers would retroactively reverse a valid approval by the Limington Planning Board and strip York Construction of its rights, including the economic benefit, of those approved projects.

        This kind of government interference with private property rights and reasonable, investment-based expectations (particularly in light of the unhidden targeting of a specific developer), violates both the U.S. Constitution and the Maine Constitution. Enforcement of the proposed ordinance would face a serious challenge in court. In fact, the Town's attorney, Jim Haddow, indicated that a similar provision in another initiated ordinance was constitutionally defective in an email to the Planning Board on August 29, 2000.

Ms. Wendy Walker
September 9, 2000
Page 2

        A second serious legal defect in the proposed ordinance is that some of its provisions are preempted by the federal Telecommunications Act of 1996 (the "TCA"). In part, that law provides that municipal ordinances may not have the effect of prohibiting towers and related facilities and may not regulate radio-frequency ("RF") emissions from such facilities. Although the proposed ordinance recognizes these limitations, several of its provisions clearly run afoul of the TCA's limit on municipal authority.

        First, by limiting towers to a height of 10 feet above nearby houses or the tree canopy, the proposed ordinance would effectively require numerous towers and associated facilities to obtain adequate coverage in a given area (and might even prevent some service altogether because of antennae size). By vastly increasing the number of towers, the ordinance could effectively prohibit coverage in the Limington area by unreasonably raising the cost of building necessary infrastructure.

        Second, the prohibition on tower lighting also potentially works to discriminate against towers. Although York Construction's approved towers do not require lights, such a provision could effectively prohibit other towers of the necessary size, thereby prohibiting certain kinds of coverage in the area. It also is contrary to the laws administered by the Federal Aviation Administration which require lighting on structures above a certain height.

        Finally, the TCA prohibits municipal regulation of RF emissions from towers to the extent that they meet federal guidelines. Notwithstanding federal law, the proposed ordinance would impose RF monitoring and reporting requirements, which appear to run afoul of the plain language under the TCA.

        In addition to its legal failings, the proposed ordinance also represents bad public policy. Municipalities should not adopt ordinances that are aimed solely at particular individuals, particularly when the ordinance would seek to remove legal rights acquired by that individual. Such ordinances are unfair and do not represent deliberative planning by the Town. In addition, municipalities should be reluctant to adopt ordinances that are known to have severe legal faults. Adoption of such ordinances leads to confusion among the citizens and municipal officials, complicated enforcement proceedings, and, ultimately, expensive and time-consuming legal suits.

        The proposed ordinance also is flawed because it is internally inconsistent in achieving its aims. Most significantly, the proposed ordinance would limit tower heights to no more than 10 feet above nearby houses or the tree canopy, but also contains a detailed process to co-locate wireless services so as to minimize the number of towers built in Limington. These two requirements are mutually exclusive. If all towers were limited to 10 feet of "clear air," very few (if any) telecommunications services could be co-located on them because a 14-foot separation between antennae is the standard engineering requirement -- meaning the lower antennae would

Ms. Wendy Walker
September 9, 2000
Page 3

be in the trees! One does not place antennae below the tree line because there would be obviously limited coverage. This kind of inconsistency suggests that the proposed ordinance has not been well thought out, and therefore, should not be recommended to the voters of Limington.

Ande A. Smith
Ande A. Smith


Limington Planning Board Members
York Construction

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