With concerns about what properties would be able to have cell towers amid a discussion about a new ordinance to regulate them, Councilman Filipe Pedroso focused Monday on whether such an ordinance would actually hold up in court.
The township council held its first discussion Monday about a proposed cell tower ordinance to maintain where towers can be built throughout the township. The ordinance, which has not yet been introduced, focuses on what zones cell towers can be built in, and how far they must be from residential areas.
But Pedroso questiond whether the federal courts recognize these kinds of towers in cell tower litigation cases, such as the current one against the township concerning a proposed 130-foot cell tower at the Green Knoll Volunteer Fire Co.
No matter if the ordinance is approved, it cannot be used in the litigation between T-Mobile and the zoning board because it was filed after the application was already complete.
"Are there similar ordinances in other towns, and have they been supported by the courts?" Pedroso asked. "I would like us to go through this ordinance, but I would not want it to be struck down in federal court."
Michael Camerino, attorney for the township, said the courts do recognize these ordinances and encourage townships to adopt them.
"Courts have criticized municipalities for not having the ordinance," he said. "You are better off with an ordinance than without."
"The attorney for the board of adjustment has indicated that the zoning board has supported this type of ordinance," he added. "This one seems to be thoroughly vetted, and I agree with the procedures you are adopting."
The ordinance, among other regulations, discusses the fact that recreation and open space areas are excluded from being able to have cell towers, and the council said they would like information on whether that includes county open space properties and municipal ones.
"I would like a list of properties that are township-owned that would be excluded and those that would still be potential sites for towers," said councilman Matthew Moench.
Councilman Howard Norgalis said he is also interested in limiting the number of miles between towers and residential zones.
"In some documents there was a limitation on the number of miles, and I think we should do co-location as much as possible," he said. "But I think it is incumbent on us to limit the distance to residential properties."
Council members said they would also be interested in having some document filed from cellular companies each year with information as to whether individual cell towers are still active.
Township administrator James Naples said it will probably be obvious because the companies are required to maintain the area around the tower for access to equipment.
"But that's something legal we should look at," he said.
Council president Allen Kurdyla said he is concerned about too much conversation on the topic of the ordinance because of the pending litigation in federal court.
"I still want to express my concern over the litigation," he said. "I don't know what problems there could be from the lawsuit, and I have a concern about that."
The council opted not to introduce the ordinance at this point while more information is gathered. The next step is to send the ordinance to the planning and zoning boards for comments from each entity.
What kinds of advisories do you think should be included in an ordinance to manage the location of cell towers?