With Fashion Week having recently concluded in New York City, we learned that camouflage fatigues and outfits are "in" for the new season. Camouflage is also in for communications towers and antennas. An increasing number of municipalities have enacted ordinances that permit them to require cellular companies to camouflage or disguise their facilities. Such concealment tactics are commonly referred to as "stealth" technology. Stealth technology involves the use of innovative siting techniques such as artificial trees, flagpoles, clock towers, bell towers, steeples, light poles and similar design mounting structures that camouflage or conceal the presence of antennas or towers. Many municipalities are aware of these options and have revised their codes to require concealed towers or other stealth technology. Moreover, carriers seeking site permits may be the first to raise the option of a concealed facility, notwithstanding the fact that these installations may be substantially more expensive.

To take just a few examples, the zoning ordinance for the Town of Hebron, Connecticut, provides that towers be treated with an architectural material so that it is camouflaged to resemble "a woody tree with a single trunk and branches." According to the ordinance, the town may require that the provider propose and implement "other available" stealth measures acceptable to the town to reduce the visual impact. The City of Covington, Washington mandates that wireless facilities be screened or camouflaged by employing the "best available technology." Similarly, the Board of County Commissioners in Martin County, Florida declared that one of the county's purposes in regulating telecommunications services was to minimize adverse visual impacts of towers by setting minimum standards for "innovative camouflaging techniques."

The Telecommunications Act of 1996 expressly preserves the traditional authority enjoyed by state and local government to regulate land use and zoning, but places several substantive and procedural limits upon that authority when it is exercised with respect to personal wireless service facilities. Under Section 704 of the Act, local governments are authorized to make decisions regarding the placement and construction of personal wireless service facilities. The Act's principal limitations on local zoning authority are found in Section 332(c)(7)(B)(i), which provides that state and local regulation of "the placement, construction, and modification of personal wireless service facilities . . . (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services." In addition, no state or local governmental body may regulate wireless services on the basis of radio frequency emissions if the services meet Federal Communications Commission standards.

The traditional zoning practice is to confine wireless facilities without restriction in industrial zoning districts, to allow, with some restrictions, such facilities in business and commercial districts, and to require setbacks and other restrictions in residential districts. In response to the Act, many municipalities have enacted new zoning ordinances or modified existing ones. Recognizing that an outright ban on towers would violate Section 332, the municipalities have drafted new ordinances so that the visual impact of the proposed wireless facilities is minimized in a number of other ways. Some common regulations include: (1) requiring stealth (or camouflage) towers and antennas; (2) encouraging collocation; (3) imposing significant setbacks of at least 150 percent of the tower's height; and (4) limiting tower heights to no more than 10-20 feet above other features such as trees and buildings.

Thus far, telecommunications companies have not raised legal concerns with respect to the stealth requirements that local governments have imposed on them. Indeed, there has been only one case that directly discussed the validity of a stealth requirement. In Omnipoint Communications Enterprises, L.P. v. Warrington Township, 63 F. Supp. 2d 658 (E.D. Pa. 1999), the Township enacted an ordinance which directed carriers proposing to construct communications towers to demonstrate that they are utilizing "stealth technology to the greatest extent possible" in the design of such towers. The stealth requirement imposed an additional cost of $150,000 or about one-third the cost of the entire project. Omnipoint raised, among other things, the issue of whether stealth requirement violated the Act (1) by having the effect of prohibiting the provision of personal wireless services; and (2) by unreasonably discriminating among functionally equivalent providers. The court rejected both arguments and held that the stealth requirement did not violate the Act. However, the court did leave a door open when it stated that "the imposition of certain conditions that result in extreme financial hardships might 'have the effect' of prohibiting the provision of wireless services."

The fact that Warrington Township is the only case which addresses the validity of a local ordinance's stealth requirement is noteworthy in itself. It may suggest a turning point with respect to the often contentious relationship between the wireless industry and local government. On the one hand, communities have embraced stealth technology because moratoria are no more than a short-term solution to a very complicated land use issue. Moreover, local governments know that they cannot just sit back and deny all applications. Conversely, wireless providers have not generally challenged stealth requirements because they recognize that the Act's stated objective of outfitting a national telecommunications network as rapidly as possible does not trump the land use concerns of local government. Where there are legitimate aesthetic concerns (i.e., historic districts, adjacent parkland), carriers believe that stealth technology may be appropriate to mitigate the impact of proposed facilities on the landscape. Indeed, providers would be more indulgent of stealthing applications where the costs of such applications are shared among other co-locating carriers. Most importantly, the emergence and acceptance of stealth technology motivates the parties to work together and encourages the carriers to propose innovative designs that are more consistent with the character of the communities in which they tend to operate.

Carriers and zoning boards may differ on the degree of stealthing which will be required. For example, if a carrier has decided that a coverage gap can be filled only by a 100-foot "stealth" tower, the issue for local government then becomes whether the company considered less intrusive options such as the use of additional smaller-scale towers, which may be prohibitively expensive and which would have to clear the tree line to provide coverage. Although unpopular with both telecommunications providers and local governments for its inherent uncertainty, the issue of the degree of stealthing to be required may well have to be addressed "on a case-by-case basis." There are few, if any, bright line rules that can be drawn in this area. Much depends on the going-forward costs of stealth technology, the development of new stealth applications, the carrier's desire to offer optimal service to all current and potential customers, the diverse characteristics of the community, and local governments' willingness to mandate and contest the least intrusive option technically available.

Notwithstanding the very fact-specific nature of these issues, the leading cases on cellular tower siting do suggest one general rule - namely, that the more options the carrier has considered, the more likely the court will find that the siting cannot be prohibited. In New York City, two creative approaches have been taken recently. In one matter before the Board of Standards and Appeals, AT&T Wireless camouflaged a tower in a lighthouse-type design on a bluff in Staten Island and placed accessory communications equipment needed to operate the cell site on the inside of the lighthouse. The Board also approved a Sprint application to erect a monopole in a flagpole-type design so as to blend in with the residential community.

As the need to build out wireless facilities continues apace into new areas of coverage and as zoning boards realize that their opportunities to effect the placement of wireless facilities are limited by statute and court decision, we will see greater emphasis on stealth technology in urban, suburban and rural areas. The opportunities of creative architecture and design may result in towers camouflaged as totem poles, pine trees and palm trees. Those stealth palm trees will be the trees that don't sway in the hurricane!

About the Authors
David E. Bronston is a partner and Andrew D. Fisher is an associate in the New York City office of Wolf, Block, Schorr and Solis-Cohen LLP. The authors represent telecommunications service providers that have an interest in cases discussed in this article as well as property owners in transactions with telecommunications entities. The authors may be reached at 212-986-1116 or by email at dbronston@wolfblock.com and afisher@wolfblock.com.