It's not NIMBY anymore it's BANANA

The common cause for objections to towers used to be NIMBY — not in my backyard. This has now changed in some areas to BANANA — build absolutely nothing anywhere near anything. In some cases, it seems to be even worse than that. In one zoning hearing in Colorado, the zoning was denied for a tower less than 200 feet high when the nearest home was 1.5 miles away. In that case, the local staff officials had no objection to the tower, but the applicable zoning board denied the request just because a group of the public objected, albeit without plausible testimony to show harm.

When it comes time to apply for a zoning variance or permission to build a structure, it is often necessary to present your request to a zoning board, a zoning board of appeals or a county board — sometimes more than one of those groups. Unfortunately, many of the members of those organizations are elected by the public, which means that they may be concerned about being re-elected. That concern, or the desire to simply go along with a friend's wish, may outweigh the evidence presented by professionals in the field. The situation is horrible and shows little promise of improvement in the near future.

If it is necessary for a station to build a new tower, it is probably advisable to make the first step be a visit to an area attorney experienced in zoning and land use issues. He should be able to advise you of areas that might be totally impossible for future sites. For example, some counties have decided that there will be no more towers at all, even in what has come to be considered the area tower farm, where multiple structures exist. The attorney will also be able to help you prepare your presentation in accordance with the format that the locals prefer.

If the attorney anticipates difficulties, it will be to your advantage to prepare thoroughly and to bring in all the help you may need. For example, you should have engineering assistance that is thoroughly familiar with non-ionizing radiation calculations and the various standards.

Another argument that you will face is that the tower will hurt property values. Have a licensed appraiser on hand to dispute that argument. The fact is that towers have become a part of the landscape in our society. They hurt the property values less than the loss of a nice tree. Most people will notice the presence of a tower, then ignore it totally. Towers become something that is simply there, ignored as they don't make noise, throw parties or play their radios too loud. Again, there will be those who will still insist that property values will go down regardless of any testimony that you may present.

The next problem will be hazard to aircraft. You should have a no-hazard determination from the FAA in hand prior to going before the zoning authorities. If not, you will probably be denied immediately on the basis of possible hazard. Even if you have a no-hazard determination, you may have arguments made that the FAA missed an airport. The FAA does not protect restricted landing areas, such as little private fields. Yet, those who fly from those fields can be planned on to object loudly.

The one thing that you cannot really beat is the fact that there will be a tower, and it will be visible. If those on the tower board simply don't want a tower in the area, you lose. It's that simple — unfair, perhaps, but simple. Fortunately, some states, and even some counties, have carefully defined criteria for denial or acceptance. In those cases, it may be possible to seek assistance from the courts. Again, look to your attorney to help you with that possibility.

The problem of zoning is serious. After you have fought a construction permit application through the commission, with all of the associated costs, you may still find yourself in a situation where you simply can't build the station. Obviously, the situation has been aggravated by the construction of somewhere around a zillion new towers for the wireless industry. Those things are now everywhere, and zoning boards are simply getting tired of dealing with them. Their response then becomes simply to deny everything. If the courts won't help, it is not inconceivable that you will lose the construction permit simply from being able to build in an area that will meet required coverage and spacing requirements.

There is a new organization on the horizon that may bring some help. It is called the National Antenna Consortium and will be holding an open meeting on the Monday of the NAB convention. One of their goals is to obtain legislation that will cause broadcasters to be treated fairly in zoning matters. That is going to require the cooperation and assistance of tower manufacturers, broadcast organizations and even individual broadcast groups. Obviously, something must be done to level the playing field. (I'm not quite sure what that phrase may mean, but politicians seem to like it.) It is too much to expect that the Commission will exempt broadcasters totally from local zoning. However, it may be possible to establish some reasonable criteria that will override zoning decisions that are either without technical merit or are simply capricious.

As an example, if a proponent can clearly show that there will be no non-ionizing hazard, as he will already have done in obtaining the construction permit, zoning boards should be restricted from using that as an excuse to deny an application. It isn't reasonable to expect a zoning board to grant a tower approval for a 1000-foot tower in the middle of an area zoned for single-family residences. However, maybe approval could be forced in areas zoned as agricultural or industrial. There has to be a meeting ground somewhere that will cause tower proponents to be treated fairly.

At one zoning hearing, the author observed a huge group of opponents dressed in T-shirts with a tower symbol accompanied by a circle and diagonal line. They were vocal, numerous and obnoxious. They also had no intention of accepting any presentation of factual information without regard to the technical qualifications of the presenters. Guess what — the tower was denied. No reason, it was just denied. That type of situation has to be changed. Maybe the new consortium will be able to help - it would be helpful to see broadcasters attend that meeting at NAB and get involved.

Don Markley is president of D.L. Markley and Associates, Peoria, IL.

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