Cell Tower Appeal Memorandum 9-15-2011

8/4/2019 Cell Tower Appeal Memorandum 9-15-2011

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B E F ORE T HE MARYL AND S T AT E B OARD OF E DUCA T I ONJANIS ZINK SART UCC I, ET AL. ,

Opposition to Respondent'sAppellantotion to Dismissandv.ross-M otion for Summ aryRev ersal of Responden t'sMONT G OME RY COUNT Y B OARD OFctionEDUCATION, Respondent

Jennifer Kerchaert, Janis Zink Sartucci, Louis Wilen, Andrea Cernich, and HelgaSmtis (App ellants) oppose the motion of the M ontgomery County Board of Education(Local Board) to dismiss their appeal. Appellants also cross-move for summary reversalof the Local Board's decision that is the sub ject of their appeal.In supp ort of this opposition and cross-motion, we state:There are n o genuine issues or disputes of material facts regarding the illegality of theLocal Board's decision to enter into an easement related to an unlawful lease of schoolproperty for a cell tower use.The issue presented is purely a legal question of the Local Board's authority to enter intoan easem ent to support an un lawful lease for a cell tower.For reasons set forth in the attached legal mem orandum , the Local Board is not entitled tojudgmen t as a matter of law on its motion, and we are en titled to judgmen t as a matter oflaw.


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herefore, we request that the State Board d eny the Local B oard's M otion to D ismissotion for Summ ary Rev ersal of the Lo cal Board's action.


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BEFORE THE MARYLAND STATE BOARD O F EDUCATIONx

JANIS ZINK SARTUCCI ET AL. ,Appellant

v .MONTGOMERY COUNTY BOARD OFEDUCATION,

RespondentMEMORANDUM IN OPPOSITION TO LOCAL BOARD'S MOTION TODISMISS AND IN SUPPORT OF APPELLANTS' CROSS MOTION FOR

SUMMARY REVERSAL

Jennifer Kerchaert, Janis Zink Sartucci ,Louis Wilen, Andrea Cernich, and Helga Sm its(Appellants) submit this mem orandum in opposition to the motion of R espondentMontgomery County Board of Education (Local Board) to dismiss and/or motion fo rsumm ary affirmance. Ap pellants also subm it this mem orandum in support of theircross-motion for summary reversal of the local board's decision that is the basis of thisappeal pursuant to Title 13 Code of M aryland, Regulation 13A.0 1.05.

SummaryIn 1997, the Local Board wrongly concluded that the Federal

Telecommunications Act of 19 96 required that it make school real property av ailable toprivate parties to erect commercial cell towers. In fact, the Act does not require this and,under M aryland law, a local school lacks the authority to do so.


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Five years ago, staff at the Local Board, without board approval, unlawfullyleased school property at Captain James E . Daly Elementary School to a private party toerect a telecommunications facilities tower for com m ercial use. (Exhibit D)

On June 16, 2011, the Local Board approved an easement to facilitate the celltower tenant's unlawful use of the D aly Elementary School property. AppellantKerchaert has standing to appeal this decision to the State Boa rd: she l ives within 1/10 t hof a m ile (approximately 600 feet ) of the school and is within the school boundaries; herchildren have attended the school and h er future children will attend there; according tothe methodo logy of the Maryland Tax A ssessment Board, the cell tower has negativelyimpacted her property value. (Exhibit E) App ellant K erchaert and the other Appellant'srespectfully request that the State Board exercise its visitorial powe rs over the local boardand declare the easement, as well as the under lying lease, null and void.

On the same day that the school board approved the easement for DalyElementary School, the local board approved easements for telecommunicationstransmission facilities leases of real property that staff, without the local board'sapproval, had entered into for the p roperty at five high schools. Appellants haveadministrative standing to app eal these easements an d respectfully request that the StateBoard declare those easements, as well as the underlying leases, null and void.

Quest ions PresentedThis app eal raises the following questions un der M aryland law:Standing

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1. Does a parent who resides within the boundaries of a Montgomery County elementaryschool have standing to appeal to the State Board an easement granted by the local boardthat supports an unlawful lease of real property at the school?Short Answer: Yes. An Appellant who lives nearby an elementary school and within thatschool's attendance boundaries has standing to appeal to the State Board the local board'sland use decision related to that school real property.2. Does Maryland law allow all parties to have standing if one party has standing?Short Answer: Yes. Maryland Courts have long observed that if one party if found tohave standing, the court will not inquire as to the standing of other parties.3. Does a Montgomery County resident have administrative standing to challenge a localboard's decision to the State board?Short Answer: Yes. Under principles of administrative standing, an Appellant hasstanding to appeal a local board's decision to the State Board.Merits4. May a local board lease its real property to a private entity for a purpose unrelated toits education mandate?Short Answer: No. The Maryland Attorney General has consistently concluded in legalopinions issued in 1991 and 2006 that a local board lacks the legal authority to lease itsproperty to a private entity for a purpose unrelated to its education mission.5. Did the 1996 Federal Telecommunication Act preempt Maryland law to require a localboard to lease its real property to a private party to install a telecommunications facilitiestower (cell tower) that is unrelated to its education mandate?

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Short Answer: No. While the 1996 Federal Telecommunication Act preempts Marylandlaw with respect to local zoning authority, it does not preempt Maryland law to require alocal government owner of real property such as a local board to lease its real property toa private entity that wishes to install a cell tower.6. Did the 1996 Federal Telecommunication Act preempt Maryland law to give a localboard authority to lease its real property to a private party to install a cell tower wheresuch authority does not exist under Maryland law?Short Answer: No. The 1996 Federal Telecommunication Act does not authorize a localboard to lease its real property to a private party for purposes of installing a cell towerthat is unrelated to its education mandate.7. May a local board grant an easement to its real property to support an unlawful lease ofschool real property?Short Answer: No. A local board may not grant an easement over school property tosupport an unlawful use of school real property.

8. Does Local Board Policy ECN Telecommunications Transmission Facilities, complywith the legal requirements of applications for Special Exceptions or MandatoryReferrals?Short Answer: No. Policy ECN is in conflict with the legal requirements of applicationsfor Special Exceptions for Mandatory Referral.

BACKGROUNDIn 1996, Congress passed the Telecommunications Act of 1996. The Act

overhauled U.S. telecommunications law for the first time in 62 years. With respect to

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cell phones, the Act restricted the authority of local governments to use zoning authoritywith respec t to the location of cell tower s.

In 1997, attorneys for the Local Board advised the board that theTelecomm unications A ct required it to have a policy in place w ith respect to cell towerlocation on school property. Below are m inutes from the Lo cal Board's April 23, 1997meeting:

[Board member] Ms. Signer inquired that as public agency, MCPScannot refuse to accept telecomm unications equipm ent? [LocalBoard outside counsel] Mr. M olinaro responded that the lawrequires that local and state governments to review the requestsand treat them fairly, legitim ately, and not in an arbitrary m anner.Und er this law, there is an obligation to have a p rocess for review.M s. Signer stated that her preference was not to placetelecommunications facilities on school property. (Exhibit F)

Pursuant to this advice, the Local Board adop ted Policy ECN. Un der the Policy, LocalBoard took the following position:

The Board of Education supports federal and county legislation relating tothe infrastructure of m odern telecommunications systems and w ishes toimplement these laws without contravening the primary m ission of theorganization which is to provide a safe and supportive environment for theacademic success of every student.

Policy ECN at p. 1.Staff at the Local B oard has entered into cell tower leases at the following high

schools: Springbrook High Sch ool, Magruder H igh School, Albert Einstein High School,W heaton High Sch ool, and W atkins Mills High Schoo l. Daly Elementary S chool is theonly elementary school at which staff and the L ocal Board has unlawfully leased schoolproperty to a private party to install a cell tower. Each of the leases is for a five yearperiod with an option to renew for an additional five-year period.

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At the June 16, 2011 meeting, Local Board voted to approve granting easementsto the above six school properties that the private leasees claim are necessary to operatethe telecommunications transmission facilities.

LEGAL DISCUSSION

Appellant Kerchaert Has StandingSince 1983, the State Board has required a person seeking review of an

adm inistrative decision to demonstrate that she w ould be -aggrieved by the finaldecision. In order to be an aggrieved party, a person ordinarily must have an interestsuch that [she] is personally and specifically affected [by the agency's final decision] in away that is different than the general population." Krista Ku rth et al. v. MontgomeryCounty Bd. of Educ., MSBE Op. No. 11-38 (2011) at p. 5, citing Sartucci v. MontgomeryCounty Bd Of Educ., MSBE, Op. No. 10-31 (2010).

Where, as here, an appellant is challenging a land use decision by a local board,the State Board has held that it is appropriate to apply standing criteria from land usecases so that an app ellant who is an adjoining, confronting, or nearby pr operty owner isdeemed, prima facie, a person aggrieved. Kurth, MSBE Op. No. 11-38 at page 6 .In Kurth, the local board had voted to lease real property to the local County for thepurpose of constructing an d operating ball fields.

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It cannot be seriously denied that the construction and operation of ballfields on the property will have some tangible effect on the residences inthe imm ediate vicinity of the prop erty . . . . The fact that the .. .Appellants ow n land either adjoining or in close proximity to the . . . Siteleads to the inescapable conclusion that these land ow ners wou ld suffer aninjury different from the public gen erally.

Kurth at p. 6.Appellant Kerchaert satisfies the criteria for being deemed to be, prima facie , a

person aggrieved and therefore to have standing. She resides 1/10 t h of a mile from Capt.James E. Daly Elementary School, one of the schools involved in the appeal. Her hom eis located w ithin the school's boundaries: one of her children has attended the school andfuture children will attend there.

Further, the Maryland Property Tax A ssessment Appeals Board has recognizedthat a hom e located near even a likely site of a cell tower suffers a d ecline in value, andtherefore assessment base, because of the proxim ity. See the attached exhibit. Based onthe Tax Assessment Appeals Board's methodology, Appellant Kerchaert has suffered adecline in value of her hom e, which would be remed ied by the State Board declaring theunlawful lease null and void. Thus, by the standard for standing that the State Board has

traditionally applied, Appellant Kerchaert has standing.W ith respect to the other Appellants, Maryland courts have frequently repeated:

"It is a settled principle of Maryland law that, 'where there exists a party having standingto bring an action . . . we do not ordinarily inquire as to wh ether another party on thesame side also has standing." Chesapeake B ay Foun dation, Inc. et al. v. David Clickner,et ux., 192 Md. App. 172, 191, 993, A.2d 1163, 1175 (2010); citing Garner v. ArchersGlen, 405 M d. 43, 54, 949 A. 2d 639 (2009) (quoting Sugarloaf Citizens ' Association v.Dept. of Environment, 344 Md . 271, 297, 686 A . 2d 605 (1996) quoting in turn, People 's

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Counsel v. Crown Dev. Corp., 328 Md. 303, 614 A. 2d 553 (1992)). Thus, the StateBoard ne ed not inquire as to the other App ellants' standing with regard to the issuesraised by Daly Elementary School.

Standing to Appeal the Easements at the Five High SchoolsW ith respect to the easem ents related to the unlawful leases at the five high school

property, the Appellants have standing based on M aryland's long-observedadm inistrative standing. Maryland courts have long observed th e difference betweenstanding before an adm inistrative agency like the Maryland Boa rd of Education andbefore a circuit court. In the form er case, a lower level of standing applies:

Thus, a person may properly be a party at an agency he aringunder M aryland's relatively lenient standards for adm inistrativestanding but not have standing in court to challenge an adverseagency action. The requirem ents for administrative standing arenot very strict. Absent a statute or a reasonable regulationspecifying criteria for administrative standing, one may become aparty to an administrative proceeding rather easily.

Suga rloaf v. Dep't of Environment, 344 M d. 271, 686 A.2d 605 (Md . 1996).T he State Board ha s taken different positions with respect to adm inistrative

standing. In Hearn v . Mon tgomery County Bd. of Educ., M SB E Op. No. 09-20 (2008),the Appe llant asserted administrative standing and the Sta te Board implicitly grantedstanding and ruled on the merits of the appeal. In Sartucci v. Montgomery County _Rd ofEduc., MSBE Op. No. 10-1 (2010) and Kurth et al . v. Montgom ery County Bd. of Educ.,MSBE Op. No. 11-8 (2011), however, the State B oard indicated that, in the context ofan a ppeal of a decision of one administrative body to another adm inistrative body, i .e. ,

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from a local board to the S tate Board, adm inistrative standing principles app ly only at thelocal board level. 1

In a 2010 decision, the Maryland C ourt of Special App eals rendered an opinion inChesapeake Bay Fo undation v. Glickner that calls into question the State Board's viewthat administrative standing only applies at the local board. 2 The Glickners had app l iedto Anne Arund el County for a zoning variance to perm it them to construct a drivewayand other imp rovemen ts on property they owned that was located within the ChesapeakeBay C ritical Area, and the County gran ted the application. The Chesapeake BayFound ation appealed the decision to the Anne Arund el County Board of Appeals.

The Board of App eals dismissed the Foundation's appeal for lack of standing,rejecting the application of administrative standing. 3 As the State Board ha s suggested,the Board of Appeals ruled that the more lenient standing criteria for administrativestanding app ly only in the absence of a statute or requirem ent specifying different criteriafor administrative standing. Like the State Board, the County Governm ent had adop ted astricter aggrievement" standard for ap peals to the Board of A pp eals. The Board ruledthat the Foundation lacked sufficient injury to have standing. The F oundation ap pealedto the Circuit Court, which affirmed the Board 's ruling.

The Foundation then appealed to the Court of Special Appeals. The Court ofSpecial Appeals reversed, concluding that the Board has m isapplied the "ag grievement"

Sartucci at. p. 7; Kurth at p. 4. In neither case, however, did the State Board's views aboutadministrative standing preclude review. In Kurth, the State Board foun d that the App ellants satisfied the"aggrieved" requirement. In Sartucci, even though the "agg rieved" requirement was not m et, the StateBoard decided to exercise its broad visitorial powers over the Local Board to rule on the appeal .2 Chesapeake Bay Foundation, Inc. et al. v. Clickner et ux., 192 Md.App. 172, 993 A. 2d 1163 (2010)(Chesapeake Bay Foundation).

192 Md.App. at 180-180; 993 A. 2d at 1168-1169.

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requirement. While the Court's decision did not turn on the B oard's ruling not to ap ply amore lenient administrative standing requirem ent, it sent a strong signal to the CircuitCourt that it should reevaluate the Board's refusal to apply the m ore lenient standard.`

T he Chesapeake Bay Foundation decision raises several questions abou t the StateBoard's decision to apply stand ing criteria that is stricter than the d efault lenientadm inistrative standing. First, the decision calls into question the approp riateness of anadm inistrative agency that reviews the dec isions of another adm inistrative agency, as theState Board does w ith respect to a local board a ction, from using the r elatively restrictivejudiciary-based standing requirement of show ing injury/aggrievement.Th e State Board b egan using the current injury/aggrievement standing requirement in a1983 decision, Adams v. Montgomery County Bd of Edw., MSBE O p. 83-4 (1983). 5T he Adams decision con tains no discussion of the default more lenient adm inistrativestanding concept even though discussion of it predated the 1983 decision. 6 Nor does theAdams decision contain an y discussion to link its decision to import a judiciaryinjury/aggrievement standing requirement to the relevant Education A rticle provision,which requires the State Board to " decide any controversy or dispute arising under theseprovisions."Wh ile it is true, as the State Board h as noted in Sartucci, supra, that the Court of App ealsha s recognized that administrative agencies have discretion to establish policy either4 192 Md.App. at 186-187; 993 A. 2d at 1172, 1173.5 T he Adams decision came four months after the Maryland Court of Appeals reversed, in Board ofEducation of Garrett County v. Lendo, 295 Md. 55, 453 A.2d 1185 (1982) the State Board's then long-standing policy of not allowing appeals from a local board's personnel decisions as a matter of right. TheAdams decision, however, contains no mention of the Lendo decision.6 See, e.g., Morris. v. Howard Res. & D ev. Corp., 287 Md. 417, 423, 365 A.2d 34 (1976).

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through ado ption of regulations or through ad hoc contested case adjudications, 7 thedecision cited was no t a discussion of the State Board's setting aside the administrativestanding criteria in favor of the more restrictive injury/aggrievement requirement.

The A ppellants respectfully request the State Board to reexam ine its use of therestrictive judiciary standing requirem ents and whether it is consistent with the statutoryrequirement that the General Assembly has imposed upon it.

In any case, because the easements at the five high school raise the same issues asthe easement at the Daly E lementary School, in the alternative, Ap pellants respectfullyrequest that the State Board exercise its broad v isitorial powers, as it did in Sartucci, todeclare the unlawful easements and leases null and void.

A Local Board Lacks the Legal Authority to Lease its Real Property to a PrivateEn tity for Purposes of Installing a Cell Tower That is Unrelated to its Educa tionMandate

A local board holds its real property in trust and may use such property forpurposes that advance its m ission of providing pu blic education in its county. g

In 1991, the Attorney General was asked to render a formal legal opinion onwhether a local board could permit the construction and use of a building by a privatecorporation on school property. Th e private corporation planned to use the b uilding to

Sartucci , supra, at p. 8 , citing Baltimore City Board of School Commissioners v. City Neighbors CharterSc h o o l , 400 Md. 324, 345 (2007).8 Education A rticle 4-114.

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provide child day-care services. 9 The A ttorney General concluded that such a transactionwas outside the powers of a local board.

In its analysis, the Attorney General noted that the General Assem bly had given alocal board various powers regarding real property. A local board could acquire land,school sites, or buildings and could rent, repair, improve, and build school buildings orapprove contracts to do so, with the approval of the State Superintendent and inconformance with the bylaws, rules, and regulations of the State Board of Education.

A local board could also find that any land, school site, or building "no longer isneeded for school purposes," causing the transfer of such school by the board to thecounty govern ment. A local board also selects school sites (holding public hearings onits selections), and m ay em ploy architects for the construction an d rem odeling of schoolland, sites, or houses adap ted to school purposes. A local board may even bringcondemnation proceedings to acquire land required for any school purpose.

The A ttorney General noted that none of these statutory purposes expressly gave alocal board authority to allow school property to be used for non-school purposes.

To the contrary, they appear to limit a local board's discretion tothe acquisition, construction, improvement, and conveyance ofland and buildings for school purposes.That these general provisions do not au thorize non-school uses ofschool property is confirmed by the fact that other, more specificstatutes do. In 1969, the General A ssembly en acted legislationnot only authorizing but requiring local boards to perm it the useof public schools for non-schoo l purposes. The d ifficulty,however, is that the type of arrangem ent under consideration inBaltimore County was apparently not contemplated by theLegislature.

9 P UBL IC SCH O O L SAUTH O RITY O F L O CAL SCH O O L BO ARD TO P ERM IT CO NSTRUCTIO NOF PRIVATELY OW NED DAY CAR E CENT ER ON SCHOO L LAND , 76 Opinion of the MarylandAttorney General 147 (February 1, 1991) (1991 Maryland A ttorney General Opinion).

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In short current law was not fashioned with this use ofunimproved school land in mind and does not easilyaccomm odate it. We recomm end that the General Assemblyclarify the authority of local boards in this respect. 1

In 2006, the Maryland Attorney General Confirmed that a Local School BoardLacks the Authority to Lease School Property for Non-School PurposesIn a 2006 O pinion, the M aryland Attorney General was asked to opine on the

opinion of the Harford C ounty local board attorney that a local board lacks the authorityto lease school property for non-school purposes." The Ha rford local board w asconsidering entering into 99-year lease under which it w ould lease school property beingused to p ark school buses to a private entity. Citing the 1991 Ma ryland Attorney GeneralOpinion, the Harford C ounty school board attorney concluded that no authority existedfor such a lease.

The M aryland Attorney G eneral ratified the local board's conclusion. In hisopinion, the M aryland Attorney General considered the impact of a 2004 am endment tothe Educa tion Article. In 2004, the General Assem bly amend ed section 4-114(c) to addsubsection 1:

[A] private entity may hold title to property used for a particularpub lic school or local school system if the private party iscontractually obligated to transfer title to the appropriate countyboard of a specified date. 1 2

io 1991 M aryland Attorney G eneral Opinion at p. . In the following legislative session, in 1992, theGeneral Assem bly amended the Mar yland education law to fill the legislative gap by expressly authorize alocal school board to lease real property for the purpose of constructing a day-care facility. See ED 7-1 09(a)(3).

P UBLIC SCHOOLSAU THORITY OF LOCAL BOARD TO ENTER INTO TRANSACTIONINV OLV ING LONG TERM LEASE OF SCHOOL P ROP ERTY F OR COMMERCIAL USE. 91 Opinionof the Maryland Attorney General 33 (January 30, 2006) (2006 Maryland Attorney General Opinion).12 Maryland Education Article, section 4-114(c)(1).

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The M aryland Attorney General concluded that the 2004 amendment was p art oflegislation intended to im plement the recom mend ations in the Final Report of the TaskForce to Study Pu blic School Facilities (February 2004). Am ong other things, the TaskForce recom men ded that local boards be permitted to use "alternative financing methods"to finance p ublic school construction. Alternative financing meth ods authorized by the2004 legislation include "sale-leaseback arrangemen ts, where a county board agrees totransfer title to a property, including improvements, to a private entity thatsimultaneously agrees to lease the property back to the county board ." I 3 The Task Force

Report recomm ended that the requirement that a local board hold tit le to property in orderto receive State funds shou ld be w aived under a sale leaseback arrangement "if the leasespecifies a future d ate when the title w ill revert from the private developer to the [localboard.]" 4 Thu s, it appears that Edu cation Article 4-114(c)(1) was added to allow forsale-leaseback arran gemen ts for school buildings and similar alternative f inancingmethods u nder Ed ucation Article 4-126(a)(1), I 5

In a telephone conference on April 21, 2005 with State School SuperintendentNancy G rasmick, Valerie Cloutier, then Principal Counsel for the State Board ofEducation/M SDE , stated informally to the Harford County G eneral Counsel that the

13 2006 M aryland Attorney Gen eral Opinion at 33; see ED 4-126(a)(1) .14 2006 M aryland Attorney Gen eral Opinion at p. 33-3 4, footnote 1 , ci t ing Task F orce Report p. 41 .1 5 See Advice Letter of Off ice of the M aryland Attorney General to M rs. Jacquel ine C. H aas ,Superintendent of Schools for Harford County d ated September 21, 2004, at page 5 , referenced in theNovem ber 22, 2005 Legal Opinion of Patrick P. Spicer, Esq. General Coun sel to the Harford local schoolboard, which is attached to the 2006 Maryland Attorney General Opinion at p. 41.

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opinion of the Maryland Attorney General's opinion at 76 Op of M aryland AttorneyGeneral 190 could be interpreted broadly, in light of the 2004 legislative initiative toauthorize the Board to enter into the ninety-nine year lease. The Harford C ounty school

board's attorney rejected this view and the Attorney G eneral implicitly concurred withthe Harford Coun ty school board general counse1. 1 6

Like the lease at issue in the 2006 M aryland Attorney General O pinion, the LocalBoard lease of real property to an private party to install a comm ercialtelecommunications transmission facility (cell tower) is not am ong the alternativefinancing methods authorized under E ducation Article 4-126(a)(1). Thus, ED 4-114(01) does not apply to this transaction and the 2004 am endm ent of the statute doesnot affect the conclusion that a local board lacks the authority to lease its school propertyfor non-school use.

The Federal Telecommunication Act of 1996 Does Not Preempt Maryland Law toRequire the Local Board to Lease its Real Property for Cell Towers or ExpandM aryland Law to Authorize Such Leases

The Loca l Board argues that the Federal Telecomm unication Act of 1996 (1996Telecomm unication Act) requires it to lease its real property to a p rivate party that wantsto erect a comm ercial cell tower.

As an owner of pub lic land, the Coun ty Board is subject to therequirements of the Federal Telecommunication Act of 1996 and cannotadopt a po licy that has the effect of prohibiting the provision of perso nalwireless services. The C ounty Board recognized, in 1997, that it couldearn profitable rental fees by leasing a po rtion of school p roperty to atelecommunication company a nd could promote the public interest by co-locating several providers on the same cell tower. The County Boa rd was

16 2006 M aryland Attorney G eneral Opinion at p. 41, footnote 6.

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aware of both the ben efits and the legal requiremen ts involved in celltowers w hen it adopted a po licy establishing criteria for the review andapproval of Telecomm unication Transm ission Facilities. See Minutes ofthe 1997 Board m eetings. (em phasis added)"

This position is consistent with the advice that attorneys for the L ocal Board gav e theLocal Board w hen it adopted Policy ECN. B elow are minutes from the local board'sApril 23, 1997 m eeting:

[Board m ember] M s. Signer inquired that as public agency, MC PScannot refuse to accept telecommunications equipment? [LocalSchool Boa rd outside counsel] Mr. Mo linaro responded that the lawrequires that local and state governm ents to review the requestsand treat them fairly, legitimately, and not in an arbitrary manner.Under this law, there is an obligation to have aprocess for review. Ms. Signer stated that her preference was not toplace telecommunication facilities on school p roperty. (Exhibit F

I n fact, on its face, the 1996 Telecomm unication Act does n ot require or authorize aMaryland local board to lease its property to erect a commercial telecommunicationstransm ission facilities tower. Section 704(a) of the A ct amen ds section 332(c) of theComm unications Act of 1934 to add a new paragraph (7), which p rovides:

(7) Preservation of local zoning authority(A ) General A uthorityExcept as pr ovided in this paragraph [7], nothing in this chapter shall limitor affect the authority of a State or local governm ent or instrumentalitythereof over decisions regarding the placem ent, construction, andm odification of persona l wireless service facilities.(B ) Limitations(i) The regulation of the placement, construction, and modification ofpersonal w ireless service facilities by an State or local governm ent orinstrumentality thereof(I) shall not unreasonably discriminate am ong providers offunctionally equivalent services; and

17 Respondent Local board's Mem orandum in Support of Motion to Dismiss, p. 6.

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(II) shall not prohibit or have the effect of prohibiting the prov isionof personal wireless services.* * *(iv) No State or local government or instrumentality thereof mayregulate the placement, construction, and modification of personalwireless service facilities on the basis of the environmental effects ofradio frequency emissions to the extent such facilities comply with the[Federal Communication Commission's] regulations concerning suchemissions. (emph asis added) 1 8

In response, local jurisdictions amended their zoning ordinances to com ply with section704(a).

The L ocal Board's Policy EC N presumes that Federal law preempts State andlocal law to require it to allow cell towers on its property. The Suprem acy Clause of theU.S. Con stitution, Article VI, cl. 2 invalidates state laws that "interfere with, or arecontrary to federal" Federal law. When Federal law preempts State law, it prohibits astate or local government entity "from regulating within a protected zone, whether it be azone protected and reserved for market freedom or for Fed eral agency jurisdiction.

On its face, section 704(a) of the 1996 Telecomm unication Act preemp ts to a

certain degree a local government's authority to regulate cell towers under its zoningauthority. Section 704(a), however, does not preem pt M aryland law to dictate that aState or local government or instrumentalities thereof such as a local board must makereal prope rty that it owns available for the location of a cell tower. This is made clear bysection 704(c) of the Act, which requ ires the President of the United States or h isdesignee to prescribe procedures by which Federal departments and agenciesmay makeavailable property, rights or way, and easements under their control for the placement ofnew telecommunication services that are dependent upon the utilization of Federal

18 Telecommunication Act of 1996, section 704(a), P.L. 104-104 (47 U.S.C.A. 332(cX7)).

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spectrum rights for the transm ission or reception of such serv ices. 1 9 Section 704(c)mak es clear that, if Congress wanted to require that State and local governments m aketheir real property available for cell towers, it knew how to say so.

M ost importantly, section 704(c) further provides:The [Federal Comm unication C omm ission] shall provide technicalsupport to States to encourage them to m ake property, rights-of-way, andeasements under their jurisdiction available for such purposes. 2

The above langua ge of section 704(c) makes clear that Congress did not intend topreempt M aryland law to require the Local Board to make its real property available forthe installation of cell towers.The Federal Second Circuit Court Decision

This plain meaning of section 704 of the 1996 Telecomm unication Act wasconfirmed by the Federal Appeals Court for th e Second Circuit in Sprint Spectrum v.Mills. 2 1 The case arose from a dispute between Sprint and a local school district inOssining, New York.

In September 1998, Sprint and the Ossining Union Free Sch ool District inOssining, New York, entered into a five-year lease agreement permitting Sprint to installa cell phone tower on top of Ossining High School. Under the arrangement, Sprint wasto pay the Sch ool District an annu al rent of $30,000, escalating by at least three percentper year. The lease allowed Sprint to make such periodic technological improvements atthe cell site as it deemed n ecessary.

19 Telecommunication Act of 1996, Section 704(c). See 47 USCA 332(c) note (West 2011)20 Id.2 1 S p r i n t S p e c t ru m L . P . v . M i ll s , 283 F.3d 404 (2d Cir. 2002).

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In October 1998, Sprint and the School District agreed to incorporate into thelease a one-page addendum dealing with the density of radio emissions from theproposed antenna in terms of the number of microwaves per square centimeter.

On March 28, 2000, Sprint informed the School District that changes in availableequipment requ ired it to modify its original installation plan. O ne of the ch anges wou ldincrease the levels of radio frequency (RF) emissions generated by the facility, althoughthe levels would remain in comp liance with FC C safety standards.

On July 5, 2000, when a Sprint construction crew attempted to begin work on theantenna, the School D istrict barred the crew from access to the High Scho ol. Citing itsconcerns for the health and safety of the school's students, the School District took theposition that it would not perm it Sprint to install the facility unless Sprint agreed tooperate the facility at or below the RF emissions levels set out in the addendum .

Sprint pointed out to the School District that the RF emissions levels stated in theAdden dum were 13,000 times below the m aximum levels set by the applicable federalsafety standards. It also stated that in the period after the addendum was executed,technological advances had m ade Sprint's originally planned equipm ent obsolete. Withthe new technology, Sprint could not operate at the low RF emissions levels outlined inthe addendum . Although Sprint guaranteed the School District that the new antennawould operate at levels below the max imum set by the FCC , the School District insistedthat it would not allow construction unless Sprint operated at or below the levels set forth

in the adden dum . Unab le to resolve the conflict, Sprint filed a petition in federal districtcourt seeking an order compelling the School District to allow Sprint to install theantenna on the High School.

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The federal district court ruled in favor of S print Spectrum and the OssiningSchool Board appealed. The Federal Appeals Court for the Second Circuit reversed.The Second Circuit recognized that section 704(a) preempts State and local governmentsfrom regulating the placem ent, construction, or m odification of cell towers on the basis ofhealth effects of rad iofrequency radiation where the facility operates within levelsdetermined by the Federal Com mu nication Comm ission to be safe. 2 2

The S econd Circuit ruled, however, that not all actions by state or localgovernm ent entities constitutes "regulation," for such an entity, l ike a private person, m aybuy and sell or own and m anage property in the marketplace. The Second Circuit quotedthe United States Suprem e Court ruling in Building & C onstruction Trades C ouncil v.Associated Builders and C ontractors of Massachusetts/Rhode Island, Inc 507 U.S. 218(1993):

A state does not regu late . . . simply by a cting within one of theseprotected areas. W hen a State owns an d m anages property, for example, itmu st interact with private pa rticipants in the ma rketplace. In so doing, theState is not subject to preem ption by the [federal statute], because pre-emp tion doctrines apply only to state regulations. Boston Harbor, 507U.S. at 227 (empha sis in the original). 2 3

The S econd Circuit ruled:In determining w hether such local action constitutes forbidden regulation,or instead constitutes permissible proprietary action, we find the S uprem eCourt's decisions in Boston Harbor and W isconsin v. Gould, both ofwhich involve preem ptive reaches of the National Labor Relations Act(NLRB) to be instructive."

22 283 F. 3d at 417.23 283 F.3d at 417.

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In the present case, these principles lead us to the conclusion that theSchool D istricts stance with resp ect to its lease with Sprint is notpreempted. 2 4

In its Policy ECN , the Local Board com m itted to review the policy on an ongoing basis.There is no evidence that the Loca l Board reviewe d its policy after the Second C ircuit's2002 opinion. In fact, m ost, if not all, of the telecommunications transmission facilityleases that the Loc al Board staff has unlawfully entered into were done so after 2002.

As dem onstrated above, the Local Board does not have the authority underMa ryland law. The fact that tenants have been occupying the unlaw fully leased realproperty does not preclude the State Board from declaring the leases null and void.In general, one who m akes a contract with a governm ent entity is bound to take notice ofthe limitations of its power to contract.

No county b oard of education, regardless of local custom, has the right toignore or circumv ent the mand ate of the legislature, and no custom, howevervenerable, can nullify the plain meaning and purpose of a statute.Hanna v. Board of Education of Wicumico County et al.,d.87 A.2d 846, 850(Md. Court of Appeals 1952).

Local B oard Policy ECN states that it "establishes the criteria by which the Boardof Education will evaluate and m ake decisions concerning applications to place privatetelecommunications transmission facilities on sites owned by the Board of Education."The L ocal Board did not review, discuss or vote on any of the telecomm unicationstransmission facilities placements listed in the C onsent Agen da that is sub ject of thisappeal.

24 283 F.3d at 417-418.

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For each Consent Agenda i tem (Exhibi t A), the mem orandum from the Superintendentstates that "staff in the Department of Facilities Management negotiated a LeaseAgreement for Telecommunications..." None of the Conse nt Age nda m e m or and a de ta ilthe Local Board evaluation or dec i s ion m aking with regard to these te lecom m unicat ionstransm iss ions fac i li t i es . No m inutes exi s t to supp ort com pliance with Pol icy EC N by theLoc al Boar d . The Loc al Boar d ne v e r d i sc usse d or v ote d on the p lace m e nt o f the s i xte lecomm unicat ion s fac i li t i es towers l i sted on the June 16, 2011 C onsen t Agen da.

Local Board Policy: ECN Telecommunications Transmission Facilities

is in conflict with Montgomery County, Maryland lawLoc al Boar d Pol ic y EC N Te le c om m uni c at i ons Tr ansm i s s i on Fac i l it i es , Se c t ion E (4 )states that:

The superintendent wil l receive the M-NCPPC R eport or Board of Ap pealsdecis ion and any other relevant information and m ake a decis ion concern ing theapplication.

M-NC PPC (Ma ryland-National Capital Park and Planning C om m iss ion) and the Board ofAp peals cannot review an app l icat ion without the consent of the land owner. The landowner for public schools i s the Local Board. In order for M - NCPPC or the Board o fAppeals to cons ider a r equest to construct a te lecomm unicat ions transm iss ion faci l itytower, the Local Board as land own er m ust have already approved the construct ion of thetower on the pu bl ic school property.

2 ")


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In Mo ntgom ery Cou nty, a petitioner for a special exception mu st have a legal right toprosecute the petition.

If Petitioner is not the owner of the property involved, lease, rentalagreement, or contract to purchase by which Petitioner's legal right toprosecute the petition is established.(Section 59-A-4.22, Montgomery County Code 1994, as amended)

In the 2011 Special Exception S-2795 matter before the Montgom ery County Board ofAppea ls, on the proposal by T-M obile to place a telecommun ications facilities tower atLocal Board property Sligo M iddle School, the petition for the Special Exception waswithdrawn when the Board of Appeals was advised that the property owner, the LocalBoard, had n ot consented to the construction. (Exhibt G) Policy EC N does n otannun ciate a procedure that can legally be followed with respect to an app lication for aSpecial Exception in Montgomery C ounty. A Special Exception can not be granted priorto the permission of the land owner to proceed with the construction.

The M andatory Referral process requires the agency that own s the land to file theapplication.

All formal requests and applications mu st be from the head of the applicantagency o r a representative pub lic official of the agency an d addressed to theDirector of the Department of Park and Planning.Uniform S tandards for M andatory R eview Process, Section III, April 19, 2001,Updated Janua ry 2, 2008.

Policy ECN states that the Mandatory Review process and the granting of SpecialExceptions are to be accomplished without the consent of the Local Board. Policy ECNis clearly in conflict with Montgom ery Cou nty laws, invalid and unenforceable.

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Superintendent does not have authority to sign for Board of EducationThe L ocal Board did n ot respond to this allegation in App ellant's complaint. The

Local B oard is conspicuou s by their absence of a response to this allegation. All of theleases that were the subject of the June 16, 2011 Consent A genda (Exh ibit C) clearlycontained a signature line for the -Board of E ducation". On each of those leases thesignature beneath the "Board of Education" was that of the superintendent only. None ofthe leases contained the signature or authorization of the Local Board. Policy ECN doesnot authorize the S uperintenden t to sign telecomm unications facilities leases on beh alf ofthe Local Board.

As the Loc al Board states in their response to this appeal, an action of the LocalBoard is recorded by the signature of the L ocal Board P resident. The Local Board stateson page 7 of their Mem orandum, " ...once approved, authorized the B oard President andthe Superintendent to execute...". In each of the leases in Exhibit C of the AppellantsComplaint, the Local Board signature that would have signified Local Board action wasabsent.

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Conclusion

For the reasons stated above, Appellants request that the State Board rule the sixeasemen ts, and the underlying leases, null and void.


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A * ,ti

1 .!

- .4, .714 .VN.4"?..=- -4 ell, 71Daly Elementary School20301 Brandermill DriveGermantown, Maryland 20876

Telecommunications Transmission Facility(Cell phone tower)

Exhibit D.1


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Daly Elementary School20301 Brandermill Drive

Germantown, Maryland 20876Telecommunications Transmission Facility(Cell phone tower)

Exhibit D.2


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TO :

S T A TE O F M A R Y L A N DPROPERTY TAX ASSESSMENT APPEAL BOARD FOR MON TGOME R Y C OU N TY

Tel, No. 301-279-83331 MO NROE PL. k 201, Rockvi lle, MD 20850AX # 301-279-1913SALVER SPRING MD 20903 - 133e

C OPY T O:DEPT OF ASSESSMENTA N C TA X A TIO N30 \P I G L ID E D R g 40 0RO CK V iL L E M D 20 850

C OPY T O;DEPT OF r:INANCEMONTGOMERY CO GM/255 Ro ckvi l le Pke LL15RO CK V IL L E M D 20 850

PTA .B APPEAL Number:Tax Year 2010)Date of Hearing:ARCH 2C IProperty ACCOUNT Number:min.Property under appeal:

ORDER Date: ',APRIL 2011This is tohat the Proper -..; Tax Assessment Appeal Board considered the abovenumbered case and - as ruled that 1! . e netts. - ~ 1 .4,liatr:.n by the Department of Assessments andTaxatior be reversed.Comparables warrant a reduction inaffects %/slue negatively.Adjusted New Market Value

Land:Improvements:Total1/54440,....izavt.snyarnsunder Viswanatha (Or LSAM''.CLERK TO THE BOARD

7-'7:it:ability of neighboring cell tower also

IMPORTANT NOTICE.If disagreeing with above decision of the Board, you have the right to appeal (within 30 (thirty)days from date of this Order) to the Maryland Tax Court. under tie provisions of the Tax-Property Article,Section 14-512 of the Annotated Code of Maryiano.To appeal, make a copy of this Order, attach with an appeal letter ecoressed to Mary!and ; axCourt, 301 West Preston StreetStjte#1513, Ealtimore, MD 21201 and send it to them, You may obtain

,..ittler information, requirements and instruct;ons about Maryland Tax Cour: by ca: .a them at 410 767 4830 or by visiting their website: wv.rw.crt.state. md . u s .

Exhibit E


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Board Minutes14 -pril 23, 1997Re: TELECOMMUNICATIONS TRANSMISSION FACILITIES

Dr. Vance invited the following people to the table: Mr. Terry Brooks, substituting forMr. William Hussm an, chairman of the Montgom ery County Planning Board; Ms. Ann Muller,county tower c oordinator; Mr. David Fischer, associate superintendent for the O ffice ofSupportive Services; Mr. William Wilder, director of the Department of FacilitiesManagem ent; and Mr. Michael Molinaro, counsel for MCP S.Ms. Muller presented the backg round for the need for cellular com m unication facilities.Over the past several years, cellular communication has becom e alm ost com m onplace. Aneffective cellular com m unications system h as becom e an important part of the econom ic andbusiness infrastructure as w ell as a c onvenience for personal com m unications. How ever,as users know, the quality of service varies depending on topography and intensity of use.Current tech nology solves reception problems th rough c onstruction of more cell sites atmore locations and installation of m ore antennas.W hile there have been several requests to place cellular monopoles on MCP S sites, nonehas y et been approved. There are two applications from Cellular One that have beenforwarded to MCP S--one to install an antenna on an extended stadium light pole at PaintBranch H igh Sch ool and another to place a monopole at the Randolph Maintenance Depot.Recognizing this growing need for telecommunications infrastructure, the federal governmentenacted the Telecom m unications Act of 1996. Montgom ery County followed w ith Bill 5 -96and related zoning text amendm ent 95208. In general, this legislation requires the sch oolsystem to develop a plan about the placement of private telecommunication facilities onschool sites.Based on a cou nty executive regulation, the coordinated process has taken the form of aTelecomm unications Transmission Facility Coordinating Group supported by the county'scontract tower coordinator. Montgom ery County P ublic Schools (MCPS ) representativeshave served on th at group since its inception.The cou nty's zoning text amendm ent tries to reduce the num ber of transmission facilities thatmay be placed in neighborhoods. It permits antenna installation as a m atter of right on tallbuildings and co-location of antennas as muc h as possible. Any proposed tower or polem ust perm it the installation of at least three antennas. In addition, such installations arepermitted on public property subject to the relevant mandatory referral or special excep tionreview procedures.Mr. Brooks reported that the Maryland-National Capital Park and Planning Commission hasproposed using its "Pub lic/Private Developm ent Guidelines" to provide a fair process for

Exh ib it F


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Board Minutes15 -pril 23, 1997evaluat ing pro posals. In add it ion, they require appl icants to answer the fol lowing s ixquestions:1. Are there alternative sites to parkland?2. Is the proposed u se decidedly required on park property in order to serve thegreater public interest?3. Is the proposed use com patible with the department's m ission, and would theproposed use substantially detract or contribute to the department's short-term an d long- term goals?4. Is the proposed use compatible and consistent with the purchase intent anddeve lopm ent plans for the parcel that would receive the project?5. What form of com pensa tion wil l be provided?6. Is the proposed use aesthetically and environmentally acceptable?

Mr. Wilder stated that although the federal act prohibits use of health concern s as a b asisfor denying placement of cellular transmission facilities on public property, communitiescontinue to worry abo ut potential health risks. These con cerns focus o n the effect of highfrequency radio waves and related electromagnetic fields on children. Although manystudies conclude that no deleterious effects have been proven, o thers ind icate some basisfor concern. No studies ha ve been running long enough to evaluate the long-term imp act ofhigh frequency radio waves on children. Consequently, concerned citizens caution thatpublic policy should err o n the s ide of avoiding any potential public health r isks, espe ciallyfor children.Other concerns raised by community groups include the aesthetic effect of such installationson neighborhoods and the potential dam age that could be cause d by a tower or pole fal lingdown. The zon ing text amend me nt implicitly recognizes this latter risk b y requiring the toweror pole to be setback the full extent of its height in residential zones.No other school system in the state of Maryland has developed a pol icy or guidel inesrelating to placem ent of cel lu lar poles and n one in the me tropoli tan area has any s uchinstallation.In February 1997, Fairfax County Pu blic Schools ad opted a policy granting leases for theplacement of telecommunications transmission facilities on school property The policyind icates that requests shal l be reviewed on a case by case b asis, first-com e, first-served.Requests will be evaluated o n the basis of compa tibility with the coun ty comprehens ive plan,impact on school operations, school and com mu nity input, rent, and co-location options.Ultimately, the impact of telecomm unications transmission facil it ies on school operations isof cr it ical importance to al l of us. Nothing should b e al lowed to interfere with our mission ofimproving the academic achievement of all our students. The safety of students and staff


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Board Minutes16 -pril 23, 1997must be protected. To the extent possible, the aesthetics and the architectural integrity ofthe school site must be preserved. Schools must be mindful of being perceived as goodneighbors in the com munity. On the other hand , significant revenue from site rental wouldbe expec ted to provide additional support to our instructional program . Finally, the Boardof Education m ust be indem nified and held harmless from any and all liability related to su chinstallations.The Board me mbers raised the following issues and questions:1. Mrs. King stated that the community will accept them as long as thetelecommunication facilities blend into the neighborhood.2. Ms. Signer inquired that as public agency, MCPS cannot refuse to accepttelecommunications equipment? Mr. Molinaro responded that the law requires thatlocal and state governm ents to review the requests and treat them fairly, legitimately,

and not in an arbitrary manner. Under this law, there is an obligation to have aprocess for review. Ms. Signer stated that her preference was not to placetelecommunication facilities on school property.3. Ms. Gu tierrez requested the status of d raft policy for Board of E ducation review. Mr.Fischer stated that staff needed d irection from the Board prior to draft ing such apolicy for review.4. Mr. Ewing stated that the Board should review a proposed policy and a limitedsamp ling of other schools systems' policies would be he lpful. MCP S' policy shouldbe consistent with other agencies within the county, but augm enting that policy withthe unique requirements of the school system.

5. Ms. Prager questioned what the rents receipts would be, and who would receivethem? Ms. Muller stated that agencies negotiate the payments and conditions, butreceipts could run $1,500 per month, and the revenues would go to the leasingagency. Ms. Prager thought the safety and aesthetic issues can be resolved, andthe school system sho uld lease sites for telecommunications.

6. Ms. Gutierrez did not support encouraging the school system to lease sites fortelecommunications, but the school system must comply with the law by developinga po licy involving specific cr iter ia and public input.7r. Felton summed up the discus sion by stating that the superintendent had a sens eof the Board, and staff should m ove forward w ith a draft policy.Re: BOARD/SUPERINTENDENT COMMENTSDr. Vance stated that the Maryland General Assem bly had increased state aid by $6.3million for next year. Unfortunately, the additional funding m ay not be a clean gift. Theremay be strings attached and requirements on how the m oney is to be spent. The EducationComm ittee has assumedwith support from the C ounty Executive and others that theBoard's budget request will satisfy the funding requirements. The Education Committee has


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Law Office of Sean Hughes6339 Ten Oaks Road

Suite 305Clarksville, Maryland 21029(443) 542-9008

June L 2011Office of Zoning and Administrative HearingsStella B. Werner Council Office Building100 Maryland Avenue, Room 200Rockville, Maryland 20850Attn: Lynn A. Robeson- Hearing ExaminerRe:ase S-2795- Petitioner's (T-Mobile) reply to the Hearing Examiner Order Extending theTime for Closing the Record. dated May 23. 2011Dear Hearing Examiner Robeson:Petitioner no s N, in light of Exhibit 72 which included letters dated April 14 and May 16_ 2011from Mr. Song of MCPS and Ms. Steinberg of the Board of Education, which T-Mobile onlyreceived after the Hearing Examiner's May 23. 2011 Order. concurs with the request to dismissthe Petition (per Board of Appeals Rules of Procedure- 3.2.1. 3.2.2 and:or 5.0) or requests on itsown action that the application be withdrawn. Since the landowner is no longer supportive of T-Mobile' s current application we recognize that the petition is now essentially moot and thatproceeding further is an improper use of public resources and not appropriate in light ofjudicial/administrative economy.!lank N o U .

Sincerel .

Sean P. Hughes

Exhibit G

Documents

Cell Tower Appeal Memorandum 9-15-2011