Wave of NIMFY (Not In My Front Yard) Small Cell Ordinances and Litigation Coming

Over the last year, we have seen a significant jump in the number of municipalities revising their land use ordinances in response to the increasing tide of proposals for new small cells to be installed within the right of way. Residents and communities typically dislike having wireless equipment located close to their homes, and many view the possibility of new poles with small cells being erected in their front yards to be even more objectionable. Public opposition is significant, and municipalities are lawyering up to determine what rights they have to oppose these new small cell poles. The industry has historically referred to this faction of tower opponents as “NIMBY”s – an acronym for Not In My Back Yard. Because these proposed small cells are to be installed in the right of way – in front yards – we will refer to this subgroup as “NIMFY”s – Not In My Front Yard.

These ordinances typically contain height restrictions and limitations on where and how new poles can be installed. For the most part, they appear to recognize that attachments to existing poles are acceptable, provided that they don’t impact public safety or inhibit use of the right of way. Some ordinances include restrictions on the appearance or size of the equipment. One universal aspect of these ordinances is that they all impose limitations on the height of new small cell poles in the right of way. This would seem to impact Mobilitie more than the wireless carriers or other tower companies who are building small cells, such as Crown Castle and Extenet. These height limitations typically range between 30′-40′, significantly lower than the 120′ structures that Mobilitie is proposing in various municipalities. Depending upon state law, these ordinances may also prohibit new poles in areas where there are no existing utility poles, or limit new poles to the height of existing utility poles.

We are increasingly seeing the first round of litigation regarding these ordinances, a trend we expect to continue. This past week, the City of San Francisco won litigation against T-Mobile, Extenet, and Crown Castle regarding its small cell ordinance (see the San Francisco, CA link below for more details). But despite this victory, the rights vested in municipalities to regulate small cells and new poles will continue to be contested, and further regulations at the local, state, and federal level will be forthcoming. FCC Chairman Tom Wheeler directly addressed these issues in his speech to the CTIA Mobility Conference a few weeks ago: “If siting for a small cell takes as long and costs as much as siting for a cell tower, few communities will ever have the benefits of 5G. We recognize that this is a major concern and are committed to working to lessen these burdens and costs to ensure that 5G is available nationwide.”

The list below represents just a few of the cities that have enacted or are in the process of enacting small cell policies/ordinances. Any pending or completed litigation has been noted after the link.   We have excluded any municipalities with whom we are actively working on ordinance or policy review. As we find additional articles, we will add them to the list.

Macon, GA

Fort Wayne, IN

College Township, PA (litigation)

Overland Park, KS

San Francisco, CA (litigation)

Baltimore, MD

Meadville, VA

Roanoke, VA

Spokane, WA

Winnetka, IL

Montgomery County, MD