text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Local Zoning Preservation Act of 
  1999''.
  
  SEC. 2. FINDINGS AND PURPOSE.
  
      (a) Findings.--Congress makes the following findings:
              (1) In the Telecommunications Act of 1996, Congress 
          preserved local zoning authority over decisions regarding the 
          placement, construction and modification of personal wireless 
          service facilities, except that (A) the zoning application must 
          be acted upon within a reasonable amount of time; (B) the 
          decision must be in writing and be supported by substantial 
          evidence; (C) the decision must not be based on concerns about 
          the environmental effects of radio frequency emissions from 
          facilities; and (D) the State or locality must not discriminate 
          among personal wireless service providers.
              (2) State and municipal zoning decisions traditionally have 
          been afforded virtually complete deference by Federal courts. 
          Issues of land use are distinctly local and therefore fall on 
          the State-side of the federalism divide.
              (3) When Congress passed the Telecommunications Act of 
          1996, it anticipated the need for and proliferation of personal 
          wireless service facilities. Congress, however, included the 
          provisions on the preservation of local zoning authority 
          because it also realized the need to protect State and local 
          authority to regulate the placement, construction, and 
          modification of these facilities, with few limitations.
              (4) The limitations in the Act have forced States and 
          localities into needless litigation regarding denials of 
          facility applications. In some cases, the courts have 
          misinterpreted the intent of the limitations in the Act on 
          State and local authority, forcing many States and localities 
          to approve applications for construction of unsightly mammoth 
          personal wireless service towers in their community.
              (5) Many residents of States and local towns have expressed 
          concerns about the impact of personal wireless facilities and 
          towers on property values, aesthetics, and the character of 
          local communities.
              (6) Many localities have refused to approve personal 
          wireless service facility applications in response to citizen 
          concerns about the facility and tower impacts on property 
          values, aesthetics, and character of the community.
              (7) A specific limitation included in the section 
          332(c)(7)(B)(iii) of the Communications Act of 1934, as amended 
          by the Telecommunications Act of 1996, provides that any 
          decision by a state or local government to deny a request to 
          place, construct, or modify personal wireless service 
          facilities shall be in writing and supported by ``substantial 
          evidence'' contained in the written record. The conference 
  report for the Telecommunications Act of 1996 defined ``substantial 
  evidence contained in the written record'' as the traditional standard 
  used for judicial review of agency actions--more than a scintilla of 
  evidence but less than a preponderance.
              (8) Denials of these personal wireless service facility 
          applications have led to litigation in Federal courts, 
          sometimes resulting in federal judges overturning local zoning 
          board decisions.
              (9) The Federal courts are split on what constitutes 
          ``substantial evidence'' to uphold a local zoning board's 
          decision to deny a permit for construction, placement, or 
          modification of personal wireless service facility.
              (10) Some Federal courts have refused to acknowledge 
          citizen concerns about aesthetics or a decline in property 
          value as legitimate reasons for denying a personal wireless 
          service facility application, holding that such concerns do not 
          constitute ``substantial evidence''. See, e.g., APT 
          Minneapolis, Inc. v. City of Maplewood, 1998 WL 634224, at *5 
          (D. Minn. Aug. 12, 1998) (concluding that ``[c]ourts construing 
          the TCA have universally held that general aesthetic 
          considerations fail to meet the substantial evidence test''); 
          Omnipoint Communications Enterprises, Inc. v. Town of Amherst, 
          N.H., Civil No. 97-614-JD (D. N.H. Aug. 21, 1998) (stating that 
          ``[a]lthough aesthetic considerations may be properly taken 
          into account by local governments in some circumstances, they 
          cannot be used to exclude PWS towers entirely'').
              (11) Other Federal courts, however, have held that local 
          residents' concerns about the personal wireless service 
          facility's impact on aesthetics of the community constitute 
          ``substantial evidence''. See, e.g., Cellular Telephone Co., v. 
          Town of Oyster Bay, 1999 WL 35195, at *7 (2d Cir. Jan. 29, 
          1999) (concluding that ``aesthetics qualify as a permissible 
          ground for denial of a permit only if we can conclude that 
          there was `more than a scintilla' of evidence . . . before the 
          [Zoning] Board on the negative visual impact of the cell 
          cites''); AT&T Wireless PCS, Inc. v. City Council of the City 
          of Virginia Beach, 155 F.3d 423, 427-28 (4th Cir. 1998) 
          (concluding that testimony from citizens ``demonstrating 
          concerns about the aesthetics of the towers and their 
          incompatibility with the residential character'' of the 
          community ``is more than enough to demonstrate the real, and 
          surely reasonable, concerns animating the democratically 
          elected'' city council's decision).
              (12) To provide the courts better guidance the 
          Telecommunications Act of 1996 must be amended to clarify that 
          the substantial evidence test may be satisfied by testimony of 
          local residents expressing concerns about the impact of 
          personal wireless service facilities on aesthetics, property 
          values, and the character of residential neighborhoods. Such a 
          legislative change would not discriminate against personal 
          wireless service providers or impede their attempts to provide 
          personal wireless services, but instead would encourage 
          providers and States and localities to work together to design 
          towers, facilities, or other feasible alternatives that do not 
          intrude or diminish the aesthetics of residential communities, 
          thus avoiding costly and protracted litigation.
  
  SEC. 3. AMENDMENTS.
  
      (a) Substantial Evidence.--Section 332(c)(7)(B)(iii) of the 
  Communications Act of 1934 (47 U.S.C. 332(c)(7)(B)(iii)) is amended by 
  adding at the end the following: ``For purposes of this clause, the 
  term `substantial evidence' includes testimony by local residents 
  expressing their concerns about the impact of personal wireless service 
  facilities on the aesthetics, property values, and the character of the 
  community.''.
      (b) Burden of Proof.--Section 332(c)(7)(B)(v) of such Act is 
  amended by inserting after the second sentence the following: ``In any 
  such action in which a person seeking to place, construct, or modify a 
  tower facility is a party, such person shall bear the burden of 
  proof.''.
target: Local Zoning Preservation Act of 1999 - Amends provisions of the Communications Act of 1934 relating to the placement, construction, or modification of personal wireless service facilities to: (1) state that a decision by a State or local government to deny a request for the placement of such facilities must be supported by substantial evidence, including testimony by local residents expressing their concern about the impact of such facilities on the aesthetics, property values, and character of the local community; and (2) require a person seeking to place, construct, or modify a tower facility to bear the burden of proof that such action shall have no adverse effect on such community or any person.
feat_title: Local Zoning Preservation Act of 1999