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Metro Roundup: Vestavia council asks for attorney general opinion on small-cell towers

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Image courtesy of city of Vestavia Hills

The Vestavia Hills City Council on Monday indefinitely postponed a scheduled vote of a controversial cell tower construction plan.

Instead, the council voted to seek a ruling on the matter from Alabama Attorney General Steve Marshall to determine what oversight, if any, the city has over the erection of several small-cell internet towers earmarked for the Crossgate community.

Part of an act passed by the federal government to provide 5G wireless broadband access nationwide in 2019 allows for the placement of 30-foot towers on rights of way and private property without the consent of local governments.

In June, City Attorney Patrick Boone and Mayor Ashley Curry each stated the city cannot stop the plan from moving forward, and Ashley called the law an “overreach.”

While the law apparently does not permit cities to ban the towers outright or place restrictive zoning ordinances against them in a de-facto ban, municipalities are supposed to approve any measure within 60 to 90 days. Otherwise, construction can begin without a vote of approval.

But after more than a dozen Crossgate residents showed up in person on June 26 to protest, the City Council that night voted to delay until Aug. 14 an official vote on the cell tower plans set forth by Crown Castle, a communications company contracted to complete the Crossgate project.

However, the City Council on Monday unanimously approved a resolution to seek the attorney general’s opinion following a “lunch and learn’ meeting with Crossgate residents held at City Hall on Aug. 7 to discuss the small-cell tower plan.

“By asking the attorney general to review it, he’ll give us his opinion, and it will further support or alter what action we can take,” Curry said. “I think it’s needed for clarification.

“It will obviously postpone the decision regarding these small-cell systems in Crossgate,” added Curry, “but I think it’s to the citizens’ benefit that we put in this extra effort so we can answer these questions authoritatively.”

Councilwoman Kimberly Cook said these questions emerged from the conversations with residents and things that they’ve asked the council to do to represent them. “Whatever authoritative opinion that he gives will be what we can legally do,” she said.

The questions the city is asking the attorney general to answer include:

  1. Does the act allow the city to reject small-cell facilities from being placed in the city rights of way, and what conditions are valid reasons for such denial?
  2. Does the act allow the city of Vestavia Hills to determine the exact location for the installation of a new or replacement pole on a city right of way?
  3. Does the act allow the wireless infrastructure provider or wireless provider or wireless service provider to determine the exact location for the installation of a new or replacement pole on a city right of way?
  4. If a new pole is installed on the city right of way, then in such event does the act allow the city to require that the pole be a decorative pole to fit aesthetically with the neighborhood? If the answer is in the affirmative, does the act further preclude pole placement if the neighborhood has underground utilities and the small-cell facility cannot be placed underground due to technical limitations?

Boone said he will send the questions to the attorney general but emphasized that the city and Crown Castle have mutually agreed to extend the approval of the plan for several months. However, Crown Castle does have the right to legally move forward with the plan if a ruling from the attorney general is not quickly forthcoming, Boone said.

"Under our ordinance, the time for acting on an applicant can be extended by negotiation between the City Council and the applicant," explained Boone. "If the applicant doesn't want to agree to it, then they can sue us, federal or state."

Boone added that if Crown Castle decides to pursue legal action that, in his experience, the attorney general is unlikely to rule on the matter at all.

Representatives from Crown Castle did not attend Monday’s City Council meeting.

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