When the town of Walla Walla, WA changed its municipal code in October of 2022, it allowed for developers to place wireless facilities in non-residential zones such as churches or offices, according to the Walla Walla Union-Bulletin. The Blue Mountain Community Church shortly afterward accepted a proposal from AT&T for a 65-foot cell tower at 928 Sturm Avenue, causing multiple protests from neighbors over the tower’s construction.
A Walla Walla City Attorney, Timothy Donaldson, told the council at a meeting last week the FCC has the last say over local jurisdictions when it comes to ordinances against cell tower development and any action would be a “preempt ordinance” and largely ineffective. Donaldson said local laws would be limited since current RF emissions levels have been deemed acceptable by the FCC and cannot be used as grounds to curtail wireless infrastructure development.
“Whether the FCC is doing its job or not doing its job is not something that the city of Walla Walla is able to police,” Donaldson said. “I want to be clear. This isn’t staff or myself saying that we don’t care or that we agree with what the FCC has done. I’m just simply telling you that again, in the pecking order of things, the federal government has said the FCC decides these things, not the city of Walla Walla.”
Donaldson said possible changes in the zoning code could offer a slim chance of moving the tower to another site by forcing cell tower applicants to show the tower fills a “significant gap” in coverage and is, therefore, a necessity.
AT&T’s area manager Lauren Paolini and Verizon representatives told the council a revised conditional use permit had been submitted in February for the church site. A lawyer representing AT&T, Maridee Pabst of Busch Law Firm said the “significant gap” test was rejected in 2018 by the FCC. She said the “materially inhibit” test has taken its place and many local jurisdictions have rewritten their codes to reflect the change. FCC mandated in 2018 local ordinances cannot be enacted that “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” In so doing, the FCC confirmed the precept that a legal requirement can “materially inhibit” service even if it is not an “insurmountable barrier.”
“In the end,” Pabst said, “AT&T asks that if the council decides to adopt an interim ordinance, it looked to have the language reflect the current state of the law.”
A representative for Verizon, Kim Allen, also spoke at the meeting and reiterated Pabst’s challenge to the Board to change the code and have it match current legal standards for placement.
“In my view, the City Council should continue ahead with a moratorium, and not allow us all to be bullied by the cell phone companies and the FCC,” one resident told the Union-Bulletin. “It does feel like a David and Goliath situation and the Blue Mountain Community Church is siding with Goliath.”
“We can only say we tried,” another resident said. “The majority of the City Council will again be trading our health, safety and environment for better cellular service and fulfilling the wishes of the cellular groups.”
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