Cellular Antennas on Historic Buildings

Visitor Question: A new local project development consists of a total renovation of a former factory building into condominiums. The building has historical provenance and lies within a defined historic district. The State Historic Preservation Office has identified the district with an opinion of eligibility for inclusion on State or National Register of Historic Places.

The developer has signed lease agreements with 2 telecomms for existing cellular antennas on the building roof and parapet.

The developer has also written a blanket easement into the Master Deed granting (in perpetuity) permission for them to do this, covering all existing antennas and any to follow in the future (9 originally, 6 added recently, and no limit).

All monetary proceeds will go to the developer, who will not maintain any ownership interest in the property after all of the condos are sold. Individual owners, or the yet to be formed Homeowners Association will have no control, although this will impinge on our property. No closings have occurred yet, but are expected to begin within the next month.

The developer has been asked to compromise on this easement to make it less onerous on the condo purchasers, and to also respect the historic significance of the property (as that was how it was marketed...) They have refused to negotiate.

In researching to see if other options were available, it appears that local zoning regulations speak directly to this situation:

There are 2 clauses which are very unequivocal: under Permitted Uses, pre-existing towers and antennas are prohibited "on structures listed on the federal, state or municipal register of historic places and on contributing structures to historic districts." And under Design Guidelines for antennas, "Minimum distance from any historic district boundary line, or to any designated historic site (national or state register) shall be a minimum of five hundred (500) feet."

Given that, my reading is that all of the antennas on the building - existing or yet to come - are non-compliant with these zoning regs.

This brings up many questions:
1) How then can these existing antennas be legal?
2) How do we find out if the original planning board project approval included any variance for these antennas? Or of any variances granted since then?
3) Who is responsible for filing for variances - the developer, or cell carriers?
4) How is a complaint re non-compliance filed - by a citizen direct to zoning board, or would a law suit have to be filed?
5) Timing: if a complaint is filed immediately, will the issue have to be resolved before closings can commence, or will this cloud the title? (The project is already way behind schedule and people are very anxious to move in.)
6) Alternatively, if a complaint is filed after closings have been completed, does this mean in essence the new owners (the HOA) would then become the non-compliant party? (In other words we'd be filing against ourselves?)

Any comments or advice would be greatly appreciated.

Editors Respond: As you seem well aware, this is a complex situation. It sounds to us as though the state or federal designation of the historic district may not be official yet. (Readers should be aware that the finding of eligibility at the state level simply triggers the beginning of a review at the federal level, and is not the same thing as having been listed on the National Register. State Historic Preservation Offices may decide whether they want to list the property on a state register or not, so in your state, a notice of eligibility may result in an automatic state listing, but this is important for you to find out.) You say that the building lies in a "defined historic district," so another possibility is that perhaps the area already has an official municipal designation.

We start with this point about whether historic district status has been achieved, or is only being expected. The enforcement of the zoning provisions you cite depends in part on whether the historic district designation is official or only pending.

Just to keep our answer manageable, let's assume that there is an official existing local, state, or national historic district designation in place. Then to answer your first question, we agree with you that the existing antennas are probably illegal. We say "probably" because you also have to consider what your zoning ordinance says about nonconforming uses, which means pre-existing uses of buildings or property that do not meet zoning requirements. But from what you quote, it sounds as if you have illegal antennas.

If a land use does not meet zoning requirements, no lawsuit should be required. You should be able to complain to your municipality or county (whoever imposes the zoning), and get administrative action that results in the use being discontinued. Enforcement is backed by the municipal court.

Moving on to your second question, you need to ask city staff to research whether the original planning approval contained any language that would allow the existing or future antennas. It is more likely that the planning approval requires compliance with all provisions of the zoning ordinance, but some planning approval ordinances do specify particular exceptions. You should be talking to the zoning administrator, who might be someone like a town manager in a smaller place, about this situation anyway.

Staff also can check on variances, which in most states are granted by a zoning board of appeals or adjustment, a separate body from the planning board. Variances should be granted only when strict application of the zoning ordinance would result in a unique hardship, but the process is sometimes abused.

If you learn at city hall that a variance would be required if the developer wants to both include the property in an historic district and continue the existing antennas and even place new antennas, be alert for either the developer or the cell phone company to request the variance. The owner/developer would have to at least consent to filing for the variance, but often the larger company no doubt, takes the lead role. In most places, but not all, a variance application is subject t a public hearing where interested parties can speak about your objections.

A citizen should be able to file a complaint about non-compliance with the zoning ordinance or the provisions of a development approval ordinance or formal development agreement quite easily by talking to your city hall. If a variance was granted and the developer has exceeded the terms of the variance, you also should be able to complain to the city.

Whether complaints would delay closings would vary by locale across the country. We know of no cases in which an oral complaint to a zoning official has been discovered by a title company and used to delay closings. However, if local title companies require municipal sign-off, that could be a problem. If a lawsuit is filed, that certainly would complicate a closing.

Your last question is intriguing and raises some other issues. We think it is quite possible that your HOA would be held responsible for a zoning violation when the developer no longer owns property. An analogy is that if I buy a house today, and tomorrow I receive a citation because my grass is 12 inches high rather than the allowed 8 inches, I am still the responsible party. Likewise, landlords are held responsible for actions of their tenants that violate the zoning ordinance.

In our years of municipal experience, we cannot think of one place where someone other than the current property owner is responsible for a zoning violation.

You also should think about liability, if the antennas fall or are blown off and cause property damage. This scheme of the developer keeping all the revenue from the antennas, eventually without having any ownership, seems full of potential legal problems.

Regardless of deed restriction language, property owners must follow both those restrictions and zoning. You developer's tactic of trying to write a guarantee of future antennas will not relieve him of the responsibility to follow the zoning ordinance also.

In sum then, your action steps would seem to be talking with the appropriate official at your city or county as soon as possible to determine more facts, and then deciding quickly what to do. Perhaps your city would talk to the developer on your behalf, as surely they will see the potential headaches. A city may not want to get involved in a private dispute, but this could become a zoning enforcement headache for them if antennas proliferate in an historic district.

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