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Letter accompanying submission of zoning documents into evidence before the D.C. Zoning Commission

Cleveland Park Citizens Association

3404 Rodman Street, NW
Washington, DC 20008

Ms. Carol J. Mitten
Chairperson
Zoning Commission of the District of Columbia
441 4th Street, NW Suite 210 South
Washington, DC 20001

Re: March 5 Public Roundtable (Antenna Towers)

Dear Chairperson Mitten:

In response to the Commission's request at the March 5, 2001 roundtable, I am submitted for the record a copy of the March 23, 1988 opinion of Corporation Counsel, Frederick D. Cooke, Jr. to the Zoning Commission regarding "Alleged Federal Preemption of the Authority of the zoning Commission to Regulate the Size and Location of Antennas (Z.C. Case No. 84-10)." The statute cited by Mr. Cooke in his opinion is D.C. Code Sec. 5-428 which was enacted by Congress on June 20, 1938 (52 Stat. 801, ch. 534, § 12) and stated:

Construction.

Whenever the regulations made under the authority of §§ 5-413 to 5-432 [generally authority of the DC Zoning Commission and the Board of Zoning Adjustment and the zoning regulations] require a greater width or size of yards, courts, or other open spaces, or require a lower height of buildings or smaller number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in or under any other statute or municipal regulations, the regulations made under authority of said sections shall govern. Whenever the provisions of any other statute or municipal regulations require a greater width or size of yards, courts, or other open spaces or require a lower height of buildings or smaller number of stories or require a greater percentage of lot to be left unoccupied or impose other higher standards than are required by the regulations made under authority of said sections, the provisions of such other statute or municipal regulations shall govern.

I am also attaching a copy of the complete text of section 704 of the Telecommunications Act of 1996, which Mr. Franklin cited, which governs national wireless telecommunications siting and explicitly preserves local zoning authority (47 U.S.C. §332(c)(7)(A)). As noted by a number of the witnesses, the limitation on state and local governments or instrumentalities regulating the placement, construction or modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions only applies "to the extent that such facilities comply with the Commission's regulations concerning such emissions (emphasis added)." The Federal Communications Commission's Local and State Government Advisory Committee's Advisory Recommendations attached to my written testimony describe the various actions state and local governments can clearly undertake to determine if such facilities are in compliance with the FCC's emission standards.

Sincerely,

Ann Hume Loikow
Cleveland Park Citizens Association