The long-delayed AT&T cell tower at the west end of Academy Drive has been erected. The tall, thick, white tower went up in late March, but lacked antenna installations as of April 2. But it was still a shock to villagers whose homes face east toward the Sandia Mountains. The tower is next to the old Academy Furniture Store at the rear of the Sandia View Academy property, and is most visible from the entrance to the Camino de la Tierra Subdivision. Residents’ calls to the Corrales Planning and Zoning Office began almost immediately, protesting the obvious violation of the Village’s height restrictions. But most were probably unaware that Village officials fought that battle and lost in federal court.
In 2019, Village officials acquiesced to AT&T Mobility’s demand that it be allowed to erect a 65-foot cell phone tower at the west end of Academy Drive, near Loma Larga. The Village’s decision to refrain from blocking the telecommunications tower came after its law firm advised in an August 9 memo that no obstacles be placed on AT&T’s intent to move ahead with construction.
The U.S. Tenth Circuit Court of Appeals denied the Village of Corrales’ appeal after lower courts earlier had ruled in AT&T’s favor. As attorney William Zarr of the Robles, Rael, Anaya law firm wrote, “The Village is required to immediately approve whatever permits AT&T may require to construct the wireless cell tower. “This presumes that AT&T intends to follow the same site development plan, engineering drawings, etc. that it presented to Planning and Zoning and/or to the district court as evidence. AT&T would still be required to obtain a building permit and follow applicable building codes.”
The U.S. Court of Appeal’s decision held that, “on the basis of uncontested facts properly before it, AT&T has demonstrated that the Village effective[ly] prohibited it from providing wireless service, in violation of the Telecommunications Act.” The Village had insisted its ruling against the proposed cell tower at the site adjacent to the old Sandia View Academy was not arbitrary and capricious, as AT&F asserted, and that the denial was consistent with precedent and policies.
The Village Council also argued that AT&T failed to show that the proposed facility would fill a significant gap in coverage, or that the desired improvements could not be achieved by placing the facility on higher terrain or using a shorter tower. According to the court filings, “The council also determined that the proposed facility would be visually intrusive, negatively affect the value of nearby residential property and impair the village’s rural residential, agricultural and open space qualities.”
Even so, the Village’s lawyers had warned that the 1996 Federal Telecommunications Act is weighted heavily in favor of telecommunications companies seeking to provide better and better coverage. A big obstacle here was that the Village had permitted other cell towers of the same height, including on its own municipal property… one of which was for AT&T.
And the Village conceded that the Academy Drive property in question had been used for commercial purposes for more than 30 years, but that other proposals for cell towers in that area have been denied repeatedly over the years. Perhaps key to the Village’s defense was the response, “Plaintiff’s claims are barred because the Village’s zoning regulations do not prohibit or have the effect of prohibiting the provision of personal wireless serves, as evidenced by the fact that Plaintiff presently leases a site on Village-owned property for the provision of personal wireless services in the Village.”
That refers to the cell tower between the Village Office and the Corrales Senior Center along East La Entrada. In an initial legal response, then-Village Attorney John Appel contended, “there is substantial evidence in the record to support the decision of the Village’s Planning and Zoning Commission and, on appeal, the decision of the Village Council… denying the application for a telecommunications facility on the specific site proposed by the Plaintiff.”
He further explained, the Village’s decision “is not arbitrary or capricious, but rather is consistent with long-standing Village policy and regulations that generally permit telecommunications facilities in areas primarily devoted to commercial and governmental activities, while not generally permitting them in dominantly residential and agricultural areas.”
And, he contended, AT&T had not shown that a cell tower that complied with the Village’s regulations, including the 26-foot height limit, would not be fully adequate for AT&T’s needs. The 1996 act adopted by Congress has also figured in prior rulings in Corrales that rejected cell towers. But until the AT&T project at the end of Academy Drive, other rejected applicants had not filed a lawsuit in federal court to overturn the Village’s negative ruling.
Plans for a cell phone tower on the old Academy Furniture property were first rejected by the Corrales Planning and Zoning Commission in April 2013. AT&T appealed that rejection to the Village Council which upheld the P&Z ruling. From there, it was off to courtrooms. (See Corrales Comment Vol.XXXII, No.7, May 25, 2013 “Sandia View Cell Tower Appeal.”)
As requested by Ron Turner, then-owner of the property within the Sandia View Academy complex, the communications receiver-transmitter for AT&T Mobility was to be taller than the Village’s land use ordinances allow. The request for a special use permit or waiver was denied. Erection of cell towers or radio towers in Corrales always has been controversial. Corrales’ land use ordinance imposes a 26-foot limit on anything constructed, so any proposal for a communications tower would need approval of a variance. Two previous plans for towers on the former Seventh Day Adventists’ property along Academy Drive were rejected amid nearby residents’ objections.
In recent years, the only towers taller than 26 feet which have been approved are those that include transmitters and receivers for Village emergency dispatch. Those are at the Village Office Complex just east of the Corrales Road intersection with East La Entrada, at the Main Fire Station farther north on Corrales Road and at the top of Angel Road. Back in September 2007, Corrales’ planning and zoning administrator warned that the density of cell phone towers would likely double in the near future, so the Village Council tightened up its regulations.
At a work-study session with the council and Planning and Zoning Commission September 26, 2007, then-P&Z Administrator Cynthia Tidwell said the proliferation of wireless phones and internet gadgets would likely force wireless telecommunications firms to get more aggressive about erecting towers here. “With all the new technology that allows you to get television and internet on phones and devices like your Blackberry, this is going to drive a doubling of the proliferation of towers that we see today because of their need for more capacity,” Tidwell advised. “They have to have more towers to be able to handle the traffic. What they have today will not handle the capacity that will be required by all these gadgets.”
Her warnings gave a sense of urgency to the council’s deliberations on a draft ordinance that the P&Z board had worked on over the previous year. As explained at the 2007 work-study session, the proposed law still would have restricted such a cell tower to just 26 feet in height, the standard limit on any structure in Corrales. Most of the discussion focused on where such towers might be permissible, skirting the question whether the telecommunications firms could legally challenge the 26-foot height restriction.
The 2007 recommendation from the P&Z commission was that future cell towers be restricted to Corrales’ commercial districts. Those areas are carefully defined in Village ordinances: 1) along Corrales Road between Meadowlark Lane and Old Church Road; 2) the “neighborhood commercial, office district” in the Far Northwest Sector adjacent to the Rio Rancho Industrial Park; and, most relevant in this case, 3) the commercially zoned parcels adjacent to the Seventh Day Adventists’ Sandia View Academy.
The commissioner who had done the most work on the proposed ordinance in 2007, former P&Z Chairman Stuart Murray (who now serves on the Village Council), explained why he did not want the proposed ordinance to allow cell towers on parcels of land zoned for municipal uses. He acknowledged that the two cell towers that then existed in Corrales were on M-zoned land (one at the Village Office complex between the Village Office and the Corrales Senior Center and the other in front of the main fire station).
But, Murray cautioned, the Village owns land all over the community, usually small remnants of subdivisions that might be about the right size for a cell tower and related structure. The existence of such municipally-owned parcels is largely unknown to the public, little more than an obscure reference on long-forgotten land plats.
The relevance of such “hidden” remnants became clear as Village officials moved ahead with plans to erect water towers on Village-owned land in the Far Northwest Sector next to the new fire substation and along Loma Larga south of Camino Arco Iris. In explaining why his draft of a new ordinance did not allow cell towers on M-zoned land, Murray said, “I didn’t want towers all over the village, and we have municipally-owned land all over the village.”
In Corrales, variance procedures for antennas and towers are basically the same as for other uses; it’s hard to get a variance. Under the section “Conditions for variance,” the ordinance says, “The Planning and Zoning Commission may deny any request for a variance that is based on conditions which are the result of the action of the applicant. Where the Planning and Zoning Commission finds that the strict application of the requirements of this article would result in a practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building, a variance may be granted provided that:
“• the variation of this article will not be contrary to the public interest;
“• the variation will not adversely affect adjacent property owners or residents;
“• the conditions are unique to the property; and
“• the variance is authorized only for lot controls and not for use of the premises.”
Those long-standing conditions for getting a variance have thwarted many applicants in the past.