Construction of cell phone towers: Are adjacent landowners entitled to input?

Throughout Iowa, there is an increase in the number of cell phone towers and wind energy turbines dotting the rural landscape. Of utmost importance are the legal ramifications in regards to their construction and the challenges they present to rural landowners. In this case, the plaintiff, a landowner, challenged the construction of a cell phone tower built across the road from his home, on the basis that he was not given adequate notice of the hearing held regarding the issuance of a permit for the tower’s construction. But, the Iowa Court of Appeals affirmed the trial court’s ruling that the plaintiff was only entitled to notice by publication at least seven days before the time set for public hearing.

Upon learning that his neighbor was involved in negotiations over the construction of a cell phone tower on his property, the plaintiff investigated the matter with the county zoning commission and told his neighbor he did not want the tower built, as it would be located near his home. Months later, the negotiating company filed for a conditional use permit to construct the tower on behalf of the defendant. The zoning commission twice published notice of the public hearing in the newspaper.  The commission then recommended approval of the permit, and the county board of adjustment issued the permit. The cell phone tower was built by the spring of 2004.

After the tower was constructed, the plaintiff claimed he did not see the published notices and asked to attend a board of adjustment meeting to express his concern over the tower’s location. The board denied reopening the hearing and two years later the plaintiff filed a petition asking the court to remove the tower. The trial court dismissed plaintiff’s claims, saying that he was given adequate notice of the hearing at the time.

On appeal, the court noted that Iowa law requires that notice of a pending application for a conditional use permit must be reasonable under the circumstances. The plaintiff claimed that the board should have notified him by U.S. mail or by personal service. The court disagreed, ruling that published notice in a local newspaper at least seven days before the scheduled hearing was adequate notice under the circumstances.

So, rural landowners objecting to the construction of cell towers or wind turbines must be diligent in determining the time and place of public hearings. McClure v. Verizon Wireless, No. 7-394/06-0244, 2007 Iowa App. LEXIS 1061 (Iowa Ct. App, Oct. 12, 2007)