BEFORE THE MARYLAND STATE BOARD OF EDUCATION x JANIS ZINK SARTUCCI, ET AL., Appellant v.

MONTGOMERY COUNTY BOARD OF EDUCATION, Respondent x

Opposition to Respondent's Motion to Dismiss

and Cross-Motion for Summary Reversal of Respondent's Action

Jennifer Kerchaert, Janis Zink Sartucci, Louis Wilen, Andrea Cernich, and Helga Smtis (Appellants) oppose the motion of the Montgomery County Board of Education (Local Board) to dismiss their appeal. Appellants also cross-move for summary reversal of the Local Board's decision that is the subject of their appeal. In support of this opposition and cross-motion, we state: There are no genuine issues or disputes of material facts regarding the illegality of the Local Board's decision to enter into an easement related to an unlawful lease of school property for a cell tower use. The issue presented is purely a legal question of the Local Board's authority to enter into an easement to support an unlawful lease for a cell tower. For reasons set forth in the attached legal memorandum, the Local Board is not entitled to judgment as a matter of law on its motion, and we are entitled to judgment as a matter of law.

Wherefore, we request that the State Board deny the Local Board's Motion to Dismiss

and grant our motion for Summary Reversal of the Local Board's action.

BEFORE THE MARYLAND STATE BOARD OF EDUCATION

x

JANIS ZINK SARTUCCI ET AL.,

Appellant

v.
MONTGOMERY COUNTY BOARD OF EDUCATION, Respondent

MEMORANDUM IN OPPOSITION TO LOCAL BOARD'S MOTION TO DISMISS AND IN SUPPORT OF APPELLANTS' CROSS MOTION FOR SUMMARY REVERSAL Jennifer Kerchaert, Janis Zink Sartucci Louis Wilen, Andrea Cernich, and Helga Smits
,

(Appellants) submit this memorandum in opposition to the motion of Respondent Montgomery County Board of Education (Local Board) to dismiss and/or motion for summary affirmance. Appellants also submit this memorandum in support of their cross-motion for summary reversal of the local board's decision that is the basis of this appeal pursuant to Title 13 Code of Maryland, Regulation 13A.01.05.
Summary In 1997, the Local Board wrongly concluded that the Federal

Telecommunications Act of 1996 required that it make school real property available to private parties to erect commercial cell towers. In fact, the Act does not require this and, under Maryland law, a local school lacks the authority to do so.

Five years ago, staff at the Local Board, without board approval, unlawfully leased school property at Captain James E. Daly Elementary School to a private party to
erect a telecommunications facilities tower for commercial use. (Exhibit D)

On June 16, 2011, the Local Board approved an easement to facilitate the cell tower tenant's unlawful use of the Daly Elementary School property. Appellant Kerchaert has standing to appeal this decision to the State Board: she lives within 1/10 th of a mile (approximately 600 feet) of the school and is within the school boundaries; her children have attended the school and her future children will attend there; according to the methodology of the Maryland Tax Assessment Board, the cell tower has negatively impacted her property value. (Exhibit E) Appellant Kerchaert and the other Appellant's respectfully request that the State Board exercise its visitorial powers over the local board
and declare the easement, as well as the underlying lease, null and void. On the same day that the school board approved the easement for Daly

Elementary School, the local board approved easements for telecommunications transmission facilities leases of real property that staff, without the local board's approval, had entered into for the property at five high schools. Appellants have administrative standing to appeal these easements and respectfully request that the State Board declare those easements, as well as the underlying leases, null and void.

Questions Presented
This appeal raises the following questions under Maryland law:

Standing

1. Does a parent who resides within the boundaries of a Montgomery County elementary school have standing to appeal to the State Board an easement granted by the local board that supports an unlawful lease of real property at the school? Short Answer: Yes. An Appellant who lives nearby an elementary school and within that school's attendance boundaries has standing to appeal to the State Board the local board's land use decision related to that school real property. 2. Does Maryland law allow all parties to have standing if one party has standing? Short Answer: Yes. Maryland Courts have long observed that if one party if found to have standing, the court will not inquire as to the standing of other parties. 3. Does a Montgomery County resident have administrative standing to challenge a local board's decision to the State board?
Short Answer: Yes. Under principles of administrative standing, an Appellant has

standing to appeal a local board's decision to the State Board. Merits 4. May a local board lease its real property to a private entity for a purpose unrelated to its education mandate? Short Answer: No. The Maryland Attorney General has consistently concluded in legal opinions issued in 1991 and 2006 that a local board lacks the legal authority to lease its
property to a private entity for a purpose unrelated to its education mission.

5. Did the 1996 Federal Telecommunication Act preempt Maryland law to require a local board to lease its real property to a private party to install a telecommunications facilities tower (cell tower) that is unrelated to its education mandate?

Short Answer: No. While the 1996 Federal Telecommunication Act preempts Maryland
law with respect to local zoning authority, it does not preempt Maryland law to require a

local government owner of real property such as a local board to lease its real property to a private entity that wishes to install a cell tower.
6. Did the 1996 Federal Telecommunication Act preempt Maryland law to give a local board authority to lease its real property to a private party to install a cell tower where such authority does not exist under Maryland law?

Short Answer: No. The 1996 Federal Telecommunication Act does not authorize a local board to lease its real property to a private party for purposes of installing a cell tower that is unrelated to its education mandate. 7. May a local board grant an easement to its real property to support an unlawful lease of school real property?

Short Answer: No. A local board may not grant an easement over school property to
support an unlawful use of school real property.
8. Does Local Board Policy ECN Telecommunications Transmission Facilities, comply with the legal requirements of applications for Special Exceptions or Mandatory Referrals?

Short Answer: No. Policy ECN is in conflict with the legal requirements of applications for Special Exceptions for Mandatory Referral.

BACKGROUND
In 1996, Congress passed the Telecommunications Act of 1996. The Act overhauled U.S. telecommunications law for the first time in 62 years. With respect to

cell phones, the Act restricted the authority of local governments to use zoning authority with respect to the location of cell towers. In 1997, attorneys for the Local Board advised the board that the Telecommunications Act required it to have a policy in place with respect to cell tower location on school property. Below are minutes from the Local Board's April 23, 1997 meeting:

[Board member] Ms. Signer inquired that as public agency, MCPS cannot refuse to accept telecommunications equipment? [Local Board outside counsel] Mr. Molinaro responded that the law requires that local and state governments to review the requests and treat them fairly, legitimately, and not in an arbitrary manner. Under this law, there is an obligation to have a process for review. Ms. Signer stated that her preference was not to place telecommunications facilities on school property. (Exhibit F)
Pursuant to this advice, the Local Board adopted Policy ECN. Under the Policy, Local Board took the following position: The Board of Education supports federal and county legislation relating to the infrastructure of modern telecommunications systems and wishes to implement these laws without contravening the primary mission of the organization which is to provide a safe and supportive environment for the academic success of every student. Policy ECN at p. 1. Staff at the Local Board has entered into cell tower leases at the following high schools: Springbrook High School, Magruder High School, Albert Einstein High School, Wheaton High School, and Watkins Mills High School. Daly Elementary School is the only elementary school at which staff and the Local Board has unlawfully leased school

property to a private party to install a cell tower. Each of the leases is for a five year period with an option to renew for an additional five-year period.

At the June 16, 2011 meeting, Local Board voted to approve granting easements to the above six school properties that the private leasees claim are necessary to operate the telecommunications transmission facilities.

LEGAL DISCUSSION

Appellant Kerchaert Has Standing

Since 1983, the State Board has required a person seeking review of an administrative decision to demonstrate that she would be -aggrieved by the final decision. In order to be an aggrieved party, a person ordinarily must have an interest such that [she] is personally and specifically affected [by the agency's final decision] in a way that is different than the general population." Krista Kurth et al. v. Montgomery

County Bd. of Educ., MSBE Op. No. 11-38 (2011) at p. 5, citing Sartucci v. Montgomery County Bd Of Educ., MSBE, Op. No. 10-31 (2010).
Where, as here, an appellant is challenging a land use decision by a local board, the State Board has held that it is appropriate to apply standing criteria from land use cases so that an appellant who is an adjoining, confronting, or nearby property owner is deemed, prima facie, a person aggrieved. Kurth, MSBE Op. No. 11-38 at page 6.

In Kurth, the local board had voted to lease real property to the local County for the
purpose of constructing and operating ball fields.

It cannot be seriously denied that the construction and operation of ball fields on the property will have some tangible effect on the residences in

the immediate vicinity of the property . . . . The fact that the .. . Appellants own land either adjoining or in close proximity to the . . . Site leads to the inescapable conclusion that these land owners would suffer an injury different from the public generally.
Kurth at p. 6. Appellant Kerchaert satisfies the criteria for being deemed to be, prima facie a
,

person aggrieved and therefore to have standing. She resides 1/10 th of a mile from Capt.

James E. Daly Elementary School, one of the schools involved in the appeal. Her home
is located within the school's boundaries: one of her children has attended the school and

future children will attend there. Further, the Maryland Property Tax Assessment Appeals Board has recognized that a home located near even a likely site of a cell tower suffers a decline in value, and therefore assessment base, because of the proximity. See the attached exhibit. Based on the Tax Assessment Appeals Board's methodology, Appellant Kerchaert has suffered a

decline in value of her home, which would be remedied by the State Board declaring the
unlawful lease null and void. Thus, by the standard for standing that the State Board has

traditionally applied, Appellant Kerchaert has standing.

With respect to the other Appellants, Maryland courts have frequently repeated:

"It is a settled principle of Maryland law that, 'where there exists a party having standing
to bring an action . . . we do not ordinarily inquire as to whether another party on the same side also has standing." Chesapeake Bay Foundation, Inc. et al. v. David Clickner,
et ux., 192 Md. App. 172, 191, 993, A.2d 1163, 1175 (2010); citing Garner v. Archers

Glen, 405 Md. 43, 54, 949 A. 2d 639 (2009) (quoting Sugarloaf Citizens ' Association v. Dept. of Environment, 344 Md. 271, 297, 686 A. 2d 605 (1996) quoting in turn, People 's

Counsel v. Crown Dev. Corp., 328 Md. 303, 614 A. 2d 553 (1992)). Thus, the State Board need not inquire as to the other Appellants' standing with regard to the issues raised by Daly Elementary School.

Standing to Appeal the Easements at the Five High Schools With respect to the easements related to the unlawful leases at the five high school property, the Appellants have standing based on Maryland's long-observed administrative standing. Maryland courts have long observed the difference between standing before an administrative agency like the Maryland Board of Education and before a circuit court. In the former case, a lower level of standing applies: Thus, a person may properly be a party at an agency hearing under Maryland's relatively lenient standards for administrative standing but not have standing in court to challenge an adverse agency action. The requirements for administrative standing are not very strict. Absent a statute or a reasonable regulation specifying criteria for administrative standing, one may become a party to an administrative proceeding rather easily. Sugarloaf v. Dep't of Environment, 344 Md. 271, 686 A.2d 605 (Md. 1996). The State Board has taken different positions with respect to administrative standing. In Hearn v. Montgomery County Bd. of Educ., MSBE Op. No. 09-20 (2008),

the Appellant asserted administrative standing and the State Board implicitly granted
standing and ruled on the merits of the appeal. In Sartucci v. Montgomery County _Rd of

Educ., MSBE Op. No. 10 31 (2010) and Kurth et al. v. Montgomery County Bd. of Educ.,
-

MSBE Op. No. 11 38 (2011), however, the State Board indicated that, in the context of
-

an appeal of a decision of one administrative body to another administrative body, i.e.,

from a local board to the State Board, administrative standing principles apply only at the local board level. 1 In a 2010 decision, the Maryland Court of Special Appeals rendered an opinion in

Chesapeake Bay Foundation v. Glickner that calls into question the State Board's view
that administrative standing only applies at the local board. 2 The Glickners had applied to Anne Arundel County for a zoning variance to permit them to construct a driveway and other improvements on property they owned that was located within the Chesapeake Bay Critical Area, and the County granted the application. The Chesapeake Bay Foundation appealed the decision to the Anne Arundel County Board of Appeals. The Board of Appeals dismissed the Foundation's appeal for lack of standing, rejecting the application of administrative standing. 3 As the State Board has suggested, the Board of Appeals ruled that the more lenient standing criteria for administrative standing apply only in the absence of a statute or requirement specifying different criteria for administrative standing. Like the State Board, the County Government had adopted a stricter aggrievement" standard for appeals to the Board of Appeals. The Board ruled that the Foundation lacked sufficient injury to have standing. The Foundation appealed to the Circuit Court, which affirmed the Board's ruling.
The Foundation then appealed to the Court of Special Appeals. The Court of Special Appeals reversed, concluding that the Board has misapplied the "aggrievement"
Sartucci at. p. 7; Kurth at p. 4. In neither case, however, did the State Board's views about administrative standing preclude review. In Kurth, the State Board found that the Appellants satisfied the "aggrieved" requirement. In Sartucci, even though the "aggrieved" requirement was not met, the State Board decided to exercise its broad visitorial powers over the Local Board to rule on the appeal.
2

Chesapeake Bay Foundation, Inc. et al. v. Clickner et (Chesapeake Bay Foundation).

192 Md.App. at 180-180; 993 A. 2d at 1168-1169.

ux., 192 Md.App. 172, 993 A. 2d 1163 (2010)

requirement. While the Court's decision did not turn on the Board's ruling not to apply a more lenient administrative standing requirement, it sent a strong signal to the Circuit Court that it should reevaluate the Board's refusal to apply the more lenient standard.` The Chesapeake Bay Foundation decision raises several questions about the State Board's decision to apply standing criteria that is stricter than the default lenient administrative standing. First, the decision calls into question the appropriateness of an administrative agency that reviews the decisions of another administrative agency, as the State Board does with respect to a local board action, from using the relatively restrictive
judiciary-based standing requirement of showing injury/aggrievement. The State Board began using the current injury/aggrievement standing requirement in a 1983 decision, Adams v. Montgomery County Bd of Edw.,

MSBE Op. 83 14 (1983). 5

-

The Adams decision contains no discussion of the default more lenient administrative standing concept even though discussion of it predated the 1983 decision. 6 Nor does the
Adams decision contain any discussion to link its decision to import a judiciary

injury/aggrievement standing requirement to the relevant Education Article provision, which requires the State Board to "decide any controversy or dispute arising under these provisions." While it is true, as the State Board has noted in Sartucci, supra, that the Court of Appeals has recognized that administrative agencies have discretion to establish policy either
4 5 192 Md.App. at 186-187; 993 A. 2d at 1172, 1173.

The Adams decision came four months after the Maryland Court of Appeals reversed, in Board of Education of Garrett County v. Lendo, 295 Md. 55, 453 A.2d 1185 (1982) the State Board's then longstanding policy of not allowing appeals from a local board's personnel decisions as a matter of right. The Adams decision, however, contains no mention of the Lendo decision. 6

See, e.g., Morris. v. Howard Res. & Dev. Corp., 287 Md. 417, 423, 365 A.2d 34 (1976).

10

through adoption of regulations or through ad hoc contested case adjudications, 7 the decision cited was not a discussion of the State Board's setting aside the administrative

standing criteria in favor of the more restrictive injury/aggrievement requirement.

The Appellants respectfully request the State Board to reexamine its use of the

restrictive judiciary standing requirements and whether it is consistent with the statutory
requirement that the General Assembly has imposed upon it.
In any case, because the easements at the five high school raise the same issues as

the easement at the Daly Elementary School, in the alternative, Appellants respectfully
request that the State Board exercise its broad visitorial powers, as it did in Sartucci, to

declare the unlawful easements and leases null and void.

A Local Board Lacks the Legal Authority to Lease its Real Property to a Private Entity for Purposes of Installing a Cell Tower That is Unrelated to its Education Mandate
A local board holds its real property in trust and may use such property for

purposes that advance its mission of providing public education in its county. g In 1991, the Attorney General was asked to render a formal legal opinion on
whether a local board could permit the construction and use of a building by a private

corporation on school property. The private corporation planned to use the building to

Sartucci, supra, at p. 8, citing Baltimore City Board of School Commissioners v. City Neighbors Charter
School, 400 Md. 324, 345 (2007). 8 Education Article 4-114.

11

provide child day-care services. 9 The Attorney General concluded that such a transaction was outside the powers of a local board. In its analysis, the Attorney General noted that the General Assembly had given a local board various powers regarding real property. A local board could acquire land, school sites, or buildings and could rent, repair, improve, and build school buildings or approve contracts to do so, with the approval of the State Superintendent and in conformance with the bylaws, rules, and regulations of the State Board of Education. A local board could also find that any land, school site, or building "no longer is needed for school purposes," causing the transfer of such school by the board to the county government. A local board also selects school sites (holding public hearings on its selections), and may employ architects for the construction and remodeling of school land, sites, or houses adapted to school purposes. A local board may even bring condemnation proceedings to acquire land required for any school purpose. The Attorney General noted that none of these statutory purposes expressly gave a local board authority to allow school property to be used for non-school purposes.

To the contrary, they appear to limit a local board's discretion to the acquisition, construction, improvement, and conveyance of land and buildings for school purposes. That these general provisions do not authorize non-school uses of
school property is confirmed by the fact that other, more specific

statutes do. In 1969, the General Assembly enacted legislation not only authorizing but requiring local boards to permit the use of public schools for non-school purposes. The difficulty, however, is that the type of arrangement under consideration in Baltimore County was apparently not contemplated by the Legislature.
9

PUBLIC SCHOOLSAUTHORITY OF LOCAL SCHOOL BOARD TO PERMIT CONSTRUCTION OF PRIVATELY OWNED DAY CARE CENTER ON SCHOOL LAND, 76 Opinion of the Maryland Attorney General 147 (February 1, 1991) (1991 Maryland Attorney General Opinion).

12

In short current law was not fashioned with this use of unimproved school land in mind and does not easily accommodate it. We recommend that the General Assembly clarify the authority of local boards in this respect. 1

In 2006, the Maryland Attorney General Confirmed that a Local School Board Lacks the Authority to Lease School Property for Non-School Purposes

In a 2006 Opinion, the Maryland Attorney General was asked to opine on the opinion of the Harford County local board attorney that a local board lacks the authority to lease school property for non-school purposes." The Harford local board was considering entering into 99-year lease under which it would lease school property being used to park school buses to a private entity. Citing the 1991 Maryland Attorney General Opinion, the Harford County school board attorney concluded that no authority existed for such a lease. The Maryland Attorney General ratified the local board's conclusion. In his opinion, the Maryland Attorney General considered the impact of a 2004 amendment to the Education Article. In 2004, the General Assembly amended section 4-114(c) to add subsection 1: [A] private entity may hold title to property used for a particular public school or local school system if the private party is contractually obligated to transfer title to the appropriate county board of a specified date. 12
1991 Maryland Attorney General Opinion at p. . In the following legislative session, in 1992, the General Assembly amended the Maryland education law to fill the legislative gap by expressly authorize a local school board to lease real property for the purpose of constructing a day-care facility. See ED 71 09(a)(3).

io

PUBLIC SCHOOLSAUTHORITY OF LOCAL BOARD TO ENTER INTO TRANSACTION INVOLVING LONG TERM LEASE OF SCHOOL PROPERTY FOR COMMERCIAL USE. 91 Opinion of the Maryland Attorney General 33 (January 30, 2006) (2006 Maryland Attorney General Opinion).
12

Maryland Education Article, section 4-114(c)(1).

13

The Maryland Attorney General concluded that the 2004 amendment was part of legislation intended to implement the recommendations in the Final Report of the Task Force to Study Public School Facilities (February 2004). Among other things, the Task Force recommended that local boards be permitted to use "alternative financing methods" to finance public school construction. Alternative financing methods authorized by the 2004 legislation include "sale-leaseback arrangements, where a county board agrees to transfer title to a property, including improvements, to a private entity that simultaneously agrees to lease the property back to the county board." I3 The Task Force Report recommended that the requirement that a local board hold title to property in order to receive State funds should be waived under a sale leaseback arrangement "if the lease specifies a future date when the title will revert from the private developer to the [local board.]" 4 Thus, it appears that Education Article 4-114(c)(1) was added to allow for sale-leaseback arrangements for school buildings and similar alternative financing methods under Education Article 4-126(a)(1), I5 In a telephone conference on April 21, 2005 with State School Superintendent Nancy Grasmick, Valerie Cloutier, then Principal Counsel for the State Board of Education/MSDE, stated informally to the Harford County General Counsel that the

13 14 15

2006 Maryland Attorney General Opinion at 33; see ED 4-126(a)(1). 2006 Maryland Attorney General Opinion at p. 33-34, footnote 1, citing Task Force Report p. 41.

See Advice Letter of Office of the Maryland Attorney General to Mrs. Jacqueline C. Haas, Superintendent of Schools for Harford County dated September 21, 2004, at page 5, referenced in the November 22, 2005 Legal Opinion of Patrick P. Spicer, Esq. General Counsel to the Harford local school board, which is attached to the 2006 Maryland Attorney General Opinion at p. 41.

14

opinion of the Maryland Attorney General's opinion at 76 Op of Maryland Attorney General 190 could be interpreted broadly, in light of the 2004 legislative initiative to authorize the Board to enter into the ninety-nine year lease. The Harford County school board's attorney rejected this view and the Attorney General implicitly concurred with the Harford County school board general counse1. 16 Like the lease at issue in the 2006 Maryland Attorney General Opinion, the Local Board lease of real property to an private party to install a commercial telecommunications transmission facility (cell tower) is not among the alternative financing methods authorized under Education Article 4-126(a)(1). Thus, ED 4114(01) does not apply to this transaction and the 2004 amendment of the statute does not affect the conclusion that a local board lacks the authority to lease its school property for non-school use.

The Federal Telecommunication Act of 1996 Does Not Preempt Maryland Law to Require the Local Board to Lease its Real Property for Cell Towers or Expand

Maryland Law to Authorize Such Leases

The Local Board argues that the Federal Telecommunication Act of 1996 (1996 Telecommunication Act) requires it to lease its real property to a private party that wants to erect a commercial cell tower.
As an owner of public land, the County Board is subject to the requirements of the Federal Telecommunication Act of 1996 and cannot adopt a policy that has the effect of prohibiting the provision of personal wireless services. The County Board recognized, in 1997, that it could earn profitable rental fees by leasing a portion of school property to a telecommunication company and could promote the public interest by colocating several providers on the same cell tower. The County Board was
16

2006 Maryland Attorney General Opinion at p. 41, footnote 6.

15

aware of both the benefits and the legal requirements involved in cell towers when it adopted a policy establishing criteria for the review and approval of Telecommunication Transmission Facilities. See Minutes of the 1997 Board meetings. (emphasis added)" This position is consistent with the advice that attorneys for the Local Board gave the Local Board when it adopted Policy ECN. Below are minutes from the local board's April 23, 1997 meeting:

[Board member] Ms. Signer inquired that as public agency, MCPS cannot refuse to accept telecommunications equipment? [Local School Board outside counsel] Mr. Molinaro responded that the law requires that local and state governments to review the requests and treat them fairly, legitimately, and not in an arbitrary manner. Under this law, there is an obligation to have a process for review. Ms. Signer stated that her preference was not to place telecommunication facilities on school property. (Exhibit F

In fact, on its face, the 1996 Telecommunication Act does not require or authorize a
Maryland local board to lease its property to erect a commercial telecommunications transmission facilities tower. Section 704(a) of the Act amends section 332(c) of the Communications Act of 1934 to add a new paragraph (7), which provides: (7) Preservation of local zoning authority (A) General Authority Except as provided in this paragraph [7], nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations (i) The regulation of the placement, construction, and modification of personal wireless service facilities by an State or local government or instrumentality thereof (I) shall not unreasonably discriminate among providers of functionally equivalent services; and
17

Respondent Local board's Memorandum in Support of Motion to Dismiss, p. 6.

16

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
***

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent such facilities comply with the [Federal Communication Commission's] regulations concerning such emissions. (emphasis added) 18

In response, local jurisdictions amended their zoning ordinances to comply with section 704(a). The Local Board's Policy ECN presumes that Federal law preempts State and local law to require it to allow cell towers on its property. The Supremacy Clause of the U.S. Constitution, Article VI, cl. 2 invalidates state laws that "interfere with, or are contrary to federal" Federal law. When Federal law preempts State law, it prohibits a state or local government entity "from regulating within a protected zone, whether it be a zone protected and reserved for market freedom or for Federal agency jurisdiction. On its face, section 704(a) of the 1996 Telecommunication Act preempts to a certain degree a local government's authority to regulate cell towers under its zoning authority. Section 704(a), however, does not preempt Maryland law to dictate that a State or local government or instrumentalities thereof such as a local board must make real property that it owns available for the location of a cell tower. This is made clear by section 704(c) of the Act, which requires the President of the United States or his designee to prescribe procedures by which Federal departments and agencies may make available property, rights or way, and easements under their control for the placement of new telecommunication services that are dependent upon the utilization of Federal
18

Telecommunication Act of 1996, section 704(a), P.L. 104-104 (47 U.S.C.A. 332(cX7)).

17

spectrum rights for the transmission or reception of such services. 19 Section 704(c) makes clear that, if Congress wanted to require that State and local governments make

their real property available for cell towers, it knew how to say so. Most importantly, section 704(c) further provides:
The [Federal Communication Commission] shall provide technical support to States to encourage them to make property, rights-of-way, and easements under their jurisdiction available for such purposes. 2

The above language of section 704(c) makes clear that Congress did not intend to preempt Maryland law to require the Local Board to make its real property available for the installation of cell towers. The Federal Second Circuit Court Decision This plain meaning of section 704 of the 1996 Telecommunication Act was confirmed by the Federal Appeals Court for the Second Circuit in Sprint Spectrum v. Mills. 21 The case arose from a dispute between Sprint and a local school district in
Ossining, New York. In September 1998, Sprint and the Ossining Union Free School District in Ossining, New York, entered into a five-year lease agreement permitting Sprint to install a cell phone tower on top of Ossining High School. Under the arrangement, Sprint was to pay the School District an annual rent of $30,000, escalating by at least three percent per year. The lease allowed Sprint to make such periodic technological improvements at

the cell site as it deemed necessary.

19

Telecommunication Act of 1996, Section 704(c). Id.

See 47 USCA 332(c) note (West 2011)

20

21

Sprint Spectrum L.P. v. Mills, 283 F.3d 404 (2d Cir. 2002).

18

In October 1998, Sprint and the School District agreed to incorporate into the lease a one-page addendum dealing with the density of radio emissions from the proposed antenna in terms of the number of microwaves per square centimeter. On March 28, 2000, Sprint informed the School District that changes in available equipment required it to modify its original installation plan. One of the changes would increase the levels of radio frequency (RF) emissions generated by the facility, although the levels would remain in compliance with FCC safety standards. On July 5, 2000, when a Sprint construction crew attempted to begin work on the antenna, the School District barred the crew from access to the High School. Citing its concerns for the health and safety of the school's students, the School District took the position that it would not permit Sprint to install the facility unless Sprint agreed to operate the facility at or below the RF emissions levels set out in the addendum. Sprint pointed out to the School District that the RF emissions levels stated in the Addendum were 13,000 times below the maximum levels set by the applicable federal safety standards. It also stated that in the period after the addendum was executed, technological advances had made Sprint's originally planned equipment obsolete. With the new technology, Sprint could not operate at the low RF emissions levels outlined in the addendum. Although Sprint guaranteed the School District that the new antenna

would operate at levels below the maximum set by the FCC, the School District insisted
that it would not allow construction unless Sprint operated at or below the levels set forth in the addendum. Unable to resolve the conflict, Sprint filed a petition in federal district court seeking an order compelling the School District to allow Sprint to install the antenna on the High School.

19

The federal district court ruled in favor of Sprint Spectrum and the Ossining
School Board appealed. The Federal Appeals Court for the Second Circuit reversed.

The Second Circuit recognized that section 704(a) preempts State and local governments from regulating the placement, construction, or modification of cell towers on the basis of health effects of radiofrequency radiation where the facility operates within levels determined by the Federal Communication Commission to be safe. 22 The Second Circuit ruled, however, that not all actions by state or local government entities constitutes "regulation," for such an entity, like a private person, may buy and sell or own and manage property in the marketplace. The Second Circuit quoted
the United States Supreme Court ruling in Building & Construction Trades Council v.

Associated Builders and Contractors of Massachusetts/Rhode Island, Inc 507 U.S. 218 (1993):
A state does not regulate . . . simply by acting within one of these protected areas. When a State owns and manages property, for example, it must interact with private participants in the marketplace. In so doing, the State is not subject to preemption by the [federal statute], because preemption doctrines apply only to state regulations. Boston Harbor, 507 U.S. at 227 (emphasis in the original). 23

The Second Circuit ruled: In determining whether such local action constitutes forbidden regulation, or instead constitutes permissible proprietary action, we find the Supreme Court's decisions in Boston Harbor and Wisconsin v. Gould, both of which involve preemptive reaches of the National Labor Relations Act (NLRB) to be instructive."

22 23

283 F. 3d at 417. 283 F.3d at 417.

20

In the present case, these principles lead us to the conclusion that the School Districts stance with respect to its lease with Sprint is not preempted. 24

In its Policy ECN, the Local Board committed to review the policy on an ongoing basis. There is no evidence that the Local Board reviewed its policy after the Second Circuit's 2002 opinion. In fact, most, if not all, of the telecommunications transmission facility leases that the Local Board staff has unlawfully entered into were done so after 2002. As demonstrated above, the Local Board does not have the authority under Maryland law. The fact that tenants have been occupying the unlawfully leased real property does not preclude the State Board from declaring the leases null and void.

In general, one who makes a contract with a government entity is bound to take notice of the limitations of its power to contract. No county board of education, regardless of local custom, has the right to ignore or circumvent the mandate of the legislature, and no custom, however venerable, can nullify the plain meaning and purpose of a statute.
Hanna v. Board of Education of Wicumico County et al.,
Md. , 87 A.2d 846, 850

(Md. Court of Appeals 1952).

Local Board Policy ECN states that it "establishes the criteria by which the Board of Education will evaluate and make decisions concerning applications to place private telecommunications transmission facilities on sites owned by the Board of Education." The Local Board did not review, discuss or vote on any of the telecommunications

transmission facilities placements listed in the Consent Agenda that is subject of this appeal.
24

283 F.3d at 417-418.

21

For each Consent Agenda item (Exhibit A), the memorandum from the Superintendent states that "staff in the Department of Facilities Management negotiated a Lease
Agreement for Telecommunications..."

None of the Consent Agenda memoranda detail

the Local Board evaluation or decision making with regard to these telecommunications transmissions facilities. No minutes exist to support compliance with Policy ECN by the Local Board. The Local Board never discussed or voted on the placement of the six telecommunications facilities towers listed on the June 16, 2011 Consent Agenda.

Local Board Policy: ECN Telecommunications Transmission Facilities is in conflict with Montgomery County, Maryland law

Local Board Policy ECN Telecommunications Transmission Facilities, Section E (4) states that: The superintendent will receive the M-NCPPC Report or Board of Appeals decision and any other relevant information and make a decision concerning the application. M-NCPPC (Maryland-National Capital Park and Planning Commission) and the Board of Appeals cannot review an application without the consent of the land owner. The land owner for public schools is the Local Board. In order for M - NCPPC or the Board of

Appeals to consider a request to construct a telecommunications transmission facility

tower, the Local Board as land owner must have already approved the construction of the tower on the public school property.

")

In Montgomery County, a petitioner for a special exception must have a legal right to prosecute the petition.

If Petitioner is not the owner of the property involved, lease, rental agreement, or contract to purchase by which Petitioner's legal right to
prosecute the petition is established.

(Section 59-A-4.22, Montgomery County Code 1994, as amended)

In the 2011 Special Exception S-2795 matter before the Montgomery County Board of Appeals, on the proposal by T-Mobile to place a telecommunications facilities tower at Local Board property Sligo Middle School, the petition for the Special Exception was withdrawn when the Board of Appeals was advised that the property owner, the Local Board, had not consented to the construction. (Exhibt G) Policy ECN does not annunciate a procedure that can legally be followed with respect to an application for a Special Exception in Montgomery County. A Special Exception can not be granted prior to the permission of the land owner to proceed with the construction. The Mandatory Referral process requires the agency that owns the land to file the application. All formal requests and applications must be from the head of the applicant agency or a representative public official of the agency and addressed to the Director of the Department of Park and Planning. Uniform Standards for Mandatory Review Process, Section III, April 19, 2001, Updated January 2, 2008.

Policy ECN states that the Mandatory Review process and the granting of Special Exceptions are to be accomplished without the consent of the Local Board. Policy ECN is clearly in conflict with Montgomery County laws, invalid and unenforceable.

23

Superintendent does not have authority to sign for Board of Education

The Local Board did not respond to this allegation in Appellant's complaint. The Local Board is conspicuous by their absence of a response to this allegation. All of the leases that were the subject of the June 16, 2011 Consent Agenda (Exhibit C) clearly contained a signature line for the -Board of Education". On each of those leases the signature beneath the "Board of Education" was that of the superintendent only. None of the leases contained the signature or authorization of the Local Board. Policy ECN does not authorize the Superintendent to sign telecommunications facilities leases on behalf of the Local Board. As the Local Board states in their response to this appeal, an action of the Local Board is recorded by the signature of the Local Board President. The Local Board states on page 7 of their Memorandum, " ...once approved, authorized the Board President and
the Superintendent to execute...".

In each of the leases in Exhibit C of the Appellants

Complaint, the Local Board signature that would have signified Local Board action was absent.

24

Conclusion For the reasons stated above, Appellants request that the State Board rule the six easements, and the underlying leases, null and void.

A*,
ti

1 .!

71

-.4, .7

*14.

4VN.4"?..=
1.4 '

ell,

Daly Elementary School 20301 Brandermill Drive Germantown, Maryland 20876 Telecommunications Transmission Facility (Cell phone tower)

Exhibit D.1

Daly Elementary School

20301 Brandermill Drive Germantown, Maryland 20876 Telecommunications Transmission Facility (Cell phone tower)

Exhibit D.2

STATE OF MARYLAND
PROPERTY TAX ASSESSMENT APPEAL BOARD FOR MONTGOMERY COUNTY Tel, No. 301-279-8333 51 MONROE PL. k 201, Rockville, MD 20850 FAX # 301-279-1913

TO:

COPY TO: DEPT OF ASSESSMENT

COPY TO; DEPT OF r:INANCE

MONTGOMERY CO GM/

SALVER SPRING

MD 20903 - 133e

ANC TAXATION 30 \PI GLIDE DR g 400 ROCKViLLE MD 20850

255 Rockville Pke LL15

ROCKVILLE MD 20850

PTA6.B APPEAL Number: Date of Hearing: Property ACCOUNT Number:

Property under appeal:

min.
MARCH 2C I

(Tax Year 2010)

ORDER

Date: ',APRIL 2011

This is to that the Proper-..; Tax Assessment Appeal Board considered the above numbered case and - as ruled that 1! . e netts. -~1.4,liatr:.n by the Department of Assessments and Taxatior be reversed. Comparables warrant a reduction in 7-'7:it:ability of neighboring cell tower also

affects %/slue negatively.

Adjusted New Market Value Land: Improvements: Total
. 1/54440,...izavt.

snyarnsunder Viswanatha (Or LSAM''.

CLERK TO THE BOARD

IMPORTANT NOTICE.
If disagreeing with above decision of the Board, you have the right to appeal (within 30 (thirty) days from date of this Order) to the Maryland Tax Court. under tie provisions of the Tax-Property Article, Section 14-512 of the Annotated Code of Maryiano. To appeal, make a copy of this Order, attach with an appeal letter ecoressed to Mary!and ; ax Court, 301 West Preston Street Stjte#1513, Ealtimore, MD 21201 and send it to them, You may obtain ,..ittler information, requirements and instruct;ons about Maryland Tax Cour: by ca: .a them at 410 767 4830 or by visiting their website: wv.rw.crt.state. md . us.

Exhibit E

Board Minutes

- 14 -

April 23, 1997

Re:

TELECOMMUNICATIONS TRANSMISSION FACILITIES

Dr. Vance invited the following people to the table: Mr. Terry Brooks, substituting for

Mr. William Hussman, chairman of the Montgomery County Planning Board; Ms. Ann Muller, county tower coordinator; Mr. David Fischer, associate superintendent for the Office of Supportive Services; Mr. William Wilder, director of the Department of Facilities Management; and Mr. Michael Molinaro, counsel for MCPS. Ms. Muller presented the background for the need for cellular communication facilities. Over the past several years, cellular communication has become almost commonplace. An effective cellular communications system has become an important part of the economic and business infrastructure as well as a convenience for personal communications. However, as users know, the quality of service varies depending on topography and intensity of use. Current technology solves reception problems through construction of more cell sites at more locations and installation of more antennas. While there have been several requests to place cellular monopoles on MCPS sites, none has yet been approved. There are two applications from Cellular One that have been forwarded to MCPS--one to install an antenna on an extended stadium light pole at Paint Branch High School and another to place a monopole at the Randolph Maintenance Depot. Recognizing this growing need for telecommunications infrastructure, the federal government enacted the Telecommunications Act of 1996. Montgomery County followed with Bill 5 - 96 and related zoning text amendment 95208. In general, this legislation requires the school system to develop a plan about the placement of private telecommunication facilities on school sites. Based on a county executive regulation, the coordinated process has taken the form of a Telecommunications Transmission Facility Coordinating Group supported by the county's contract tower coordinator. Montgomery County Public Schools (MCPS) representatives have served on that group since its inception. The county's zoning text amendment tries to reduce the number of transmission facilities that may be placed in neighborhoods. It permits antenna installation as a matter of right on tall buildings and co-location of antennas as much as possible. Any proposed tower or pole must permit the installation of at least three antennas. In addition, such installations are permitted on public property subject to the relevant mandatory referral or special exception
review procedures. Mr. Brooks reported that the Maryland-National Capital Park and Planning Commission has

proposed using its "Public/Private Development Guidelines" to provide a fair process for

Exhibit F

Board Minutes

- 15 -

April 23, 1997

evaluating proposals. In addition, they require applicants to answer the following six questions: 1. 2. 3. Are there alternative sites to parkland? Is the proposed use decidedly required on park property in order to serve the greater public interest? Is the proposed use compatible with the department's mission, and would the
proposed use substantially detract or contribute to the department's shortterm and long-term goals?

4.
5.

Is the proposed use compatible and consistent with the purchase intent and
development plans for the parcel that would receive the project? What form of compensation will be provided?

6.

Is the proposed use aesthetically and environmentally acceptable?

Mr. Wilder stated that although the federal act prohibits use of health concerns as a basis for denying placement of cellular transmission facilities on public property, communities continue to worry about potential health risks. These concerns focus on the effect of high frequency radio waves and related electromagnetic fields on children. Although many studies conclude that no deleterious effects have been proven, others indicate some basis
for concern. No studies have been running long enough to evaluate the long-term impact of high frequency radio waves on children. Consequently, concerned citizens caution that public policy should err on the side of avoiding any potential public health risks, especially for children. Other concerns raised by community groups include the aesthetic effect of such installations on neighborhoods and the potential damage that could be caused by a tower or pole falling

down. The zoning text amendment implicitly recognizes this latter risk by requiring the tower or pole to be setback the full extent of its height in residential zones.
No other school system in the state of Maryland has developed a policy or guidelines

relating to placement of cellular poles and none in the metropolitan area has any such installation. In February 1997, Fairfax County Public Schools adopted a policy granting leases for the placement of telecommunications transmission facilities on school property The policy indicates that requests shall be reviewed on a case by case basis, first-come, first-served. Requests will be evaluated on the basis of compatibility with the county comprehensive plan, impact on school operations, school and community input, rent, and co-location options. Ultimately, the impact of telecommunications transmission facilities on school operations is
of critical importance to all of us. Nothing should be allowed to interfere with our mission of improving the academic achievement of all our students. The safety of students and staff

Board Minutes

- 16 -

April 23, 1997

must be protected. To the extent possible, the aesthetics and the architectural integrity of the school site must be preserved. Schools must be mindful of being perceived as good

neighbors in the community. On the other hand, significant revenue from site rental would be expected to provide additional support to our instructional program. Finally, the Board of Education must be indemnified and held harmless from any and all liability related to such installations. The Board members raised the following issues and questions: 1. 2. Mrs. King stated that the community will accept them as long as the telecommunication facilities blend into the neighborhood. Ms. Signer inquired that as public agency, MCPS cannot refuse to accept telecommunications equipment? Mr. Molinaro responded that the law requires that local and state governments to review the requests and treat them fairly, legitimately, and not in an arbitrary manner. Under this law, there is an obligation to have a process for review. Ms. Signer stated that her preference was not to place
telecommunication facilities on school property.

3.

4.

5.

Ms. Gutierrez requested the status of draft policy for Board of Education review. Mr. Fischer stated that staff needed direction from the Board prior to drafting such a policy for review. Mr. Ewing stated that the Board should review a proposed policy and a limited sampling of other schools systems' policies would be helpful. MCPS' policy should be consistent with other agencies within the county, but augmenting that policy with the unique requirements of the school system. Ms. Prager questioned what the rents receipts would be, and who would receive them? Ms. Muller stated that agencies negotiate the payments and conditions, but receipts could run $1,500 per month, and the revenues would go to the leasing agency. Ms. Prager thought the safety and aesthetic issues can be resolved, and the school system should lease sites for telecommunications.
Ms. Gutierrez did not support encouraging the school system to lease sites for telecommunications, but the school system must comply with the law by developing a policy involving specific criteria and public input.

6.

Mr. Felton summed up the discussion by stating that the superintendent had a sense of the Board, and staff should move forward with a draft policy.
Re:
BOARD/SUPERINTENDENT COMMENTS

Dr. Vance stated that the Maryland General Assembly had increased state aid by $6.3 million for next year. Unfortunately, the additional funding may not be a clean gift. There may be strings attached and requirements on how the money is to be spent. The Education Committee has assumed with support from the County Executive and others that the

Board's budget request will satisfy the funding requirements. The Education Committee has

Law Office of Sean Hughes

6339 Ten Oaks Road Suite 305 Clarksville, Maryland 21029
(443) 542-9008

June L 2011 Office of Zoning and Administrative Hearings Stella B. Werner Council Office Building 100 Maryland Avenue, Room 200 Rockville, Maryland 20850 Attn: Lynn A. Robeson- Hearing Examiner
Re: Case S-2795- Petitioner's (T-Mobile) reply to the Hearing Examiner Order Extending the

Time for Closing the Record. dated May 23. 2011 Dear Hearing Examiner Robeson: Petitioner no sN, in light of Exhibit 72 which included letters dated April 14 and May 16_ 2011 from Mr. Song of MCPS and Ms. Steinberg of the Board of Education, which T-Mobile only received after the Hearing Examiner's May 23. 2011 Order. concurs with the request to dismiss the Petition (per Board of Appeals Rules of Procedure- 3.2.1. 3.2.2 and:or 5.0) or requests on its own action that the application be withdrawn. Since the landowner is no longer supportive of TMobile' s current application we recognize that the petition is now essentially moot and that
proceeding further is an improper use of public resources and not appropriate in light of

judicial/administrative economy. !lank N o U .

Sincerel .

Sean P. Hughes

Exhibit G