'Not in My Back Yard!' Restrictive Covenants as Basis for Opposing the Construction of Cellular Towers
Buffalo Law Review, Vol. 46, No. 3, Fall 1998
Posted: 5 Apr 1999
This article addresses multiple issues surrounding the use of restrictive covenants as a basis for opposing the construction of cellular towers. Given the current proliferation of cell towers, and the frequent failure of zoning and land use regulations to address such construction in a comprehensive fashion, opponents of such towers often must turn to other options if they wish to avoid placement of towers in their neighborhoods. As a predicate for the discussion of a number of common restrictive covenants, and their potential application to cell towers, the article addresses the question of whether the Telecommunications Act of 1996 preempts reliance on restrictive covenants in this context. The article also considers standing to enforce covenants and the potential application of waiver since wireless service providers are likely to locate towers in areas where other towers or similar structures have already been built.
The article concludes that federal law should not preempt state law causes of action such as those which might be based on restrictive covenants and suggests that restrictive covenants may be a useful option for opponents of cell towers.
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