Agenda - Planning Commission - 01/05/1999

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Z.B. December 24, 1998 -- Page 5 On March 11 the town published notice that it would hold a town meeting on March 30 to address the issue of communications towers. At the meeting, the town passed a six-month moratorium on any permits related to commercial communication facilities. It also postponed until May 20 the public hearing on National's special permit request. The town stated it enacted the moratorium to give itself enough time to develop reasonable regulations regarding the placement, construction, and modi- fication of cellular facilities, and stated it didn't intended to prohibit cellular facilities. The town stated it believed it could fully and impartially comply with the Telecommunications Act of 1996 (Act) only after it analyzed the issues involved and created appropriate regulations. At the May 20 hearing on Nationat's application, the town board recom- mended continuing the hearing until the moratorium expired on Sept. 30. National pressed for an immediate vote, and the board denied its request based on the moratorium. National sued the town, claiming it violated the Act. The Act required local governments to act on applications "within a reasonable period of time" and prohibited local governments from "unreasonably discriminating among providers of functionally equivalent services" or from "prohibiting the provi- sion of personal wireless services." According to National, the town's morato- rium was merely a delaying tactic. National also claimed the town discrimi- nated against it because the moratorium was passed in direct response to its application. Finally, National claimed the denial of its application showed the town intended to prohibit any new cellular facilities. National asked the court to order the town to issue it a special permit. DECISION: Request denied. The town didn't violate the Act by denying National's request for a special permit. Because the moratorium had now expired, National was free to resub- mit its application in accordance with whatever regulations the town had adopted. Although the Act required local governments to act on applications for cellular facilities within a reasonable time, it wasn't meant to give preferential treatment to the cellular industry or to subject their requests to any but the normal timeframe for zoning decisions. The moratorium was a necessary and bona fide effort to act carefully in a field with rapidly evolving technology, and it was reasonable for the town to seek a relatively short time to develop regulations. The town didn't "discriminate" against National. The moratorium wasn't aimed specifically at National, and there was no evidence the town treated other applicants more favorable or showed "ill will" toward National or other cellular providers. Finally, it was difficult for National to argue the denial of a single application proved the town intended to prohibit the provision of per- sonal wireless services. If National's argument were accepted, this would effectively nullify local authority by requiring approval of all applications. see also: Spriest Spectr~tm L.P ~..le. fferso~ Co,mO.', 968 F. Supp. 1457 (1997).