Agenda - Planning Commission - 09/08/2011

Home

estron{. a; ostfhe arsOrscurt) itively site for the bene fit o f al(subscribers Tfrls eature will i to forselected isssuesdfZontng Practice atartrtor aced iftei eacF online i scusssiorr rs close , th`e answers wrlli din-ga or,linezrrchtve gvarlab!e.throughthe lPAZonit Although the cell tower zoning amend- ments focused principally on "cell phone service," technically the Act covers "per- sonal wireless services" and facilities used to provide personal wireless services as de- fined in 47 U.S.C. § 332(c)(7)(C). The terms include the antennas and facilities used to provide not just cell phone service but also "fixed wireless" (similar to microwave point- to-point) services and other similar services. Finally, municipalities must comply with state and local zoning laws applicable to cell towers. If the state or local law is more restrictive then the Act, then the more restrictive law controls. This follows from the basic principle that the Act is an overlay on traditional zoning law, which is largely pre- served. For example, in one case, a federal court reversed a local zoning decision be- cause it used aesthetics to deny an applica- tion fora cell tower to be located in a public right-of-way. Aesthetics are allowed under the Act, but under the applicable state law, municipalities could not consider aesthetics for utility fixtures located in public rights -of - way (cell phone companies were public utili- ties in the state in question). REMEDIES The most troubling aspect of the Act relates to remedies for violations. In contrast to many state laws, the remedy that wireless providers usually request, and which courts frequently impose, is an order granting the cell tower zoning application "as applied for." The rationale for this result is a provi- sion that directs the courts to handle cell tower zoning cases "on an expedited basis." Cell phone companies contend this means olr Vf/ pestle Is art tnmeyar(dchatl offheTelecornfnunicat o groupbtVarnum LLP HerepresentsMt-1mgpMites acrosst Qut try on calzle ar dtelecommunicattons ma �fHarvald, Yale, and tt a University of icblga �eceiyed the Memberoffhe Yea1 award from the National Association �f TelecofumumcatlonsOfficers-sand Advisors or his representation of rlunictpalitresFon mattersconcerntngt ie FederatTelecommumcattons act ofzgg6 I?estleprovides mod`elcell towerrleases to municipalities wwuvvamutr lawcgra/lease) and has afrequenfly-apdated Paper ,mot nranictpal attorneys thatsurprr artzes and provides citatlens to. the artous cases that formed the bests forth s article He can be contacte tt616 36 6eoo, ext 72s, or bye mattat lwpestle@varnumlaw cote the remedy for violations must be approval of the zoning application, not a remand with consequent delay. In many instances the courts have agreed. Such decisions can cause well-inten- tioned municipal actions to have adverse effects. For example, in a 2005 case, the City of Chattanooga found that seven cell tower zoning applications did not comply with a recent zoning ordinance change. Rather than rejecting them and allowing them to be re - filed, the city delayed action on the applica- tions to allow the provider a chance to bring them into compliance with the revised ordi- nance. After the applications sat for a period of time, the provider sued the city, and the federal court ordered all seven applications to be approved as applied for because the city had been too slow in acting! More recent federal decisions show some tendency to move away from the "approval order" remedy toward the more traditional remedy of a remand for proceed- ings in compliance with the court's order. However, as a practical matter, municipali- ties are well advised to be careful to comply with the Act so as to make sure they do not receive the harsh remedy described above. On the bright side, it is clear that pro- viders cannot get attorney fees or damages either under the Act itself or Section 1983 (Civil Rights Act) for violations. This was resolved in 2005 by the U.S. Supreme Court, supplemented by later decisions of the fed- eral appellate courts. PROCEDURAL RULES As interpreted by the courts, the Act creates procedural requirements for cell tower zon- ing applications that often differ significantly from typical local practices. As a result, pro- cedural challenges are one of the areas where cellular companies have been most success- ful in appealing local zoning decisions. written Decision/Separate Record Municipalities can inadvertently violate the Act by running afoul of its "written deci- sion/separate record" requirement. These requirements derive from a provision stating that cell tower zoning decisions "be in writ- ing and supported by substantial evidence contained in a written record" (47 U.S.C. § 332 (c)(7)(B)(iii)). Most courts that have con- sidered this issue have adopted a require- ment that a municipality's written decision simply must provide a sufficient explanation for the court to be able to conduct a mean- ingful review of it. In a significant deviation from local practice in many municipalities, some courts have required that the written zoning decision be separate from the written record or transcript of the local zoning proceed- ing. This means that local decisions may be open to challenge by providers if they are not clearly separated from the hearing or proceeding at which evidence is taken. Until there is a clear resolution on the "separate record" issue, a practical approach is for a municipality not to make a formal deci- sion at the zoning meeting or city council meet- ing where the zoning hearing occurs or an ap- peal is heard. Instead, following the hearing or the close of an appeal the municipality should direct counsel or staff to prepare a written order or decision along specified lines (for example, denying the application generally or approving ZONINGPRACTICE 8.0 AMERICAN PLANNING ASSOCIATION I page 3