Agenda - Planning Commission - 09/08/2011

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it with conditions) for the municipal body to consider at its next meeting. Then, at the next meeting, the municipal body considers the proposed decision, modifies it as necessary, and adopts it. Meeting minutes should reflect this. Proceeding in this fashion ensures that the municipality's decision complies with the written decision/separate record requirement. Perhaps more important, using the two-step approach helps ensure that a mu- nicipality's decision is well documented and conforms with local, state, and federal law, thus providing the maximum assurance that it will be upheld on appeal. For example, in a recent California case, a municipality's carefully reasoned decision resulting from. the use of the two-step approach appears to have contributed significantly to a federal court's decision to uphold the municipality's denial of several cell tower zoning applica- tions predominantly on aesthetic grounds. Timely Actions and FCC Shot Clocks The Act contains a requirement that cell tower zoning decisions occur in a timely fashion, specifically "within a reasonable period of time after the request is duly filed ... taking into account the nature and scope of such request." However, the FCC has effec- tively rejected this individualized time period approach by setting blanket time frames for action on all cell tower zoning requests through two orders that have come to be known as the "shot clock" orders. In late 2009 the first FCC order imposed a 9o-day shot clock for colocations and 15o days for new cellular towers, and in August 2010 it followed this up with an order clarify- ing certain points (and rejecting requests for changes). Because the orders are declara- tory rulings, no "rule"' was issued. Instead, municipalities and providers have to exam- ine the approximately 4o pages of text that comprise the two FCC orders to attempt to understand and interpret them. And the two orders are not always entirely consistent. The FCC decided that 90 days (not 15o) was reasonable for colocations because they often are easier to process than new towers and may involve little or no new construc- tion. The FCC defined colocations in footnote 146 of its initial shot clock order. Because the definition is both highly detailed and adapted from an unrelated proceeding, it is unlikely to coincide exactly with the defini- tion of colocation in local ordinances. In general, under the shot clocks a zon- ing application for an additional antenna at a given location is not a colocation if it involves more than a 10 percent increase in height, more than four new equipment cabinets or one new equipment shelter, extends more than zo feet from the tower, or if excavation is needed outside the current tower site. Under the shot clocks municipalities must act on a cell tower zoning application within the 9o/150-daytime frame. If they take longer, the burden is on them to justify to a court why it was reasonable to take longer. In recognition that zoning applications can be incomplete, the orders state that the time frames do not include the time for an applicantto respond to a request for additional information. However, this extension only applies if the municipality notifies the applicant within 3o days of filing that the application is incomplete, which cre- ates practical problems when the need for additional information only appears afterthe review is well underway. Due to the short time periods involved, municipalities should require a provider to state in its zoning application which shot clock (9o- or 150-day) it contends applies to its request. And if the provider contends that it is the 9o-day shot clock, it should be required to identify the specific criteria in the FCC shot clock order it meets. By doing this, municipali- ties will know which time frame the provider contends is applicable and will be able to de- cide if the claim is accurate. More importantly, municipalities will avoid the harmful situation where the municipality believes that it has 150 days to act while the provider contends that the 9o-day shot clock applies. The FCC orders state that the shot clocks can be extended ("tolled") by mutual agreement. As a practical matter, both par- ties may want to extend the applicable time periods to avoid a provider having to refile because a municipality believes it needs to deny a zoning application (without preju- dice) due to incompleteness, or to prevent a shot clock from expiring. In response to the shot clocks, some municipalities have adopted detailed ap- plication forms for cell tower zoning matters to better ensure that all requisite documents and other information are provided at the outset. In addition, some municipalities are conducting a more detailed check for the presence and completeness of all relevant attachments and signatures at the filing counter before a cell tower zoning applica- tion will be accepted. In seminars about the FCC shot clocks, the most frequently asked question is how the shot clocks apply when a municipality has a two-step zoning process —for example a planning commission makes an initial zoning decision and a disaffected party has the option of an internal (not court) appeal to a board of zoning appeals or city council. Municipalities frequently ask: Do the shot clocks apply just to the first step —the plan- ning commission decision —or do they apply to the entire process? The short answer is that the FCC has refused to address this question, although it was asked do so in its August 2010 order. With this in mind, municipalities should carefully calendar and compute the 9o- and 150-day time periods from the out- set and then work backward to make sure that they act within the requisite time period after allowing for all notices, possible inter- nal appeals, preparation of written orders, and the like. Under the Act there are good legal grounds (not as yet ruled on by the courts or FCC) for contending that the shot clocks legally can only apply to a municipality's initial zoning decision (the planning com- mission decision in the example above). If it is not possible to complete the second step (appeal to board of zoning appeals or equivalent) of the zoning process within the appropriate time frame, then municipalities should seek a mutually agreed -upon exten- sion from the provider. It may help to point out to the provider that under the Act it has only 3o days from the expiration of a shot clock to file suit for exceeding the clock. In some cases it may be possible to get the provider to agree to an extension (including where only the board of zoning appeals has the authority to grant a needed variance) because the municipality will otherwise contend that the shot clock was met when the planning commission is- sued its decision. And by the time the board of zoning appeals rules, which is more than 3o days later, the provider will have lost its right to go to federal court, unless it agrees to an extension. Additionally, the municipality should carefully keep track of any events that might cause the shot clocks to be exceeded. For ex- ample, if additional information is needed from the provider, the municipality should request it in writing with a very short time to respond, stating that this is due to the shot clocks and that any delay may cause a delay in the munici- pality's decision. Careful records such as this can provide a solid basis for either a mutually agreed -upon extension or for justifying to a court the reasonableness ofa municipality tak- ing more than 90 or 15o days to act. ZONINGPRACTICE 8.11 AMERICAN PLANNING ASSOCIATION I page 4