Agenda - Planning Commission - 04/07/2016

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Zoning Bulletin February 25, 2016 I Volume 10 ( Issue 4 arguing applicant had to first exhaust administrative appeal to board of appeals before judicial review was an option under Act Citation: Global Tower Assets, LLC v. Town of Rome, 2016 WL 98417 (1st Cir. 2016) The First Circuit has jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. FIRST CIRCUIT (MAINE) (01/08/16) This case addressed the issue of what constitutes a "final action" of a state or local land use authority in denying permission to build a telecommunication facil- ity, such that, under the federal Telecommunications Act of 1996 ("TCA"), the applicant can seek judicial relief following the "final action." More precisely, the case addressed whether initial adminis- trative decisions concerning applications to build telecommunica- tions facilities in a municipality (such as a planning board's denial of an application) are the "final action" under the TCA, allowing judicial review in federal court, where a local ordinance requires, and state law acknowledges, a two -stage administrative review process —such as first by a planning board and then by a zoning board of appeals —as a prerequisite to judicial review of the zoning decision. In other words, it addressed whether the prospect of a board of appeals' review of a planning board's denial barred that denial from qualify- ing as a "final action" under the TCA. The Background/Facts: Northeast Wireless Networks, LLC and Global Tower Assets, LLC (the "Applicants") acquired a leasehold interest in land in Rome, Maine (the "Town") on which they sought to build a wireless communications tower. In accordance with the Town's Wireless Telecommunications Facility Siting Ordinance (the "Ordinance"), in April 2013, the Applicants applied to the Town's Planning Board to build the tower. Nearly a year later, the Planning Board eventually voted to deny the Applicants' application. Twenty- eight days after that vote, the Planning Board issued a one page "de- cision," memorializing the denial vote. The Applicants then filed suit in federal district court. They alleged various claims under the federal Telecommunications Act of 1996 (the "TCA"), including that the decision: "(1) unreasonably discrimi- nated against the providers of functionally equivalent services; (2) had the effect of prohibiting the provision of wireless services; and (3) was not 'in writing and supported by substantial evidence on a written record,' [as required by the TCA]." The Applicants also al- ©2016 Thomson Reuters 3