Agenda - Planning Commission - 07/01/1997

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.- Z.B. Special Report - Page 3 In one instance, a federal court ruled that a county failed to satisfy this requirement when it denied a permit application. The county's only evidence to support its denial was five minutes of testimony from a resident discussing the proposed tower's effects. According to Congress, if an application involves a zoning variance or public hearing or comment, the decision-making process should last no longer than the "usual period" for those circumstances. The law was not intended to give preferential treatment to the personal wireless service industry. The court in Sprint Spectrum, noting Congress' intent, ruled the. moratorium did not violate the provision. Looking to the state law that authorized the moratorium, the court noted the general timeframe for zoning decisions in Washington could include a reasonable moratorium. No discrimination The Act prohibits any local action that "unreasonably discriminates" among providers of equivalent personal wireless services. Through this provision, Congress has indicated its intent to encourage free competition by preventing municipalities from favoring certain service providers. However, if two different proposed facilities would have different visual, aesthetic or safety effects, then a locality may treat the facilities differently, even if the facilities provide the same service. For example, a municipality that grants a permit for a tower in a commercial district is not obligated to grant a permit for a competitor's tower in a residential district. By contrast, a municipality that refuses to allow more than one facility in a given area could face a legal challenge if the restriction places a greater burden on some providers of a similar service than it imposes on others. In the Sprint Spectrum case, the court ruled that the city's across-the- board moratorium did not violate the nondiscrimination provision. The city, the court said, would consider any new application, no matter who the applicant was, under the same rules. No regulation based on environmental effects According to the Act, local governments cannot use environmental concerns (such as radio emissions) as a basis to regulate wireless service facilities that already comply with applicable FCC standards. The Act was designed to bar decision-making based either directly or indirectly on these effects. The FCC has issued new guidelines governing transmitter facilities and equipment authorization, which will take effect in September 1997. Regulators need to be familiar with the FCC rules and must ensure that their ordinances do not impose more stringent requirements. Localities remain free to regulate on the basis of the safety of towers and, to a variable degree from state to state, their aesthetic effects. 10S