TELECOM SITING AND RIGHT-OF-WAY MANAGEMENT

Transcription

1 TELECOM SITING AND RIGHT-OF-WAY MANAGEMENT STEVE HORNER, SENIOR ASSISTANT CITY ATTORNEY, CITY OF OVERLAND PARK MIKE KOSS, ASSISTANT CITY ATTORNEY, CITY OF OVERLAND PARK SEAN MCLAUGHLIN, ASSISTANT CITY ATTORNEY, CITY OF LENEXA CAAK Fall Meeting - October 7, 2016

2 Disclaimer: This presentation and the documents and links provided should not be considered legal advice, nor do they create an attorney-client relationship.

3 Purpose of Presentation: To provide a brief overview of the impact of recent changes to federal and state law on local control and regulation of wireless facilities Highlight the impacts on zoning regulations Highlight the impacts on ROW regulations

4 Overview: Background on 47 USC 332, 6409(A) & HB 2131 Applications Administrative Approval vs. Special Use Permits Requirements and Performance Standards Application Fees Review timeline / Shot clocks Small Cell applications What if we just ignore the Statute? Definitions Lease of Public Property Application Denials Right-of-Way / Franchises

5 47 USC 332 No effective prohibition Reserved zoning authority Least intrusive means

6 SECTION 6409(A) (MIDDLE CLASS TAX RELIEF & JOB CREATION ACT OF 2012) / 47 USC 1455(A) Eligible facilities request Substantial change

7 HB 2131 (2016) / KSA ALEC SoftBank Legislative Negotiations

8 Applications - Administrative Approval vs. Special Use Permits Many cities require special use permits for all wireless facilities Some allow administrative (staff) approval for some sites with a minimal impact For example, rooftop antennas or small cell on street lights Note: For years, OP has allowed staff to approve these types of sites and also some macro towers that are specifically allowed by right in some zoning districts

9 Applications - Administrative Approval vs. Special Use Permits Industry found city review processes burdensome and long Industry lobbied for the changes in Section 6409(A) and in HB 2131 in order to make the process easier and faster Definitions of Eligible facilities request and Substantial change intended to set a line of demarcation of wireless facilities with a minimal (non-substantial) impact and those with a substantial impact While cities can still require SUP for everything, you consider whether to allow some administrative (staff) approvals

10 Applications - Administrative Approval vs. Special Use Permits KEY CONSIDERATION - Section 6409(a) provides that: State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station facility. 47 USC Sect. 1455(a) (Emphasis added)

11 Applications - Administrative Approval vs. Special Use Permits Administrative Approval (by OP Director of PDS or ROW Coordinator) Modification of an existing tower or base station that does not incur a substantial change to the tower or base station or that otherwise qualifies as an eligible facilities request New antenna (including small cell/das facilities) on an existing tower or base station that: (1) is permitted by right in the underlying zoning district; and (2) meets applicable performance standards Note: a different shot clock applies depending on whether there is a substantial change - so OP uses two separate subsections to distinguish this New tower permitted by right in the underlying zoning district that meets applicable performance standards New small cell/das facilities on an existing tower, utility pole or street light in ROW - or a replacement that is not a substantial change from the original New tower or utility pole for small cell/das facilities in ROW

12 Applications - Administrative Approval vs. Special Use Permits Special Use Permit Approval Substantial change to an existing tower or base station that is not permitted by right in the underlying zoning district New tower that is not permitted by right in the underlying zoning district Any other application for placement, installation or construction of transmission equipment that does not constitute an eligible facilities request (CATCH-ALL PROVISION)

13 Applications - Requirements and Performance Standards Subsections (f) (1)-(18) create several application review limitations - a.k.a. the shall nots Cannot require info about, or evaluate an applicant s business decisions re: its designed service, service quality or customer demand for particular site - (f)(1) Cannot require info to show need for facility (e.g. propagation map, telecom traffic studies) - (f)(2) These create a whipsaw effect with federal requirement that cities cannot prohibit or effectively prohibit service

14 Applications - Requirements and Performance Standards Subsections (f) (1)-(18) the shall nots cont. Cannot evaluate application on availability of other locations, including option to collocate - (f)(3) Cannot condition approval on applicant s agreement to permit collocation of others on its facility - (f)(16) These requirements undermine cities main tool to prevent the proliferation of unnecessary towers and structures Cannot impose greater setback/fall-zone than for other types of commercial structures of a similar size - (f)(17) Read this carefully and don t give away more than necessary

15 Applications - Requirements and Performance Standards Subsections (f) (1)-(18) the shall nots cont. Cannot dictate the type of transmission EQ or technology (e.g. DAS/small cell in lieu of macro site) - (f)(4) Cannot impose unreasonable requirements regarding presentation, appearance or function of facilities (e.g., kinds of materials, screening & landscaping)...and City shall consider input from property owners adjoining affected ROW- (f)(10) * KS SCt says,...aesthetics alone was a reasonable basis for the city s action. Zimmerman, 289 Kan. 926, 952 (2009), citing Gump, 35 Kan.App.2d 501, (2006) (city denial of communication tower 135 held reasonable) * Considering neighbor input infers a notice requirement - but decision can t be based upon plebecite of the neighbors. Taco Bell

16 Applications - Requirements and Performance Standards Subsections (f) (1)-(18) the shall nots cont. Siting/location preferences... can cities still do this? FCC declined industry s request to rule that a local government s preference for siting on the local government property violates 332(c)(7). FCC found insufficient evidence to support such a rule, and elected to leave the issue to the courts. Order para. 278 Cannot discriminate or create (required) preference in siting rules on basis of ownership of property, structure or facility or when evaluating applications or require placement on City property (f)(9) Cities can still encourage/incentivize siting on city property... and possibly still recommend preferred districts and locations

17 Applications - Requirements and Performance Standards Subsections (f) (1)-(18) the shall nots cont. Cannot limit duration for less than 10 years - (f)(18) Check your SUP term requirements See also the other restrictions in (f) (5)-(8) and (11)-(15)

18 Applications - Requirements and Performance Standards Subsection (j) - Subject to this Act and applicable federal law, a city may continue to exercise its zoning, land use, planning and permitting authority over wireless facilities except for small cell/das facilities in interior structures or upon site of any campus, stadium or athletic facility.

19 Applications - Requirements and Performance Standards Recommended Requirements Pre-application conference and descriptive statement of proposed facility - to decide applicable requirements Affidavit that applicant conducted a thorough analysis of available collocation opportunities within search ring. Elevation drawings / photo simulations Tower and antenna design requirements (E.g., stealth design, monopole and not lattice tower, color blends) Height requirements E.g., but include separate requires if in ROW

20 Applications - Requirements and Performance Standards Recommended Requirements Structural report from PE and require meet local building codes and industry standards (Electrical Industries Association) Consider requiring an ongoing structural inspection (2 yrs) Operational Standards - require meet all applicable structural, height, RF and other standards by FCC, FAA, EPA and other federal regulatory agencies; and if standards change, facilities must be brought into compliance within 6 months of effective date

21 Applications - Requirements and Performance Standards Recommended Requirements Accessory Facilities - screening, landscaping, lighting, utilities, security, signage, storage, etc. If emergency power/generator will be utilized, require details showing location and proposed use, a proposed plan for any non-emergency use (e.g. testing), and certification it will not violate local health and safety requirements and local noise control ordinances (see f(15)) Provision to handle unsafe or abandoned facilities

22 Applications - Fees Application fees - Subsection (c) Limited to Actual Costs Shall not exceed: $500 for collocation, small cell/das $2,000 for new facility or substantial modification Limitation on Third Party Costs

23 Applications - Fees Fees should be clearly stated in Code, Application Forms or Online Portals. Note that fee is subject to Statutory Limitations Acceptance of Application Contingent on Fee Payment

24 Applications - Timeline / Shot Clocks Shot Clock Starts Upon Receipt of Application 60 Days for Eligible Facilities Request 90 Days for Substantial Changes 150 Days for New Wireless Support Structure

25 Applications - Timeline / Shot Clocks Shot Clock may be tolled by Mutual Agreement May be tolled if Application incomplete Notice to Applicant within 30 Days ID all missing Information Shot Clock starts upon supplemental submission Application Info needs to be Publicly Stated

26 Applications - Timeline / Shot Clocks Put timelines and tolling provisions in the Code Identify all needed Application Information and put that in Code, Application or other Public Document Make Applicable Staff Aware of Timelines

27 Applications - Small Cell Applications Allows Consolidated Application for Small Cell that are of a Substantially Similar Design with 60 day Shot Clock Up to 25 per Application If not Substantially Similar can require Separate Applications

28 Applications - Small Cell Applications Create Specific Exemption in Code for Small Cell Applications Talk to Public Works, Right-of-Way Management Staff or other applicable Staff

29 HB 2131 (2016) / KSA What if we just ignore the Statute? Application Deemed Approved after applicable time period lapses and notice from Applicant Does not matter if Application is not in compliance with City Code If Deemed Approved, City has burden of challenging in Court within 30 days

30 HB 2131 (2016) / KSA Definitions - Subsection (b) Contains 24 Definitions Several Similar to Federal Rules Technical Common

31 HB 2131 (2016) / KSA Federal and Kansas Similarities (but be aware of the differences) Substantial Modification Base Station Transmission Equipment Collocation Existing Structure

32 HB 2131 (2016) / KSA Technical Definitions Small Cell, DAS, Search Ring, Antenna Common Words Applicant, Application, Replacement, Utility Pole, Water Tower, Public Lands and Public ROW

33 HB 2131 (2016) / KSA Add Definitions DAS, Small Cell, Substantial Modification Broaden Definitions Old Definitions may not apply to new wireless technology Different Wireless Systems may need Different Treatment

34 HB 2131 (2016) / KSA Lease of Public Property - Subsection (e) Leases on Public Lands, Building Facilities Does not apply to Right-of-Way Minimum 10 year duration Market Rate City acting in Proprietary Capacity and not subject to 332(c)(7)

35 HB 2131 (2016) / KSA Market Rates If City and Applicant cannot agree on Market Rate then statute sets forth Appraisal Process Rate determined by panel of 3 Appraiser City and Applicant each appoint 1 Appraiser Appraisers appoint final Appraiser

36 HB 2131 (2016) / KSA Appraisal Process Each Appraiser Provides Lease Rate Market Rate = Mean b/w Highest and Lowest Rate Unless Mean is 10% More/Less than 3rd Appraiser then 3rd Appraisal is Market Rate 150 Days to Complete CIty/Applicant pay for Appraisers

37 HB 2131 (2016) / KSA Right of Way - Subsection (d) Statutory right to ROW subordinate to public health, safety, and welfare Clear zones Breakaway requirements Separation distances from other utilities

38 HB 2131 (2016) / KSA Right of Way - Height limits Shawnee ROW Ordinance: 60 height limit, with temporary exception for electrical service or communication service, and permanent exception for certain electric power lines, street lights, and traffic lights

39 HB 2131 (2016) / KSA Right of Way - Height limits Leawood ROW Ordinance: height will not exceed the lessor of: (a) 35 feet for residential or collector streets or 45 feet for arterial streets; and (b) 66 inches above the height of existing street light poles along the right-of-way surrounding the facility.

40 HB 2131 (2016) / KSA Right of Way - Height limits Overland Park ROW Ordinance: The maximum height which may be approved for a tower and related transmission equipment in the public right-of-way is: 50 feet along a thoroughfare; 40 feet along a collector; and 20 feet along a residential street.

41 HB 2131 (2016) / KSA Right of Way - Franchise agreements Merriam & Westwood - Franchise ordinances include requirement for providers installing poles & towers to obtain franchise Shawnee - ROW ordinance states, Small Cell Facilities applications shall not be considered submitted until an agreement is in place between the Applicant and the City for use of the public Right-of-Way.

42 Applications - Denials Application Denials Procedural restrictions and recommendations Basis for denial Substantial evidence In writing and contemporaneous See Stout & Co., LLC v. City of Bel Aire, 2016 WL (D. Kan. July 14, 2016).

43 QUESTIONS?

44 Additional Resources: 47 U.S.C. 332(c)(7) & 47 U.S.C. 1455(a) (better known as Section 6409(a)) 47 CFR Parts 1 and 17 Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies; Final Rule. Rules and Regs. Vol. 80, No Jan Web OP Zoning regulations: 0&MeetingID=5440 OP ROW Ordinance: 2&MeetingID=5440 Other cities with recent revisions: Shawnee, Leawood Neil J. Lehto, Esq., Berkley, Michigan Telecom listserve - nlehto@sbcglobal.net Best Best & Krieger LLP, Attorneys at law- Telecom listserve, webinars and articles on website at

45 Additional Resources: Schettenhelm, Matthew K. "Cell Towers - Beware the "Substantial Change" Ahead." Municipal Lawyer, IMLA Nov./Dec. 2014: Print. Sokolowski, Arline Miniature Cell Tower Regulation Is Your Municipality Prepared for the Wireless Telecommunication Service Providers That Are Coming to Your Community? Kansas Government Journal July 2014: Print. "Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies." Federal Register. United States Government. WR Docket No , FCC OMB approval; 18 May Web. Seifter, Miriam Opinion analysis: Reason-giving, federalism, and a partial win for cell towers. 12 Jan Web.

46 Thank you! Steve Horner, Mike Koss, Sean McLaughlin,