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Monday, November 21, 2011

Cell Towers, Shot Clocks, and Zoning: 2 Years Later

Most municipalities understand that cellular facilities are necessary to serve the needs of residents who increasingly rely on their cell phones. The need to site antenna facilities in a particular community can, however, conflict with a municipality’s desire to preserve and protect property values and the aesthetic character of a community. The Telecommunications Act of 1996 was intended to strike a balance between respect for local land use control and promotion of competitive telecommunication services by establishing certain procedural and substantive regulations for local land use decisions on cellular facilities.

Two years ago, the FCC issued a ruling that clarified certain provisions in the Act. The ruling addressed three principle issues: (1) the time-frame for local zoning authorities to act on cellular zoning applications; (2) the right of cellular service providers to non-discriminatory treatment; and (3) whether ordinances requiring all cellular zoning proposals to apply for a variance are per se unreasonable.
One of the most significant issues addressed in the ruling was the establishment of a “shot clock” for a municipality’s evaluation and decision on a zoning application. The rationale behind the new time limits was that language in the Act requiring local governments to “act on any request…within a reasonable period of time,” was too vague.  A local zoning authority has 90 days (co-locations) or 150 days (all other applications) to make a final, written decision on a zoning application for a cellular facility. Once a zoning application is deemed complete, the shot clock begins to run. A municipality can have an additional 30 days to request additional information for the application, which tolls the clock. If a municipality fails to act within the time frames, there is a rebuttable presumption that the municipality has acted, or failed to act, unreasonably and the cellular provider can bring suit.

Cases in the past two years have considered a variety of challenges by cellular providers, including claims of shot clock violations and discrimination and bias on the part of municipal officials.  Based on these cases, there are a few tips that municipalities should consider in processing, reviewing, and deciding zoning applications for cellular facilities. 

One way to avoid a claim of unreasonable delay is for a zoning official to obtain the provider’s consent to extensions of time. While repeated delays might test the bounds of a provider’s patience, limited extensions for substantive purposes should be granted if the parties are acting in good faith. In at least one case, a court held that a provider that agreed to an extension of time was barred from making a claim for unreasonable delay so long as a final decision was made within the extended time.
As a general rule, courts have upheld zoning decisions by municipalities that have treated cellular zoning applications similarly to other applications, and have applied objective standards in a non-discriminatory manner.  Courts have also been reluctant to grant injunctive relief to a cellular provider solely because a municipality violated the shot clock requirements.  However, a court might be more favorably inclined to issue an injunction if it finds that the municipality's delay in processing an application is based on some bias against the provider.  For that reason, municipalities should remind their zoning board, plan commission, and corporate authorities to review cellular zoning applications dispassionately since courts have easily seen through decisions that are rooted in a pre-existing bias against wireless facilities.  

Post Authored by Adam Simon.


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