Note: This past weekend I attended the spring meeting of the ABA State & Local Government Law Section in Charleston, SC.  The highlight for me of the annual spring meeting is the “Hot Topics in Land Use” program, a two hour rapid fire program featuring papers and presentations on major trends in various aspects of land use law over the last year.  This year’s papers, which will all be published in the summer issue of The Urban Lawyer, included recent developments related to the Telecommunications Act, RLUIPA, ethics, the comprehensive plan, exactions and impact fees, and the settlement of land use litigation without a permitting process.  What follows is an excerpt (with permission) from Robert B. Foster’s excellent paper entitled, “A Novel Application: Recent Developments in Judicial Review of Land Use Regulation of Cellular Telecommunications Facilities under the Telecommunications Act of 1996.”

Section 253 of Telecommunications Act of 1996 (TCA), entitled “Removal of Barrier to Entry,”  provides that “[n]o state or local statute or regulation, or other State or local requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The Act further provides that nothing in this section is to affect the ability of the State to impose competitively neutral regulations to advance telecommunications service or to manage the use of rights of way on a competitively neutral and nondiscriminatory basis.  Lastly, the section permits the FCC to preempt state and local laws that violate this section.  The decisions applying section 253(a) to wireless zoning ordinances are troubling. While it seems clear that section 253(a) permits facial challenges to these ordinances, the courts seem to be applying unfairly strict standards.  The requirements of the challenged ordinances are similar to those found in many zoning ordinances: applications, filing fees, information, public hearing requirements and consideration of impacts.  These standards have the potential of invalidating almost every zoning ordinance that seeks to regulate the placement of wireless facilities.

In a recent Central District of California case, the Court tried to answer what elements of a wireless zoning ordinance would, on its face, cause it to have the effect of prohibiting service and thereby be preempted by Section 253(a) of the TCA.  NextG challenged Los Angeles County’s zoning ordinance regarding the placement of wireless facilities in public rights if was as so cumbersome as to erect a barrier to its entry into the telecommunications market.  The county’s zoning ordinance required providers to obtain a conditional use permit (CUP) in order to locate a wireless facility.  The CUP application required information on the location, nature of the intended use, nature of adjacent uses and structures, a site plan, maps showing every use and parcel in a 500-foot radius, a list of abutters, and any other information the county might require. The provider had the burden of proving that the requested use would not adversely affect the health, peace, comfort or welfare of persons in the surrounding area, would not be materially detrimental to neighboring property, and would not constitute a menace to the public health, safety or welfare. It had an application fee, required at least one public hearing, and imposed criminal and civil sanctions for its violation.

The court found that NextG had standing by ignoring NextG’s claim of injury resulting from a potential inability to obtain a CUP.  Finding the causal link too speculative, the court instead characterized NextG’s injury as the infringement of its federal rights under the TCA caused by the ordinance.  The court then turned to whether the CUP ordinance was preempted by 253(a).  Reviewing several cases, the court found that preempted ordinances had several common features: a complicated application process and high fees, a public hearing, imposition of criminal sanctions for violations, and unfettered discretion to approve or deny the application or revoke the permit.  The court had “little trouble concluding that [the CUP] process is as burdensome and Byzantine as to erect a barrier to providing telecommunications services.” The court pointed to the lengthy and detailed application process “riddled with administrative hoops, missing a single one of which causes the outright rejection of the costly application,” the high application fee, and the vague criteria for granting the CUP.  The court also objected to the public hearing requirement, which complicated the already burdensome application process, the civil and criminal sanctions, and the unfettered discretion of county officials to deny the application or impose conditions.  The court rejected the county’s argument that this was a general zoning ordinance that was not subject to section 253.
NextG Networks of Cal., Inc. v. County of Los Angeles,  522 F. Supp. 2d 1240 (C.D. Cal. Western Division 2007).

Special thanks to Robert B. Foster of Rackemann, Sawyer & Brewster, P.C. in Boston, MA for permission to reprint his description of, and thoughts on, this case. http://www.rackemann.com/professionals-28.html