Posted by: Patricia Salkin | November 14, 2019

Fed. Dist. Court in OH Denies Motion to Dismiss TCA Violation Claim Over Municipal Denial of Conditional Use Permit to Site Wireless Facility

This post was authored by Zhao Sun, Touro Law Center

This appeal follows the denial by the Montville BZA of Northstar’s application for a conditional use permit to site a wireless facility.

The first issue was whether the Montville BZA violated NorthStar’s rights under the Telecommunications Act of 1996 (TCA).  The TCA requires, among other things, state or local governments to act on any request for authorization to place, construct or modify personal wireless service facilities within “a reasonable period of time after the request is duly filed.”  The the FCC determined that a reasonable amount of time for a new construction facility was one-hundred-fifty days and defined this period as the “shot clock.” Tolling of the “shot clock” is permissible when the local government is faced with an incomplete application and requests additional information within thirty days of the first filing; or when it is still missing information and requests more information within ten days of the initial request. Here, The Montville BZA denied NorthStar’s application one-hundred-ninety-six days after it was filed. When tolled by thirty-six days, the Montville BZA denied the application one-hundred-sixty days after filing, which is outside the reasonable, one-hundred-fifty-day period declared by the FCC. Therefore, the Court noted that provided NorthStar’s allegations are true, the Montville BZA would have violated NorthStar’s right to a response after a reasonable period of time.

State law provides that every final order or decision of any board or other division of a political subdivision of the state “may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located . . ..”  The Montville BZA takes this to be a requirement for NorthStar to meet before bringing its claim in this Court. The immediately following section of the Revised Code, however, states that “the appeal provided in this section is in addition to any other remedy of appeal provided by law.” By allowing any person to bring a claim in federal court after being “adversely affected by a final action of a State or local government . . . that is inconsistent with this subparagraph,” TCA acts as a remedy of appeal provided by law. . This remedy fits into the alternate appeal permitted by state law.

Montville’s refusal to grant the conditional use permit is a final decision for purposes of the TCA. Therefore, the Court denied Montville’s motion to dismiss.

NorthStar Towers, LLC v. Montville Twp., 2019 WL 5684461 (ND OH 11/1/2019)

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