New restrictions on local government regulation of wireless service facilities

Local governments in Michigan are restricted as to what they can regulate or prevent when it comes to wireless service facilities.

At the start of 2013, significant new restrictions were placed on local governmental authority to regulate the expansion and location of wireless service facilities, in addition the restrictions on local regulations already in place. Michigan State University Extension just published a new Land Use Series on this topic: “Limits and parameters on local and state regulation of wireless communication”.Wireless Antenna Tower

The publication reviews and explains the limits on local authority as contained in the Federal Telecommunications Act of 1996 (FTA) and new limitations added by the Middle Class Tax Relief and Job Creation Act of 2012. Many missed the fact that new restrictions were recently added to the FTA because some of the broadband and wireless legislation was buried in the federal sequestration budget cuts act (sequestration act) (section 6409). Also reviewed in the new MSU Extension pamphlet are the local government limits on regulations of wireless service facilities contained in the Michigan Zoning Enabling Act. The state law requires that most proposed wireless facilities be handled as permitted uses, but in some cases, they may be handled as special uses – with a cap on application fees, deadlines for actions, and other matters.

The publication reviews each (1) the Federal Telecommunication Act, (2) the Sequestration Act, and (3) the Michigan statutory amendment as it relates to placement of new wireless facilities and towers. This is the area where many court cases occur, particularly when a local government denies a permit for a wireless facility.

Local governments and states can still regulate the placement, construction, and modification of personal wireless services, but with certain restrictions. Those restrictions on state and local governments are categorized into three substantive and two procedural categories according to Robert B. Foster (43 Urb. Law. 789 2010-2011).

Substantive restrictions are:

1.         Cannot unreasonably discriminate between different provider companies.

2.         “[T]he regulation of the placement, construction, and modification of personal wireless service facilities . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services” (T-Mobile Central v. West Bloomfield Charter Township).

3,         Regulations cannot be based on “environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC]’s regulations. . . .”

Procedural restrictions are:

1.         Applications must be acted on within a certain deadlines and decisions shall “be in writing and supported by substantial evidence contained in a written record” (City of Arlington, Texas v. Federal Communications Commission) as well as following deadline requirements of local ordinance (if any) and the Michigan Zoning Enabling Act.

2.         Anyone harmed by a decision to deny a wireless facility permit can bring the issue to court, and the court must hear and rule on the case in an expedited manner. (Note the provision is for a cause of action for denial of a permit, not for granting a permit.)

Also, local and state governments must allow expansion of existing wireless facilities, based on new federal law provisions in the budget Sequestration Act. Other restrictions include:

1.         Arguments concerning the impacts of property values must be documented by an expert, testifying on the record. An expert would be qualified land appraiser or mortgage banker. But in either case it must be based on the expert’s study of the specific site.

2.         Michigan requires most applications for wireless facilities to be a permitted use in the local zoning ordinance. An exception, allowing it to be handled as a special use (e.g., notices sent, public hearing on the proposal and decision within 60 days), if the proposal is a co-location on an existing tower or other structure and the increase of the structure is more than 20 feet or 10 percent, increases with width of the structure more than necessary and increases the land area for the facility over 2,500 square feet as well as other details. A second exception, allowing it to be handled as a special use (e.g., notices sent, public hearing on the proposal and decision within 90 days), if the proposal is not for a co-location on an existing tower or other structure as well as other details.

There are complicating details for all of these issues as well as complex interrelationships between state and federal law, which are all covered in the new publication: Land Use Series: “Limits and parameters on local and state regulation of wireless communication”.

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