Procedural considerations about planning for wireless telecommunications.
Draw up a clear list of what your board will expect an applicant to do. This listing may be a difficult task at the outset but will give all parties concerned a better way to review an application. Since the Telecommunications Act (and due process) require applications to be acted on within a "reasonable" time, you as a board can satisfy that responsibility better when you inform your applicant exactly what will be needed. For an outline of what you can require under state law, see the text of RSA 12-K.
Boards now must render a written decision within 90 days of receiving the application for co-location requests and 150 days for new construction - a "shot clock." It is recommended that someone act as a "quarterback" - whether a town employee, board member or hired consultant - to be responsible for calendaring the deadlines for the completeness review, the 90/150 day decision deadlines, public hearings, work sessions or any other meetings, hearings or crucial dates.
Once the town physically receives the application, it should be reviewed for basic completeness, i.e., signed, the application form filled out, the necessary filing fees included, etc. If it passes this basic completeness review, it should be dated stamped to establish the date when it was filed. If not basically complete, the application should be rejected.
The board has 30 days from the date of filing for a more thorough completeness review to ensure that all substantive materials needed to make an informed decision have been received. If the board identifies additional materials that are needed, it must inform the applicant and the 90 or 150 day "shot clock" is suspended until such materials are delivered. If the 30 day completeness review window ends and the board then determines additional information is needed, the 90 or 150 day "shot clock" continues to run even while the board is waiting for the requested materials. It is very important for boards to promptly review any PWSF application within 30 days of receipt to allow request for the materials without affecting the amount of time they have to reach a final decision.
When the board determines that the application is substantively complete, it should promptly schedule and notice a public hearing.
Note that Chapter 267 of the laws of 2013 (SB101) significantly revised RSA 12-K to facilitate a streamlined application process for the collocation or modification of personal wireless service facilities. Within 45 days of receiving a collocation or modification application, the municipality must: 1) review the same in light of its conformity with applicable building permit requirements and consistency with RSA 12-K; 2) make a final decision to approve or disapprove the application; and 3) advise the applicant in writing of its final decision. A collocation or modification application is deemed to be complete unless the municipality notifies the applicant, in writing, within 15 calendar days of submission, of the deficiencies in the collocation or modification application which, if cured, would make the it complete. If the municipality fails to act on a collocation or modification application within 45 calendar days, the application is deemed approved.
You have a right to require proof of the property owner's interest in filing the application, a deed or lease, a description of the property and explanations of any "team" approach of having one company provide the structure and a different entity provide the wireless service.
RSA 12-K also allows you to require maps of the surrounding areas and to make the applicant supply you with specifics on the facilities proposed, and why less intrusive ones were not proposed. This information is very helpful to a board in assessing the application and also helps to counter the occasional disdainful attitude of applicants' representatives who would rather you not be aware of alternative solutions that might cost the company a bit more in dollars, time or technology.
Do not be shy about requiring the applicant to supply you not only with a copy of the license permission from the FCC (also covered in RSA 12-K) but also reports showing compliance with FCC emission standards and engineering reports of the justification for the site proposed.
Your list should also set forth the standard information provided to applicants about the notices required, fees, hearing schedules, etc. Under RSA 12-K:7, for example, regional notification of surrounding communities (and opportunity for comment) is required whenever a proposed installation could be viewed from those other areas.
The other list you must make for applicants should set forth the procedure you will follow to waive the stringency of certain requirements under the right circumstances. If a requirement serves no particular purpose in the circumstances of a particular application, you should have the ability to modify your requirements. Be careful when you do this to avoid the appearance of favoring one provider over another as the TCA places high priority on guarding a competitively neutral environment for these PWSFs.
Hearings may include neighboring communities. Be sure to comply also with all notice and hearing requirements under RSA Chapter 676. Do not forget that any meeting where public business (such as a PWSF application) is discussed by public officials is subject to the Right-to-Know Law, RSA Chapter 91-A.
The TCA also prohibits denials that "prohibit or have the effect of prohibiting personal wireless services." [47 U.S.C. §332(c)(7)(B)(i)(II)] This can be very tricky, and boards are encouraged to seek the advice of counsel if faced with this issue. The complex interaction between state law and the TCA was described in the New Hampshire Supreme Court in Daniels v. Town of Londonderry , 157 NH 519 (2008). Each situation will vary and must be evaluated carefully.
The board must approve, approve with conditions, or deny the application within 90 or 150 days of the filing date. If a board does not act within those time frames and does not receive an extension from the applicant, the applicant is free to sue in federal or state courts. The court will presume the delay is unreasonable unless the municipality can demonstrate otherwise, and the court may grant any relief it deems appropriate, including an injunction ordering approval and issuance of all permits by the board.
If the board denies an application for a variance or site plan approval for a wireless tower or antenna, the denial must be in writing and supported by "substantial evidence contained in the written record." [47 U.S.C. §332(c)(7)(B)]
Implications of this requirement are simple and you have heard it before: document, document, document! Create a paper trail on which the board's later/eventual decision may be reasonably based.
Always make it a practice to notify applicants of their appeal options in the case of an adverse decision. A town should be scrupulously certain to adhere to procedural due process and never be in a position to be accused of playing any kind of bureaucratic shell game.
Applicants may challenge a denial in federal or state court. If the court finds the denial was in violation of state or federal law, it will order relief it deems appropriate, including a remand to the board or an injunction ordering that the approval be granted.
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