Year: 2009

A lump of coal for Sonoma County residents

Gary Taylor

California’s Sonoma County has ordered officials to remove angels, stars and other religious symbols from Christmas trees in county buildings over concerns they violate the Constitution.     

The actions followed a complaint brought by resident Irv Sutley, an atheist with a history of fighting the inclusion of religion and religious symbols in public meetings and buildings.  Following the complaint, Sonoma County officials conferred with their lawyers, and on Monday the acting county administrator, Chris Thomas, asked county departments to remove stars, angels or any other religious symbols “so that we can celebrate the season yet not appear to endorse Christian or other religious doctrines.” Thomas cited the 1989 Supreme Court decision of Allegheny v. A.C.L.U., which stated that “while Christmas trees could be seen as secular, they could also be seen as religious if decorated with religious symbols.”  Sutley’s complaint did not extend to trees, or to “snowflake ornaments, glass bulbs and colorful lights.”

For the full article from the Santa Rosa Press Democrat click here.  To get just a taste of Sonoma County citizens’ responses to the action scroll to the bottom and click on “view all comments on this topic.”  Warning: you may not want to have young children looking over your shoulder. 

We are determined not to contribute to the holiday BLUZ.  Our families would want it no other way.  Check back in on January 4, and have a happy holiday season!

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Wisconsin town’s action amounted to defacto rezoning in violation of moratorium

Gary Taylor

by Allison Arends

State Of Wisconsin Ex Rel. Village of Newburg v. Town of Trenton
(Court Of Appeals Of Wisconsin, August 26, 2009)

Wis. Stat 62.23(7a) allows a municipality to temporarily enact a moratorium that prohibits adjacent unincorporated towns from changing the zoning of land within 1.5 miles of the municipality’s boundaries.  The moratorium gives the municipality time to work with each unincorporated town affected to prepare and adopt a comprehensive plan on how the land in that unincorporated town should be used.  The Village of Newburg adopted a temporary moratorium on  land within 1.5 miles of its boundaries for two years as of November 20th 2006. A parcel of land owned by Deerprint Enterprises, LLC, is located within the neighboring Town of Trenton and also within the Village of Newburg’s extraterritorial zoning moratorium. At the time the moratorium was put in place the parcel was zoned residential allowing, “single-family residential development in a farmette, or estate-type setting.”  The zoning did not permit commercial or industrial units.

While the moratorium was in place the Town approved a six-unit condominium development on the Deerprint land.  The development included an existing non-conforming commercial business, bud as part of the development agreement, the Town agreed to language that stated that “additional commercial units may be created… by subdividing all or a portion of the space included within the original commercial/industrial unit to form one or more additional commercial units.”

The Village argued that the Deerprint development included nonconforming mixed uses, and in order for this to be legal the Town must approve a planned development overlay for the parcel which, in turn, would require a rezoning in violation of the Village’s moratorium. The village argues that the approval of Deerprint parcel was invalid without an overlay and that the moratorium prohibits the Town from changing the zoning of the land.

The Wisconsin Court of Appeals addressed the Town’s argument that the Deerprint development is an issue of condominiums and not an issue of rezoning.  The court rejects this argument by pointing out that, “a change in zoning—or other approval under a zoning ordinance—should not be required for condominium conversion, unless a change in the use of the existing property is involved.”  The Village successfully illustrates that Deerprint development changed the use of the existing property and therefore an overlay or rezoning of the property was needed. The Deerprint parcel is zoned residential, yet one of the condominium units is identified as commercial/industrial. The court stated, “ We simply do not understand how a condominium unit set aside for commercial use does not run afoul of a zoning ordinance prohibiting commercial use just because it lies within an otherwise residential condominium.” In addition, the Town itself prohibits mixed uses, like Deerprint’s development, unless it grants an overlay which causes the court to conclude that the Deerprint development is a nonconforming use, and further more, that the Town Board, “rezoned without seeking the necessary approval.”

The Town argued that the case was moot because the moratorium had expired by the time it was heard by the trial court.  The court rejected the Town’s argument by analogy: ” a person who violates a statute is subject to that statute’s consequences, even if the legislature repeals the statute before the opposing party commences or completes its cause of action for the alleged offense.” The court also rejects the Town’s argument that the Village has no standing to seek declaratory relief when the court concludes that the Village has a legally protected interest that stems from its extraterritorial zoning authority, and if the Town was to grant an overlay to Deerprint, then its approval would violate the moratorium providing the Village with standing.

This case, as the court points out, presents an instance where a Town attempts to avoid the restrictions inherent to an extraterritorial zoning moratorium by framing its action as something different than a zoning change, when in reality the Town attempts to hide its approval of commercial building by making it a part of an otherwise residential condominium plan. As a result, the court found the Town’s approval to be “de facto rezoning” and therefore a violation of the Village’s extraterritorial zoning moratorium.

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More on FCC’s shot-clock ruling on cell tower decisions

Gary Taylor

by Gary Taylor

The International Municipal Lawyers Association (IMLA) has assembled materials addressing the FCC’s recent ruling placing time limits on a city/county acting on a cell tower application (I previously blogged on the ruling itself – available here).  The Varnum law firm has developed a presentation on the ruling, what it means for local governments, and strategies for compliance, that is available here.  In addition, the firm of Miller and Van Eaton has drafted a memorandum – available here – that also discusses the possible consequences of the ruling.

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No Equal Protection claim in village’s refusal to assume private water system

Gary Taylor

by Gary Taylor

Susan Srail, et.al. v. Village of Lisle, IL
(Federal Seventh Circuit Court of Appeals, December 7, 2009)

A small group of residents of a subdivision in the Village of Lisle, Illinois brought a class action suit against the Village, claiming a violation of their rights under the Equal Protection clause of the US Constitution.

The Oak View subdivision was built in the 1950s, and in 1956, the developer created its own water and sewer utility to serve Oak View residents. Since that time, a privately owned utility company has provided Oak View residents with their water needs. The Village of Lisle, Illinois, was incorporated in 1956. In 1967, Lisle developed its own water system. Prior to that time, most residents received their water through private, underground wells. Lisle’s system grew gradually as developers built new housing developments, installing water mains that the developers then donated to Lisle. In 1980, Lisle purchased one of the two privately owned water companies operating in town, which also contributed to the growth of the Lisle system. Lisle did not purchase the privately owned water company operating in Oak View. The Lisle system received its water supply from the DuPage Water Commission (“DWC”), which provided water from Lake Michigan to the utilities with which it contracted. Lisle would then deliver this water to its customers. The water company serving Oak View entered into a similar contract with DWC to receive its water; however, because of difficulties in transporting the water from DWC to Oak View, Lisle entered into an agreement with DWC and the water company in 1995 providing that Lisle would deliver the water purchased by the water company from DWC’s facilities to Oak View. In 2002, Illinois-American Water Company (“IAWC”) purchased the water company that operated in Oak View, becoming the exclusive operator of the water system in the subdivision. Under both IAWC and its predecessor, Oak View’s water system operated with pressure insufficient to extinguish fires. The concern over water pressure sparked the litigation in this case.  The Oak View litigants claimed that Lisle impermissibly discriminated against them by expanding its water services to other subdivisions within Lisle, but refusing to expand its services to Oak View despite the problems with water pressure.

The Seventh Circuit restated the settled law that an equal protection violation occurs when a regulation draws distinctions among people based on a person’s membership in a “suspect” class (suspect classes include race, alienage, and national origin) or when the government action denies of a fundamental right (fundamental rights include freedom of speech and religion. With both suspect classes and denials of fundamental rights, the government’s justification for the regulation must satisfy the strict scrutiny test to pass muster under the Equal Protection Clause.  The court found neither scenario present in this case.  The residentsare not members of a suspect class.  Likewise, the Constitution creates no positive entitlement to fire protection, nor is the right to continued municipal water service a fundamental right. 

In the absence of deprivation of a fundamental right or the existence of a suspect class, the proper standard of review is rational basis. Rational basis review requires the plaintiff to prove that (1) the government intentionally treated plaintiffs differently from others similarly situated; (2) this difference in treatment was caused by the plaintiffs’ membership in the class to which they belong; and (3) this different treatment was not rationally related to a legitimate state interest. Lisle asserted that it had an economic reason for its refusal to extend its system into Oak View; i.e., that the costs associated with an extension, coupled with its assessment of resident disinterest and the unlikely success of an expansion, provided it a rational basis for its decision. Lisle pointed to the fact that an expansion into Oak View would cost it approximately four million dollars.  Lisle would normally recoup the costs of an expansion by passing these costs on to residents who connect to the Lisle system; however, Lisle surveyed nineteen Oak View homeowners who lived adjacent to existing Lisle mains. Out of the nineteen surveyed, only one expressed interest in connecting to the Lisle system.  Appellants claim that Lisle’s failure to survey all of the Oak View residents made its reliance on the nineteen responses unreasonable.  The court confirmed, however, that rational basis review, “courts are compelled . . . to accept a legislature’s generalizations . . . .”  Considering that Lisle had a rational basis for refusing to assume the subdivision’s private system into the municipal system, the Seventh Circuit affirmed the judgment for Lisle.

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7th Circuit rules on city’s point-of-sale inspection ordinance

Gary Taylor

by Gary Taylor

Hussein H. Mann, et. al. v. Calumet City, IL
(Federal Seventh Circuit Court of Appeals, December 7, 2009)

Post-sale inspection ordinance found constitutional. 

Calumet City, Illinois has an ordinance that forbids the sale of a house without an inspection to determine whether it is in compliance with the City’s building code.  The ordinance requires a property owner to notify the City government of a proposed sale of his property. The City has 28 days after receiving the notice to conduct a compliance inspection. During that period it must notify the owner of its intention to conduct the inspection. If he responds that he won’t consent to an inspection, the City has 10 days within which to get a warrant from a judge.  Within three business days after conducting the inspection (whether or not pursuant to a warrant) the City must notify the owner whether the house is in compliance with the building code and, if not, what repairs are required to bring it into compliance. If the inspection discloses an unlawful conversion of the house to a multifamily dwelling, the order, instead of being a repair order, will order deconversion. After the City is notified that the repairs have been made or deconversion effected, it has three business days within which to reinspect. An owner who is in a hurry to sell the house can do so before completing the ordered repairs or deconversion if his buyer posts a bond equal to the expected cost of bringing the house into compliance. The buyer then has 180 days to complete the repairs or deconversion; if he fails to do so, the City can ask a court to order him to do so. The owner can appeal a repair or deconversion order to the City’s Zoning Board of Appeals, where he is entitled to a full hearing. The appeal stays the City’s order. An owner who loses in the board of appeals is entitled to judicial review in the Illinois state court system in the usual manner.

Plaintiffs challenged the constitutionality of the ordinance “on its face,” meaning that in any application of such an ordinance it does not meet constitutional muster.  The district court dismissed the claims, and Plaintiffs appealed to the Seventh Circuit.

Plaintiffs challenged the ordinance on substantive due process grounds, arguing that there was no rational basis for the regulation.  After pointing out that Plaintiffs were engaging in an “uphill fight” to prove their claim, the court examined Plaintiffs’ arguments.  The court observed that building codes, to which the challenged ordinance are the most reasonable of regulations:

“They do increase the cost of property (as do other conventional regulations of property), but if reasonably well designed they also increase its value. Without them more buildings would catch fire, collapse, become unsightly, attract squatters, or cause environmental damage and by doing any of these things reduce the value of other buildings in the neighborhood. Assuring full compliance with building codes is difficult after a building is built, because most violations are committed inside the building and thus out of sight until a violation results in damage visible from the outside. …All this seems eminently reasonable….”

The Plaintiffs also raised a procedural due process claim, questioning the procedural adequacy of the method by which the City’s ordinance is enforced.  The Plaintiffs argued that it fails to provide for “pre-deprivation” procedures; that the City should be required to go to court, or conduct an administrative hearing before it can order repairs or deconversion.  The court dismissed this line of reasoning, pointing out that a homeowner can challenge the order, and if he does it is stayed.  “That is pre-deprivation process…. All that is required is . . . notice and an opportunity to be heard before being deprived of a protected liberty or property interest.”  The Seventh Circuit affirmed the district court’s dismissal.

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Church’s request for preliminary injunction under RLUIPA fails

Gary Taylor

by Allison Arends

River of Life Kingdom Ministries v. Village of Hazel Crest
(Federal Seventh Circuit Court of Appeals, October 27, 2009)

The River of Life Kingdom ministries, a nonprofit religious organization, attempted to move the location of its congregation from a warehouse in Chicago Heights to Village of Hazel Crest. The church stated that its main objective in choosing the Village, which had been in serious economic decline since the 1990s, was to promote its mission of promoting literacy, empowering communities, developing leaders, transforming economic conditions, and improving life, health, and safety for local citizens in this particular struggling community.  The property purchased by the church was in a Tax Increment Financing (TIF) district established to “provide an attractive commercial area that enhances the regional image of Hazel Crest.”  The zoning ordinance that controlled the TIF district was “Service Business District” and authorized commercial uses for the property but excluded religious services except by special use permit.  The church, expecting to receive a special use permit from the Village, bought the property regardless of the specific provisions of the zoning ordinance.  The Village denied the church’s request for a special use permit.

The church filed a complaint in which alleged that the Village’s ordinance violated the 1st Amendment, the Equal Protection clause, and the Substantial Burden and Equal Terms Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA). While the motion for preliminary judgement was pending before the court, the Village changed the zoning ordinance to also exclude other forms of assemblies such as community centers, non-religious schools, meeting halls etc. This change in the ordinance was the Village’s attempt to conform to the provisions of RLUIPA. The district court rejected the church’s request for preliminary injunction and the church appealed. The issue of this appeal to the Seventh Circuit revolves around the equal terms provisions set out in RLUIPA and whether the Village violated those provisions.  RLUIPA states;

“No government shall impose or implement a land use regulation in a manner that greats a religious assemblyor institution less than equal terms with a non-religious assembly or institution.” 42 U.S.C. 2000cc(b)(1)

The Seventh Circuit was given the task of reviewing the district court’s refusal to issue a preliminary injunction.  To obtain a preliminary injunction, the church was required to show (1) the church was likely to succeed on the merits of the case, and (2) the harm to the church that would come without the injunction would outweigh the harm done to the Village if the injunction were granted.  

As to the first requirement of awarding a preliminary injunction, the court evaluated whether the church was likely to win on the merits of the case.  The church argued that the Village’s ordinance violates RLUIPA in the fact that laws must treat religious and non-religious assemblies on equal terms.  The interpretation and application of the equal terms provision of RLUIPA was a matter not previously addressed by the Seventh Circuit.  The Seventh Circuit looked to conflicting interpretations by the Eleventh and Third Circuits for guidance.  

The Eleventh Circuit court used the natural meaning of “assembly” from the dictionary to determine that private clubs and lodges were assemblies similarly situated to churches and synagogues, therefore only looked at the definition of assembly to determine whether there was a violation of RLUIPA. This logic, applied to the present case, would most likely find the Village’s ordinance in violation of RLUIPA.

The Third Circuit court, however, not only takes into account the definition of assembly but analyzes the intent of the Village’s ordinance to determine its neutrality. The Third Circuit evaluated the objectives of the ordinance by determining the principles of neutrality that The Supreme Court established in Employment Div. Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) The Supreme Court found that, “the right of free exercise of religion does not require the courts to invalidate neutral laws of general applicability.” The principles of neutrality find an ordinance discriminatory 1.) if it refers to a religious practice without a secular meaning discernible from the language or context and 2.) if its object is to suppress religious practice. Based on these principles the court argues that,

“facial differentiation between religious and non-religious institutions alone was insufficient to demonstrate that the ordinance was non-neutral. Only when the institutions had the same effect on the city’s objectives was the regulation discriminatory.”

The court noted that the Eleventh Circuit court’s rationale would, “significantly expand the scope of local ordinances implicated under RLUIPA. There is no shortage of hypotheticals demonstrating the dangers of such an expansive reading of the Equal Terms provision.” and that, “if used would significantly impede the ability of local governments to pass legislation that place incidental burdens on any religious practice.” The court finds that the proper interpretation of “less than equal” lies within the Third Circuit’s decision because they found it is, “more consistent with Congress’s intent and with the case law interpreting the Free Exercise Clause.”

The court then went on to evaluate the other issue in the question of preliminary injunction. The court was challenged with deciding whether the Church will suffer irreparable harm if it is not allowed to relocate immediately, and if so, whether it exceeds the harm an injunction would cause to the Village. Because the court cannot presume that RLUIPA and First Amendment violations are one and the same, the Church must explain how the inability to relocate to the Village’s TIF District inhibits its religious exercise (irreparable harm). The Church attempts to argue that its mission is directly tied to the specific location. The court recognizes the possible harm this may cause to the Church, but the court goes on to explain that it must use a “sliding scale” approach in evaluating the harm to both parties. Because it has been determined the Church will most likely lose in the merits of the case, the Church must show their harm significantly outweighs the harm to the Village. The court finds that allowing the church to locate to this district would be incompatible with the Village’s development plan and recognizes that, “uncertainty over the Village’s ability to enforce its zoning ordinance, or the future direction of the community, would likely compromise this goal in the future… presenting a significant but unquantifiable threat to the village’s redevelopment plan.” The court concludes that the Church’s harm does not significantly outweigh that of the Village. The judgement of the district court is affirmed.

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Iowa C.A. finds signatures on letter did not constitute deliberation among elected officials

Gary Taylor

by Gary Taylor

Fleener v. City of Oskaloosa, et. al.
(Iowa Court of Appeals, November 25, 2009)

Signatures on letter did not constitute deliberation among elected officials.

The Mahaska County Board of Supervisors held a public meeting on November 19, 2007, regarding the possible location of a new Pella Municipal airport in Mahaska County. The Board rejected the proposed site if it were to be used solely as a Pella airport, rather than a regional airport, and sent a letter to Pella city officials to that effect. On January 2, 2008, the CEO of Musco Sports Lighting in Oskaloosa called the Board of Supervisors office and asked for a meeting.  Not knowing the purpose of the meeting, one supervisor went alone to the Musco offices where he met with other Musco officials and the director of the Oskaloosa Chamber of Commerce.   The supervisor was informed that the Pella Airport Site Selection Task Force was scheduled to meet on January 4, 2008 and Musco was interested in keeping dialog open as to the concept of a regional airport.  An employee of Musco was present at this meeting, and was placed in charge of drafting a letter to the City of Pella mayor and city manager, anticipating gaining support from both the Oskaloosa City Council and Mahaska Board of Supervisors for Musco’s request.  With the assistance of the mayor of Oskaloosa a letter was drafted.  This letter was to signal their openness to further communicate with Pella about airport site selection. The January 3, 2008 letter read:

Airport site selection is important to the economic well-being and sustainability of the entire area.  Accordingly, for the long-term mutual benefit of our communities we would request the opportunity to participate with the Pella City Council in evaluating site selection for a new airport to serve employers and employees of the Pella and Oskaloosa communities.  Thank you.

Sincerely . . .

The Musco employee contacted various members of both the Oskaloosa City Council and Mahaska County Board of Supervisors, in hopes of obtaining their signatures.  The mayor and four of the seven Oskaloosa City Council members signed the letter, as did two of the three Mahaska County Supervisors.

On February 4, 2008, J.D. Fleener, a Mahaska County resident, filed this action against the above defendants, alleging a violation of the Iowa Open Meetings law.  The Mahaska Board of Supervisors held a public meeting on February 19, 2008, in order to authorize the sending of an additional letter to the City of Pella, clarifying their interest regarding the airport site selection.  Similarly, the Oskaloosa City Council also held a public meeting and voted to send a follow-up letter, expressing the majority of the Council’s interest in continuing dialog with Pella on the airport site selection to benefit both communities.  The Mahaska supervisors, joined by the Oskaloosa defendants, filed a motion for summary judgment of the open meetings challenge.  The district court granted the motion on January 14, 2009.

The issue in the case was whether the events culminating in the signatures of the elected officials from Mahaska County and Oskaloosa constituted a “meeting” under Iowa’s open meetings law (Iowa Code 21.3).  In her deposition, the Musco employee discussed contacting the signatories and inviting them individually to the Musco office, or volunteering to bring the letter to their home or place of business in order to sign the letter.  The court concluded that there was no evidence of an in-person gathering of any of the elected officials to discuss the letter among themselves.

The court next looked at whether an electronic gathering occurred.  The evidence indicated that the Musco employee contacted the elected officials individually, either by phone or e-mail, prior to and during the drafting of the letter.  At least one of the elected officials reviewed a draft of the letter prior to signing the final copy.  Fleener argued that these separate phone and e-mail contacts amounted to serial communications resulting in deliberation, such that a meeting occurred.  The court disagreed, however, finding neither evidence that the elected officials communicated with each other, nor intent to circumvent the open meetings law requirements.  According to the court, the most that could be said was that as the various members signed the letter, the later ones to sign knew who had signed before them.  Their signatures were based on conversations with individuals from Musco, not each other.   The court affirmed the ruling in favor of the city and county officials.

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Adjoining landowners in annexation case need not exhaust administrative remedies before going to court

Gary Taylor

by Gary Taylor

William and Sharon Oglesby, et. al. v. City of Coralville
(Iowa Court of Appeals, November 25, 2009)

District court had jurisdiction to review claim of inadequate notice of city action on annexation.

Scanlon Properties submitted an annexation request to the City of Coralville for property it owns along North Liberty Road, as well as a half mile of the right-of-way of North Liberty Road that connects the city to the Scanlon property.  The property is in the two-mile extraterritorial area of North Liberty.  On the same day the city council voted to approve the annexation, several owners of property adjacent to the half mile stretch of North Liberty Road (the plaintiffs in this case) filed a petition in district court contending the city had failed to provide them the notice of annexation required under Iowa Code 368.7(1)(b) and (d).  At a district court hearing held two weeks later the city asserted the plaintiffs did not have standing to bring their claims and had failed to exhaust administrative remedies.  The district court found that the city was required to give plaintiffs notice before taking action to annex the land, and issued a temporary injunction to prevent the city from taking further action on the annexation “until such time as [the city] complies with all statutory notice requirements.” 

After two years of procedural wrangling the plaintiffs moved for summary judgment to obtain a final resolution of the case, stating that the city council action approving the annexation was void since the statutorily-required notice was not provided.  The city cross-moved for summary judgment asserting the plaintiffs were not entitled to notice, did not have standing, and had not yet exhausted all available administrative remedies.   The district court agreed with the plaintiffs, and further determined that since the city council action was void, there was no decision to be reviewed by the City Development Board (CDB) and thus there were no administrative remedies to exhaust.

The Court of Appeals affirmed the ruling of the district court, granting summary judgment in favor of the plaintiffs which voided the annexation.  After noting that the annexation required CDB review under Iowa Code 368.7(3) because of its proximity to North Liberty, the court reviewed the purposes of CDB review.  It noted that the CDB is not “an all-purpose enforced of chapter 368’s requirements.”  The CDB’s review of annexations within the extraterritorial area of another city does not include review to ensure compliance with the landowner notification requirements.  Thus, in the ordinary course of events the CDB will not even have information about the extent to which landowners were notified before the city acted.  The court concluded that resort to the CDB to rectify a failure by the city to give notice is “permissive only, and not exclusive of the judicial remedy.”  This being the case, there is no requirement that the administrative remedy of CDB review be exhausted before resort to the judicial system for resolution.  It did not help the city’s case that “in a classic Catch-22” the city argued simultaneously (1) before the district court that plaintiffs had not exhausted their administrative remedies, and (2) before the CDB that the plaintiffs did not have standing to appear in the CDB proceedings.   “An administrative remedy would hardly be adequate for the plaintiffs if it expressly disallowed them from appealing the administrative decision.”

Finally the court dismissed the city’s claim that the plaintiffs were not entitled to notice because they do not “own” North Liberty Road (although the city did concede the plaintiffs held legal title to the land over which the road passes, they argued that legal title was immaterial because plaintiffs did not “control” the land).  Regardless of the resolution of this technicality, the court concluded that plaintiffs would be entitled to notice as owners of land adjacent to the road if they, in fact did not “own” the road.

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FCC creates “shot clock” for cell tower/antenna applications

Gary Taylor

by Gary Taylor

On November 18 the Federal Communications Commission (FCC) issued a declaratory ruling that could have a significant impact on the way some communities process applications for cell towers and antennas. The ruling establishes a “shot clock” for local zoning authorities acting on wireless facilities siting applications. The Federal Telecommunications Act (FTA) requires local governments to act on applications within a “reasonable period of time.” The order sets presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing antennas on existing towers) and 150 for all other applications. Failure of the local government to issue a decision within the appropriate time frame will constitute “failure to act,” which will allow the applicant to bring a lawsuit. The “shot clock” is rebuttable in court, meaning that the local government may produce evidence that the delay was reasonable under the circumstances. Of course the local government will bear the costs of litigation (at least initially) to defend the reasonableness of the delay. The rebuttable presumption is a less-drastic alternative than what was requested by the wireless service industry, which had pressed for an automatic grant of a requested permit if the applicable deadline was not met.

The ruling also determined that where a local government denies a personal wireless service facility siting application solely because that service is available from another provider, such a denial violates the section of the FTA that “prohibits, or has the effect of prohibiting the provision of personal wireless services.” The FCC was convinced of the need for such a determination by evidence produced by the wireless industry that cities and counties were using a “one is enough” rationale for denying applications for towers and antennas.

The FCC declaratory ruling issued on November 18 can be accessed here.  The FCC’s news release about the ruling is here.

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