Part II: Iowa’s impending wireless facilities siting legislation

HF655 contains a section governing the contractual relationship between a local government and wireless facilities provider when the provider leases public land for such facilities.
  • The local government must offer the market rate value for use of that land.
  • The term of the lease shall be for at least twenty years.
  • If the local government and the provider cannot agree on the market rate for the lease, the appraisals of a three-person panel of appraisers shall determine the market rate. Each party will appoint one appraiser and the two appointed appraisers shall select a third appraiser. Each party shall bear the cost of its own appointed appraiser and equally share the cost of the third appraiser.
  • Each appraiser shall then independently appraise the appropriate market rate for lease of the land. The market rate shall then be set at the median value between the highest and lowest market rates determined by the three independent appraisers. However, if the median between the appraisals of the appraisers appointed by each party is greater than or less than ten percent of the appraisal of the appraiser selected by the two appraisers, then the appraisal of the appraiser selected by the two appraisers shall determine the rate for the lease.
  • The local government can then  approve or reject the lease rate as determined by the appraisal process within fifteen days following completion and receipt of the appraisals. Failure to reject the lease rate within fifteen days constitutes approval of the lease rate.
A local government shall not mandate, require, or regulate the installation, location, or use of transmission equipment on a utility pole.
HF655 dos not prohibit an airport or local government from administering and enforcing airport zoning under Iowa Code Chapter 329.
It does not infringe upon the jurisdiction of an historic preservation commission or local government to approve or deny applications for proposed alterations to exterior features within an historic preservation district, or on local historic landmarks.

First installment: Iowa’s impending wireless siting rules

The Iowa Legislature has sent a bill to the Governor that will create a set of uniform rules for local governments as they regulate the placement and alteration of  wireless facilities (cell towers and other types of wireless facilities).  HF655 is meant to work in harmony with previously adopted FCC rules, such as the shot-clock rule (here and here) and the rules implementing the Spectrum Act.   In a nutshell, HF655 presents a list of 13 things that a local government cannot do when presented an application for a wireless facility.  Straight from the bill, the list of 13 things that a local government cannot do:

  1. Require an applicant to submit information about, or evaluate an applicant’s business decisions with respect to, the applicant’s designed service, customer demand for service, or quality of the applicant’s service to or from a particular area or site.
  2. a. Evaluate an application based on the availability of other potential locations for the placement or construction of a tower or transmission equipment. b. Require the applicant to establish other options for collocation instead of the construction of a new tower or modification of an existing tower or existing base station that constitutes a substantial change to an existing tower or existing base station. c. Notwithstanding paragraph “b” , an authority may require an applicant applying for the construction of a new tower to state in its application that it conducted an analysis of available collocation opportunities on existing towers or existing base stations within the same search ring defined by the applicant solely for the purpose of confirming that the applicant undertook such analysis.
  3. Dictate the type of transmission equipment or technology to be used by the applicant or discriminate between different types of infrastructure or technology.
  4. a. Require the removal of existing towers, base stations, or transmission equipment, wherever located, as a condition to approval of an application. b. Notwithstanding paragraph “a” , the authority may adopt reasonable rules regarding removal of abandoned towers or transmission equipment.
  5. Impose environmental testing, sampling, or monitoring requirements, or other compliance measures, for radio frequency emissions from transmission equipment that are categorically excluded under the federal communications commission’s rules for radio frequency emissions pursuant to 47 C.F.R. §1.1307(b)(1). 
  6. Establish or enforce regulations or procedures for radio frequency signal strength or the adequacy of service quality.
  7. Reject an application, in whole or in part, based on perceived or alleged environmental effects of radio frequency emissions, as provided in 47 U.S.C. §332(c)(7)(B)(iv). 
  8. Prohibit the placement of emergency power systems that comply with federal and state environmental requirements. 
  9. Charge an application fee, consulting fee, or other fee associated with the submission, review, processing, or approval of an application that is not required for similar types of commercial development within the authority’s jurisdiction. Fees imposed by an authority or by a third-party entity providing review or technical consultation to the authority shall be based on actual, direct, and reasonable administrative costs incurred for the review, processing, and approval of an application. In no case shall total charges and fees exceed five hundred dollars for an eligible facilities request or three thousand dollars for an application for a new tower, for the initial placement or installation of transmission equipment on a wireless support structure, for a modification of an existing tower or existing base station that constitutes a substantial change to an existing tower or base station, or anyother application to construct or place transmission equipment that does not constitute an eligible facilities request. An authority or any third-party entity shall not include within its charges any travel expenses incurred in the review of an application, and an applicant shall not be required to pay or reimburse an authority for consultant or other third-party fees based on a contingency or result-based arrangement. 
  10. Impose surety requirements, including bonds, escrow deposits, letters of credit, or any other type of financial surety, to ensure that abandoned or unused towers or transmission equipment can be removed unless the authority imposes similar requirements on other applicants for other types of commercial development or land uses. If surety requirements are imposed, the requirements must be competitively neutral, nondiscriminatory, reasonable in amount, and commensurate with the historical record for local facilities and structures that are abandoned. 
  11. Condition the approval of an application on the applicant’s agreement to provide space on or near the tower, base station, or wireless support structure for authority or local governmental or nongovernmental services at less than the market rate for such space or to provide other services via the structure or facilities at less than the market rate for such services. 
  12. Limit the duration of the approval of an application, except that construction of the approved structure or facilities shall be commenced within two years of final approval, including the disposition of any appeals, and diligently pursued to completion. 
  13. Discriminate on the basis of the ownership, including ownership by the authority, of any property, structure, or tower when promulgating rules or procedures for siting wireless facilities or for evaluating applications.

Tomorrow’s post will look at other parts of HF655.

News from the Iowa legislature: HF 184 limiting residential occupancy restrictions introduced

I believe this is the third session this bill has reappeared.  House File 184 would allow cities to regulate the occupancy of residential rental property based on square footage, but not on the basis of how many residents are not related or considered family.  University towns are strongly opposed.

The Cedar Rapids Gazette article is here.  HF 184 is here.

Legislative action, week of February 25

HF359 is the successor to HSB121 – discussed here, regulating obscene material in response to the Mall Real Estate case.

HF342 makes amendments to Chapter 237A concerning child care.  Its companion bill is SF201.  It would increase the number of children allowed in child care homes under certain circumstances. Currently, a child care home that is not registered may provide child care to five or fewer children. The bill provides that a child care home in a “small community” (a city of less than 10,000 persons or a county of less than 10,000 persons) may provide child care for between six and eight children for up to three hours a day as long as a parent of each child signs a waiver. The bill also allows a child care home in a small community to provide child care for nine or 10 children for up to three hours a day if each parent signs a waiver and the child care home provides an additional employee during periods when the child care home provides care for nine or 10 children.

HF331 would amend Iowa Code 123.40.  It provides that the premises which had been covered by a liquor control license, wine permit, or beer permit that was revoked could not be relicensed for three years. Current law provides that the premises can be relicensed after one year.

HF330 is also related to liquor licenses.  This bill provides that a person or club holding a liquor license or retail wine or beer permit could not knowingly permit or engage in criminal activity in parking lots and areas adjacent to the licensed premises that are used by patrons of the liquor licensee or permittee. Current law limits this prohibition to criminal activity in parking lots and areas adjacent only to liquor licensees or permittees authorized to sell alcohol for consumption on the licensed premises. A person who violates this new provision would be subject to licensing sanctions and guilty of a simple misdemeanor.

HF328 would require an attorney representing a city or a part-time county attorney to disclose all conflicts the attorney has between the interests or matters of the city or county and those of the attorney’s other clients. It would require the attorney to complete an annual disclosure form provided by the judicial branch.  It would also require the attorney with a conflict to withdraw from representation of the city or county, as applicable, regarding the matter in which the conflict exists unless (1) written consent is received from the attorney’s client, and (2) the elected body adopts a resolution describing the conflict and giving consent to representation on the matter.

SF285 is the companion bill to HF122 regarding common interest communities, discussed here.

SF280 would make new electrical installations on farms subject to the inspection and enforcement provisions Chapter 103, which includes requiring the submission of a request for inspection, payment of inspection fees, performance of an inspection, and condemnation and disconnection orders and appeal procedures.

SF275 would create a manufactured housing program fund within IFA to further the goal of providing affordable housing to Iowans. The money in the fund would provide funding to financing agents or financial institutions to finance the purchase by an individual of a manufactured home that is in compliance with all applicable laws and standards applicable to manufactured homes and manufactured housing.





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