eNews January 10 Action Alert

Wednesday, January 10, 2018 - 03:44pm

Make calls by noon Jan. 11 in opposition to loss of zoning authority over new wireless installations

HB 1258 (Kilgore), legislation promoted by the wireless industry, would eliminate most local control over the installation and operation of new wireless structures. The legislation removes the ability of local elected officials, residents and businesses to have input into decisions affecting the character of their own communities.

The House Commerce and Labor Committee, which is chaired by Del. Kilgore, may meet as early as Jan. 11, following adjournment of the floor session (even though the committee membership has not been officially announced).

Please call your member(s) of the House of Delegates by noon Jan. 11 in opposition to HB 1258. Contact information for all house members.

If you have questions, or information to share, please email Michelle Gowdy, mgowdy@vml.org.

HB 1258 “Wireless” Talking Points

CHANGES IN DEFINITIONS

The bill makes several changes in definitions, including adding the terms (but not working definitions) of Administrative Review-Eligible Project and Standard Process Project.

“Administrative Review-Eligible Project” includes:

All co-locations on any existing structure that is not a small cell facility
Installation or construction of a new structure that is not more than 50 feet if not more than 10 feet above the tallest existing utility pole located within 500 feet of new structure (not in an historic district) and designed to support small cell facilities

“Standard process project” is defined as any project other than an administrative review-eligible project.

Talking points:

These are not standard zoning terms in Virginia.
Working definitions would either have to be included in the bill or determined by litigation.
The bill would be treating the wireless industry differently from all other private profit-making industries, thus leaving localities (and the state) open to charges of discrimination against other industries.
The likelihood is high that other industries will expect the same or similar treatment.
Zoning decisions should be made based upon the best interests of the community. The health, safety and welfare of the citizens should outweigh the profitability of corporations.

CHANGES IN THE ZONING PROCESS

The locality may not require a special exception, special use permit or variance for “Administrative Review-Eligible Projects”

The locality must provide guidance on incomplete application within 10 days or application is “Deemed Complete”

If application is disapproved, locality must:

Provide a written statement explaining the rejection of the application
Explain any modifications in writing (this may be used by the applicant as evidence that the locality’s disapproval was arbitrary and capricious)
May not discriminate between the applicant and other service providers
Support disapproval by a substantial record evidence contained in a written record publicly released within 30 days

If the application is disapproved, the applicant has the right to appeal.

The locality cannot:

Require proprietary, confidential or other business information
Condition approval on the removal of another structure
Impose surety requirements that are not similar
Discriminate on the basis of ownership
Impose unreasonable screening
Impose that the applicant use services owned by a particular company
Require co-location
Limit duration of approval
Require services unrelated to be performed

A locality may disapprove a standard process project if:

Proposed height is over 50 feet, if there is no discrimination between the applicant and other service providers
All utility facilities are underground if:
- Undergrounding requirement was in place 3 months prior to submission
- Locality allows co-location on existing poles
- Locality allows replacement of existing poles

HB 1258 sets aggressive timetable for approvals; If timetable is not met, the project is “Deemed Approved”:

150 days for a new structure
90 days or timelines as established by the FCC, whichever is shorter

Talking Points:

Local land use authority rests with locally elected officials who best know their communities and their citizens’ needs.
Local zoning takes into consideration that the economic, social, cultural, and other conditions are not one size fits all.
Local zoning recognizes the importance of citizen input. The bill’s provisions remove the ability of our citizens to have meaningful input over the character of their communities.
The bill creates a paradigm shift in authority, moving the decision-making process away from the community and its elected officials to FOR-PROFIT companies who care about their bottom line, not about our citizens’ welfare.
Specifically, the “Deemed Approved” language strikes down the legislative process. This bill takes away the ability of a locality to ask questions of the applicant or negotiate with the industry about a specific location or type of equipment or screening.
This is not the process for a typical zoning application and there is no compelling justification for this industry to be treated in a special manner.

FEES SET IN STATUTE

Legislation requires that the fee for Administrative Review Eligible Project shall not exceed $500

The fee for a Standard Process Project is set at “the actual direct costs to process the application…”

Talking points:

Placing a fee in the Code is problematic because every time that there is a proposed change, legislation has to enacted.
The fees will never be in tune with actual costs. A state-determined fee does not account for the differences in workloads as well as the costs and availability of professional services costs that occur throughout the Commonwealth.
Actual Direct Costs are not typically calculated by localities; this unfunded mandate would place an additional burden on local taxpayers who will end up subsidizing the applicants.
The alternative is that the applications will be automatically approved because localities won’t have the resources to review the projects within the arbitrary deadlines.