Bar News - September 17, 2014
Environmental, Telecomm, Utilities & Energy Law: New Developments in Permitting Process for Wireless Siting
By: William J. Dodge
When advising town officials, landowners and infrastructure owners, municipal zoning and real estate attorneys should be aware of the recent law changes surrounding the siting of wireless communication projects in New Hampshire.
Senate Bill 101, enacted in 2013, affects land use permitting for these projects. The new law also overlaps key developments in federal law designed to expedite local and state land use permitting for certain types of projects.
RSA 12-K Prior to Recent Law
State legislation in 2013 substantially revised RSA 12-K, which since 2000 had served as the legislature’s framework for state and municipal regulation of cellular and wireless deployment.
In its original form, RSA 12-K was designed to reinforce the authority of municipal governments to regulate the placement of new communications towers. The 2000 version of RSA 12-K did not distinguish among projects to build new towers, install new antennas and equipment on existing towers or support structures (i.e., collocation), or modifying equipment to add new technologies. Although the NH Office of Energy and Planning was charged with developing a model municipal ordinance and given rulemaking authority for wireless siting, each municipality was left to establish its own requirements for different types of projects. Consequently, municipal regulation of wireless facilities prior to 2013 was largely a patchwork of inconsistent regulations and processes.
The most significant effect of the patchwork was to delay the timing for deploying new technologies for consumers – particularly improvements to wireless high-speed broadband – as well as slowing the speed of deployment of equipment installations on and modifications to existing infrastructure. Given the exponential increase in the number of mobile device users between 2000 and 2013, particularly following the advent of smartphones and migration from “voice-only” services toward wireless Internet access, state government saw a need for an expedited review process.
Expedited Review Process for
Collocations and Modifications
The revisions to RSA 12-K in SB101 bifurcate the municipal review process between streamlined review of collocations and modifications, on the one hand; and preservation of existing municipal regulation for new towers/substantial modifications, on the other.
As newly defined in RSA 12-K:2, collocations involve the installation of antennas and related equipment on mounts (i.e., existing towers and other non-tower support structures such as buildings, water towers and utility poles). Collocations encourage use of existing support structures for network expansion in areas with little or no coverage, as well as those spots where users might experience dropped calls due to coverage gaps and capacity demands.
Modifications are replacements and alterations of existing wireless facilities on previously-permitted support structures. Modifications are essential for carriers to complete network service enhancements, such as deploying 4G LTE technology.
Through SB101’s changes to RSA 12:K, collocation and modification projects are no longer subject to processes and submission requirements for site plan review, special exceptions, variances, or other land use permits administered by planning and zoning boards.
Instead, a carrier or an infrastructure provider applies for building permits only. The issuing authority – whether a building inspector, selectmen, or town administrator – is given 45 days to decide on the application based solely on municipal and state building code requirements.
Typical items submitted might include a structural report from a licensed engineer, as well as suitable construction drawings. An applicant is not required to submit information contained in site plan regulations or a zoning ordinance.
RSA 12-K:11 provides strict limitations on information that authorities can request of a carrier on an application for a collocation or modification, such as radiofrequency emissions studies or monitoring plans, alternative site design or locations, new types of alternative technologies (e.g., small cell or outdoor distributed antenna systems), and generator placements. Notably, reviewing authorities cannot impose removal bond or surety requirements on new collocation or modification projects, unless those requirements exist in existing zoning and planning laws for other types of commercial developments.
The municipality can impose review fees for the application, provided that the fee is similar to what would be required for other types of commercial development. And reviewing authorities cannot condition approval of collocations and modifications upon removal of other existing towers or facilities, or upon allowing for municipal space on or near an existing tower or mount for less than market rate.
The entity reviewing the application has 15 days to notify the applicant of a deficiency, and the applicant has a corresponding 15-day cure period to maintain the 45-day expedited timeframe. If the issuing authority has not responded within 45-days, the application is “deemed approved,” and the applicant can proceed with the project. Any appeals of a collocation or modification are not subject to a building code board of appeals under RSA 674:34. Instead, an applicant may pursue an action in superior court to challenge denial of a permit, or to compel issuance of the building permit based on delay.
Though this streamlined system for review of collocations and modifications may seem unwarranted in light of more recent federal law – including the so-called “shot clock” ruling upheld in City of Arlington v. FCC (2013), and the preemptive effect of the TCA over collocation and modification applications as set forth in Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 – the changes to RSA 12 K were designed to implement laudable goals. These include ensuring uniformity across New Hampshire with respect to the permitting process and facilitating the collection of personal wireless service facilities on existing antenna mounts or towers, and keeping pace with technological improvements, according to RSA 12-K.
When one considers that much of the state has yet to experience reliable wireless phone or Internet service, these added incentives for use of expedited permitting are properly seen as a means of encouraging carriers to devote resources to unserved and underserved areas.
Continued Regulation of New Towers and Major Modifications
The flipside of expedited permitting for collocations and modifications is the preservation of existing municipal zoning ordinances and regulations over new towers and “substantial modifications.”
As defined in SB101, a substantial modification includes changes to an equipment compound at a tower by greater than 2,500 square feet, extensions from the tower or mount by more than 20 feet, and height extensions of up to 20 feet.
Importantly, the height test is dependent on the permitted vertical height of a tower, requiring the applicant to review prior permits for that tower. With respect to a non-tower support structure such as a building, the substantial modification test is based on the “existing vertical height” at the time the application is submitted.
Another important test for a substantial modification is a change that “adds to or modifies a camouflaged [facility] in a way that would defeat the effect of the camouflage,” the statute states. This latter provision was intended to avoid subsequent modifications to or collocations on “stealth” facilities (e.g., faux facades on building parapets, mono-pine towers) undermining the original permit conditions pertaining to visual impacts.
The revised statute makes clear that the scope of an authority’s review of zoning, land use or permit applications for the siting of new towers and substantial modifications remains intact.
Public hearings, design review, regional notification, and other traditional land-use requirements remain in place for new towers and substantial modifications.
Municipal entities do not need to hold a separate meeting to make a regional interest determination. The test for regional notification is still based on visibility within a 20-mile radius of the proposed structure, but only for municipalities within New Hampshire (not bordering jurisdictions). Best practice suggests that all New Hampshire municipalities within the radius should be given notice, considering the difficulty of determining visibility at different times of the year from various vantage points.
Wireless technology is increasingly critical for work, education, social networking, public safety, and recreation. Because of New Hampshire’s challenging topography and varied population distribution, wireless service reliability in many parts of the state requires attention and improvement.
SB101 builds on key developments in federal law by incenting carriers and infrastructure providers to use existing structures for network expansion wherever possible, while also creating a predictable and expeditious means to upgrade networks.
At the same time, SB101 preserves and clarifies the existing scope of municipal regulation of new communications towers and substantial modifications to those projects, preserving the core values and concerns manifest in the 2000 version of the statute.
|William J. Dodge
William J. Dodge is a partner in the Energy and Telecommunications Group at Downs Rachlin Martin. In addition to securing permits for wireless projects in New Hampshire and Vermont since 2000, he testified before the legislative committees that considered and adopted SB101.