Zoning Litigation – Enforcemen...
Introduction As we have explained at length in prior E-Letters, the enforcement of zoning violations is often best accomplished through the ...Read More
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During the 2018 lame duck session, many bills were introduced, and some passed, attacking the authority of local government. Senate Bill 637 was one of those bills that did pass and was signed by Governor Snyder. It may have the greatest impact on all townships in 2019 as it opens miles of township rights-of-way with little conditions, and few are prepared for the applications that will ensue. Senate Bill 637, introduced by Senators Hune and Nofs, creates the Small Wireless Communication Facilities Deployment Act (“Small Cell Facilities Deployment Act”). The conditions are far more favorable to the wireless communication providers as the goal of the Small Cell Facilities Deployment Act is to limit restrictions and costs related to wireless infrastructure deployment imposed by local governments. It appears to accomplish this goal. The Act will be effective March 12th, 2019. This E-letter discusses the Small Cell Facilities Deployment Act and its impact on townships.
The Small Cell Facilities Deployment Act allows for the installation of small cell wireless systems in township public rights-of-way. These systems will be installed within rights-of-way by co-locating antennas on existing poles (i.e., power line poles and traffic control devices) or the installation of new poles and specifically designed support structures. The systems are designed to work with many small antennas mounted close to one another, instead of the tall and large cell towers townships have become accustomed to reviewing and approving. Small cell antennas have a range of less than two miles, requiring a lot of them to ensure adequate and effective coverage.
This system will allow expansive use of emerging “5G networks” or “fifth generation” wireless systems. The 5G networks are designed to offer increased capacity, lower latency times, and faster speeds in a world where more and more data is being consumed through smartphones, tablets and wireless devices. 5G networks employ a frequency bandwidth that limits the distance that the towers can be dispersed. This means that wireless providers will need even more antennas.
The Small Cell Facilities Deployment Act removes local regulation and creates a universal process to streamline deployment for wireless service providers. The removal of local oversight is akin to the limitations placed on townships’ oversight of public rights-of-way through the enactment in 2002 of the Metropolitan Extension Telecommunications Rights-Of-Way Oversight Act (“METRO Act”). Many townships are familiar with METRO Act applications seeking permission to install telecommunication wires in the rights-of-way under a uniform permit process. The application, review process, and permitting process will be similar for small wireless facilities.
The passage of the Small Cell Facilities Deployment Act brings with it a complicated regulatory scheme that largely restricts the typical legislative decision-making process provided to local units of government with respect to access to their rights-of-way and exercise of their zoning authority over cell towers and antennas. While planning for 2019, townships should consider the impacts of this Act and its significant provisions.
A small cell wireless facility must meet both of the following: (1) each antenna shall not exceed six cubic feet, and (2) all related wireless equipment shall not exceed 25 cubic feet. For purposes of illustration, a small chest freezer at the local home improvement store is typically six to seven cubic feet. The largest model that the home improvement store sells probably does not exceed 20 cubic feet, making permitted wireless equipment 5 cubic feet larger than the largest chest freezer. These items are permitted within township rights-of-way under only the conditions imposed by the Act as of March 12, 2019.
The Act creates a second classification of small wireless facilities called a “micro wireless facility.” A “micro wireless facility” cannot be more than “inches” in length, 15 inches in width, and 12 inches in height, and an exterior antenna no more than 11 inches in length. The Act exempts them from any approval, permit, fees or rates. This may even apply to township consent of its own poles, although other Michigan constitutional provisions and state law suggest that must not be a valid interpretation of the Act.
The Act allows expansive use of current public infrastructure for the mounting of small cell facilities. The Act defines “utility” pole to be a “pole or similar structure” that may be or is used for cable or wireline communication service, electric distribution, lighting, traffic control, signage, or similar structure that meets the height requirements of the Act and is designed to support small cell wireless facilities. Sign poles less than 15 feet in height are excluded. In turn, this should prevent standard traffic control signs (such as a stop sign or yield sign) from becoming wireless cell towers.
Townships are prohibited from requiring zoning review and approval of colocation of small cell facilities on existing poles or to construct a new utility pole so long as the activities occur within the rights-of-way of the townships. The activity must also be on a utility pole not taller than 40 feet (unless a township provides otherwise) or extend more than 5 feet above the utility pole. Even though such activities are not subject to zoning review, these activities are still subject to the township’s permit process for use of its rights-of-way. Generally, the installation of small cell facilities outside the rights-of-way are subject to zoning regulation.
The Act creates two complicated layers for small cell facility approvals:
1. Section 15 of the Act addresses the application process for allowing a small cell facility within the rights-of-way.
2. Section 17 of the Act addresses the application process for zoning review and approval of those small cell facilities that are not exempt from zoning.
In instances where colocation or installation occurs within the rights-of-way, a township must approve an application for collocation of a small cell facility within 60 days and an application for a new pole not exceeding 40 feet within 90 days. If the township does not meet the timelines, the wireless provider could receive automatic approval. Two 15-day extensions are available to a township if an application from another wireless provider was received within one week and if the township gives notice and reason for such extension. The grant or denial of zoning approval must occur within 90 days (not 60 days) for an application to modify a wireless support structure or installation of a small cell facility and 150 days (not 90 days) after an application for a new wireless support structure. The parties may mutually agree to extend the time period between the applicant and authority.
The Act does toll the timelines for incomplete applications. If the application is one to install a facility or utility pole within the rights-of-way, a township must notify the applicant within 25 days after receiving an application whether it is incomplete, identifying the missing document or information. The township’s notice would stop the time period running for approval until the applicant made a supplemental submission. Any additional notices of incomplete information must be provided within 10 days thereafter, and cannot raise new issues from the original notice. Townships must quickly review the application and correctly identify all missing information.
Unlike the 25 days to provide notice of whether an application is complete for installation in a right-of-way, a township must notify the applicant within 30 days after receiving an application for zoning review and approval whether the application is complete. A similar tolling period and notice process applies.
A wireless provider may file a “consolidated application” and receive approval for the issuance of permits allowing collocation of up to 20 small cell facilities within a township’s rights-of-way. The consolidated application process does not appear available for zoning review and approval requests, but there is no reason that a township could not handle zoning review in the same manner. The township’s largest concern will be that the time to review a single application applies to review of a consolidated application. Even so, the wireless provider must ensure the consolidated application covers substantially similar equipment and be placed on similar types of utility poles or wireless support structures. A township may deny one or more antenna locations within a consolidated application, while approving those antennas that satisfy the Act.
Rates are permitted as a “recurring charge.” A township can charge a wireless provider no more than $20.00 annually for locating a facility within the rights-of-way. Except, if a utility pole or support structure was erected by or on behalf of a wireless provider after March 12, 2019 (the effective date), the township may charge up to $125.00 annually. Every five years, the maximum rates are increased by 10%. Any rates established by a township prior to March 12, 2019 must be modified within 90 days thereafter, except the Act appears to provide an exclusion for agreements or ordinances that address utility poles designed to support small cell facilities or small cell collocations that existed prior to the effective date. For those townships that own poles, the Act allows townships to charge an added rate not to exceed $30.00 per a year per township-owned pole.
Fees are a “nonrecurring charge for services.” This refers to applicable permit fees that are authorized under the Act. An application fee for a permit to collocate a small cell facility within a right-of-way is $200.00. An application fee for small cell facility and a new pole is $300.00. No permit is required to replace a small cell facility with a facility that is not larger or heavier than a permitted facility, routine maintenance of a permitted facility, utility pole, or wireless support structure, or installation, operation, or replacement of micro wireless facilities. The Act allows a township to charge higher fees for zoning review and approval. Permit fees for zoning review and approval shall not exceed $500.00 for a new small cell wireless facility or modification to a facility, and $1,000.00 for a new wireless support structure or modification to such a structure.
A township can adopt written, objective requirements for reasonable, technically feasible, nondiscriminatory, and technologically neutral design or concealment measures in a historic district, downtown district, or residential zoning district. The requirements must be reasonable and feasible to the extent they would not prohibit a wireless provider’s technology. The concealment or design measures would not be considered part of the small cell wireless facility for purposes of determining the six cubic feet discussed above. These zoning district specific requirements should be instituted through a proper zoning amendment.
A township may require a wireless provider to repair all damage to rights-of-way directly caused by the activities of the provider. If the wireless provider failed to make the repairs required by the township within 60 days after written notice, the township could make the repairs and charge the wireless provider the reasonable, documented cost of repairs.
In the morass of complex application timelines, tolling periods, and layered permit fees and rates, the Act generally describes three clear benefits to townships.
1. The Act allows a township to require applicants to defend, indemnify and hold harmless the township against any claims resulting from the applicants’ installation and operation of facilities, structures and poles.
2. A township can also require to be named an additional insured on the applicant’s insurance policy..
3. The Act further provides that a township can establish bonding requirements so long as the bond serves the purpose of protecting against proliferation of abandoned facilities, repair to the rights-of-way, or to recoup rates that have not been paid in more than 12 months.
These are reasonable conditions to impose given the number of new poles and work that may occur within the rights-of-way in the coming years. Certainly, there may be some user conflict within the rights-of-way, impacts to traffic safety, and damage to the rights-of-way. These requirements will limit township liability.
The Act itself provides a list of reasons that a township could deny an application for a small cell wireless colocation or installation of a utility pole that meets the height requirements within the rights-of-way. Those specified reasons are as follows:
1. Materially interfere with the following:
i. Safe operation of traffic control equipment;
ii. Sight lines for transportation or pedestrians;
iii. Access required by the Americans with Disabilities Act;
iv. Maintenance or unobstructed use of public utility infrastructure;
v. Maintenance or use of drainage infrastructure.
2. Locate the facility within an unreasonable distance from a drain;
3. Fail to comply with the following:
i. Reasonable, nondiscriminatory spacing requirements;
ii. Applicable codes;
iii. Underground or buried cable and utility facilities requirements;
iv. Reasonable stealth or concealment criteria.
If an application is denied, the tTownship must explain the reasons for the denial and cite any specific applicable code provisions that form the basis of the denial.
The Act excludes from its scope the installation and placement of “wireline backhaul facilities.” These facilities are the wire or fiber-optic cable necessary to transfer the data sent and received by small wireless facilities. This should require the backhaul network to require approval under the METRO Act.
Much discussion surrounding the Act’s passage focuses on 5G deployment and cell providers, such as Verizon and AT&T. But, if it is any consolation for the sweeping regulations, the expansive definitions within the Act should allow Michigan’s automakers to deploy wireless facilities that will support smart cars. Expansive rights-of-way exist adjacent to expressways and within urban centers that could easily be deployed for the operation and safety of smart cars. This could advance autonomous cars and also provide implementation of safety technology to limit traffic incidents. Although if automakers are not prepared to start deploying such infrastructure or use similar networks created by current wireless cell providers, future conflicts over rights-of-way space may become problematic. Given Michigan’s long-held relationship with the automobile, there could be significant economic benefit in allowing local automakers regulatory freedom to advance smart car technology. Only time will tell.
– Christopher Patterson
Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
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