FCC Issues Declaratory Ruling Wireless Facility Siting Applications

Posted January 4, 2010 by OMWHealthLaw
Categories: Telecommunications

In November, the FCC issued a Declaratory Ruling (the “Ruling”) related to municipal zoning approvals of wireless towers and collocations.  The Ruling has three main components:

  1. A municipality has 90 days for the review of co-location applications;
  2. A municipality has 150 days for the review of siting applications other than collocations (however Washington law requires siting applications to be reviewed in 120 days); and
  3. A municipality may not deny a personal wireless service facility siting application because services are available from another provider.


Zoning approval of wireless towers, collocations and antennas is generally required at a municipal level.  Municipalities are required to act “within a reasonable period of time.”  This Ruling defines what a reasonable period of time is, and the failure to act within those timeframes presumptively constitutes a failure to act.  The Ruling does not prevent local governments from denying applications, but merely requires that decisions are made within the specified timeframes and that the denial is not based on the availability of service from another carrier.  If the municipality fails to act within the above timeframes then wireless service providers may seek judicial redress within thirty days after the deadline.  The FCC notes however, that the failure of a local government to act within the timeframe does not, in and of itself, entitle the siting applicant to an injunction granting the application. 

In Washington, local governments are required to act within 120 days of receipt of a complete application (RCW 35.99.030, RCW 36.70B.080).  Additionally, local governments must notify the applicant within 28 days of the receipt of the application if the application is complete or if the application is incomplete and requires additional items (RCW 36.70B.070).  The Ruling acknowledges that incomplete applications may be submitted, and allows that the timeframes do not include the time the applicants take to respond to the requests for additional information.  Local governments will have to follow the 90 day co-location time limit even though the state law does not differentiate. 

The creation of these timeframes does not prevent the wireless provider and the municipality from mutually agreeing to an extension.  The 30 day time period in which a wireless provider may file is tolled by this mutual consent.  In Washington, the wireless provider must wait until the lapse of the federal timelines before bringing a suit for failure to act (but may pursue any state remedies upon the lapse of the state timeframe).

Availability of Service by Another Provider

The Ruling declares that a local government which denies an application for personal wireless service facilities siting solely because one or more carriers are in the geographic vicinity is effectively prohibiting the provision of personal wireless services in violation of the Telecommunications Act’s pro-competitive purpose.  However, the Ruling specifically notes that “a decision to deny a personal wireless service facility siting application that is based on the availability of adequate collocation opportunities is not one based solely on the presence of other carriers,” and therefore is not affected by the Ruling.  In Washington, local governments should be aware of the 9th Circuit’s decision in T-Mobile USA, Inc. v. City of Anacortes when denying an application based on the availability of feasible site alternatives. 

To view the FCC press release click here.  If you have questions regarding this Ruling or matters relating to wireless service provider applications please contact Elana Zana.

LUPA – Failure to Timely Appeal Permits Not Subject to Public Notice

Posted December 21, 2009 by OMW Municipal Law
Categories: LUPA, Washington Court of Appeals

LAND USE  – FAILURE TO TIMELY APPEAL PERMITS NOT SUBJECT TO PUBLIC NOTICE.  Courts cannot entertain appeals of land use decisions unless the appellant has exhausted all administrative appeals first.  Exhaustion includes the timely filing of administrative appeals, even if the appellant is not required to receive notice of the land use decision.  Nickum v. Bainbridge Island, ___ Wn. App. _____, Slip Op. 38217-2.

 I.          Facts.  Verizon acquired a building permit from Bainbridge Island to construct an equipment shed and utility pole for some communications antenna.  Bainbridge Island issued a building permit and determined the project to be exempt from the State Environmental Policy Act (“SEPA”) on September 14, 2007.  The Nickums owned property adjacent to the project.  They received no notice of the building permit or SEPA exemption decisions and no notice was required.  The Nickums filed an appeal of the decisions to the Bainbridge Island Hearing Examiner on November 8, 2007, about nine days after they first learned of the permits.  The Hearing Examiner dismissed the appeal as untimely, noting that Bainbridge Island regulations impose a 14 day appeal deadline from the date of permit issuance.  The Nickums filed a judicial appeal under the Land Use Petition Act , Chapter 36.70C RCW (“LUPA”), 19 days after issuance of the Examiner’s decision. 

 II.        Applicable Law and Analysis.  Under the doctrine of exhaustion of administrative remedies, LUPA appellants must exhaust all available administrative appeals prior to seeking judicial relief.  This requirement includes complying with administrative time-of-filing requirements.  The Nickums argued that it was not practically possible for them to timely file an administrative appeal of those decisions because they didn’t know they had been issued.  The Court of Appeals determined that it could not toll (extend) the administrative appeals period because Bainbridge Island had not necessitated an extension due to bad faith, deception or false assurances. 

 The Nickums asserted that requiring a timely appeal for permits without notice violated their due process rights (constitutional fairness).  The Court of Appeals determined that they could not consider this argument because the Nickums’ LUPA action was filed too late and LUPA is the judicial mechanism to consider due process claims.   LUPA requires an appeal to be filed within 21 days of the issuance of a final decision.  The Court of Appeals determined that the Hearing Examiner decision was not the final decision because it was based upon an untimely administrative appeal.  Consequently the final decision was the issuance of the building permit and SEPA exemption decision, which were issued much more than 21 days prior to the LUPA appeal. 

 III.       Conclusion.   Even when aggrieved parties receive no notice of a decision, they are still expected under this decision to file timely administrative and judicial appeals if they want to be heard.  The greatest impact will be with building permit decisions, where notice is rarely required for surrounding property owners.

Reconsideration Does Toll LUPA’s 21 Day Appeal Period

Posted December 16, 2009 by Greg Rubstello
Categories: LUPA, Washington Court of Appeals

LAND USE PETITION ACT (LUPA)—“FINAL DETERMINATION”—MOTION FOR RECONSIDERATION.  A motion for reconsideration of a land use decision made by a jurisdiction’s body or officer with the highest level of authority does not toll LUPA’s strict 21-day superior court appeal filing deadline. RCW 36.70C.040(2), (3).  Mellish v Frog Mountain Pet Care, et al, Slip Op. No. 37583-4-II (December 15, 2009).

I.          Issue and Facts.   In Mellish, the court considered whether a county hearing examiner’s decision approving a conditional use permit and minor variance, required for a proposed remodel and expansion of a dog and cat boarding facility, was a “final determination” under LUPA’s definition of a “land use decision.” If so, the decision triggered the running of LUPA’s 21-day appeal period, even though a motion for reconsideration was pending. Mellish, a project opponent, filed a motion for reconsideration. The hearing examiner issued a decision denying the motion for reconsideration and the county issued a permit to Frog Mountain. Mellish then filed a LUPA petition within 21 days of the denial of the motion for reconsideration, but more than 21 days after the hearing examiner’s decision approving the permit and variance. Mellish and the County argued that the 21-day appeal period did not begin to run until the decision denying the motion for reconsideration was made by the hearing examiner. The superior court agreed with Mellish that the motion for reconsideration tolled the 21-day LUPA appeal period and then reversed the examiner’s decision on the merits. Frog Mountain appealed on the basis that Mellish did not file his petition within 21 days of the hearing examiner’s decision. Division II of the Court of Appeals agreed with Frog Mountain and reversed the superior court with instructions that the superior court dismiss the LUPA appeal with prejudice.

II.        Applicable Law and Analysis.  The appeals court first determined that the hearing examiner issued a final decision under former RCW 36.70C.020(1)(a) when he approved the conditional use permit and variance and that an appeal was required within 21 days. RCW 36.70C.040(2). Since the hearing examiner was the county’s highest level of decision making authority on the conditional use permit and variance, the decision was a final determination. The county was not free to define a “final determination” in its local code  because LUPA requires uniformity in expedited appeal procedures. RCW 36.70C.010 and Samuel’s Furniture, Inc. v. Dep’t of Ecology, 147 Wn.2d 440, 452, 54 P.3d 1194 (2002). The appeals court rejected arguments that the motion for reconsideration was itself an appeal to a higher authority and that the decision was not final until the hearing examiner decided the motion to reconsider.

            Having determined the decision of the hearing examiner on the merits of the application to be a final decision, the court of appeals then held that a motion for reconsideration of a LUPA final decision does not toll the filing deadline. Compelling to the court was the absence of any provision in LUPA, as found in other statutes, expressly providing that a reconsideration motion either renders an otherwise final decision non-final or tolls the deadline for filing an appeal. The court pointed to other contexts where the legislature, desiring to alter the effect of unambiguous statutory provisions, such as by tolling a statute of limitations, “has done so expressly.” LUPA contains no similar tolling provision for motions for reconsideration. Finally, the appeals court reviewed the doctrine of equitable tolling and determined that none of the predicates for equitable tolling were demonstrated. The predicates for equitable tolling are bad faith, deception, or false assurances by the other party and the exercise of diligence by the party asserting that equitable tolling should apply.

III.       Conclusion.  This decision addresses an issue of first impression for the appellate courts of this state. Although the decision is deeply-rooted in statutory language and case law expressing that LUPA was intended to provide consistency, uniformity and expedited appeal procedures, another division of the court of appeals could decide differently. Cities should exercise caution and consult their city attorney when considering whether or not to adopt code language that allows for reconsideration of a land use decision made by a highest level decision maker, or when determining the effect of such a motion on the running of the 21-day LUPA appeal period if your city’s code already allows for a reconsideration motion. In January of 2010, the State Supreme Court will hear oral argument in the case of Skinner v. Civil Serv. Comm’n of City of Medina, 146 Wn. App. 171, 173, 188 P.3d 550 (2008). The state’s highest court accepted review of an appeal brought by the City of Medina challenging a Division One decision holding that a motion for reconsideration of a civil service commission’s decision denying an appeal of a disciplinary decision tolled the 30-day statute of limitations in RCW 41.12.090. Although a different statutory context, the decision reached by the State Supreme Court in Skinner may provide a clearer picture as to the impact and lasting effect of the decision by Division II in Mellish v. Frog Mountain, et al.

FTC Extends Enforcement Deadline for Red Flags Rule

Posted November 2, 2009 by Kristin Eick
Categories: Red Flags Rule

The FTC has extended the deadline for enforcement of the Red Flags Rule until June 1, 2010, at the request of Congress.  This delay comes on the heels of a U.S. District Court ruling on October 30, 2009, which held that the FTC may not apply the Red Flags Rule to law firms.  The Commission previously delayed enforcement of the Rule until November 1, 2009.  The FTC’s Press Release may be found here.  Other guidance materials may be found on the MRSC and FTC websites and on previous blog postings.

Post v. City of Tacoma – Application of LUPA and Procedural Due Process to Civil Penalties

Posted November 2, 2009 by Kristin Eick
Categories: Civil Penalties, Washington Supreme Court Opinion

In Post, the City of Tacoma imposed successive civil penalties for violations of the building code, without providing an opportunity for administrative review after each penalty was imposed.  In a plurality opinion, the Supreme Court majority held that because there was no opportunity for review after each penalty was assessed, the property owner’s procedural due process rights were violated.  Furthermore, LUPA’s 21-day statute of limitations did not apply to bar the plaintiff’s claims because Tacoma had not created a civil infraction system that provided the same procedural protections as afforded in the judicial system.  Consequently, the civil penalties had to be enforced in courts of limited jurisdiction, an exception to LUPA according to RCW 36.70C.020(2)(c).  Cities should ensure that they provide an opportunity for administrative review after each civil penalty is imposed.  For example, if the building code allows for the building official to impose civil penalties each day a property is in violation of the code, there must be an opportunity for a hearing for each civil penalty assessed.

New Supreme Court Decision Regarding Public Records Act

Posted October 16, 2009 by Angela Belbeck
Categories: Public Records Act

The Washington State Supreme Court issued its decision today in City of Federal Way v. Koenig, __ Wn.2d __ (Oct. 15, 2009), holding that the Public Records Act (chapter 42.56 RCW) does not apply to the judiciary or judicial records.  The court did not find a compelling reason to overturn the case Nast v. Michels, 107 Wn.2d 300 (1986), where the court held the Act does not apply to court files because the judiciary is not included in the Act’s definition of “agency.”  The dissent (authored by Justice Stephens, joined by Chief Justice Alexander) took the position that Nast should be construed narrowly to apply to court case files only, and that the Act should be read broadly to include the judiciary as an “agency.”  Click here to view the case.

Griffin School District & PERC to Review Duty to Negotiate Furlough

Posted October 15, 2009 by Scott Snyder
Categories: Collective Bargaining, PERC

Ogden Murphy Wallace recently filed an amicus brief in conjunction with King County on behalf of the cities of Edmonds and Gig Harbor in the appeal of Griffin School District.  The appeal is from a Hearing Examiner finding that the District committed an unfair labor practice when it implemented furloughs without negotiating the decision to change its hours and days of operation.  The case has major implications for public employers and highlights the conflict between collective bargaining obligations and an entity’s right to determine the method and manner of service delivery.  The case will undoubtedly work its way through the court system over the next few years.  Municipal employers will have to decide whether to bargain furloughs or risk a ULP.  The risk of being wrong could be significant if the decision is upheld—one potential remedy is the payment of back wages for the furlough period.  City councils will be faced with tough decisions, particularly if I-1033 passes.  Many councils balk at cutting services, preferring to reduce staff in general through layoffs and furloughs .  In our current environment, few organizations have “fat” to cut and most are running so lean that it will be difficult to lay off employees without decisions to cut a particular program or service. 

As you approach your budget process, let’s discuss your CBA’s and what strategic and tactical options are open to your organization.  Email Scott Snyder  if you would like a copy of the Griffin School District brief—it highlights the economic dilemma’s faced by governmental entities nationwide.

New First Amendment Ruling from 9th Circuit

Posted October 14, 2009 by Kristin Eick
Categories: 9th Circuit Opinion, First Amendment

The Ninth Circuit published an opinion holding that cities may not enact ordinances prohibiting leafleting on cars parked on city streets.  The Court reasoned that the prevention of litter and the protection of private property are not sufficiently signficant government interests to justify the restriction on speech.  The Court stated that if a vehicle owner does not wish to receive leaflets placed on the windshield, he or she may post a sign akin to a “No Solicitation” sign on the dashboard.

To read this case click here.

Cities Must Comply With Red Flags Rule By November 1st

Posted October 8, 2009 by OMW Municipal Law
Categories: Red Flags Rule

The Federal Trade Commission has issued regulations requiring financial institutions and creditors to develop and implement written identity theft prevention programs by November 1, 2009, under the Fair and Accurate Credit Transaction Act of 2003 (FACTA).  Municipal utilities are subject to these requirements, and the City Councils of all cities that operate utilities must adopt programs that meet the requirements of FACTA. 

Below is a presentation explaining Red Flags rule requirements for municipalities.

 These identity theft prevention programs must provide for the identification, detection, and response to patterns, practices, or specific activities – known as “red flags” – that could indicate identity theft. Read the rest of this post »

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