New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

ZBA decision to grant rehearing may violate FCC “Shot Clock” for cell tower application if case is prolonged past 150 days

New Cingular Wireless PCS, LLC v. Stoddard
U.S. District Court, D.N.H., No. 11-CV-388-JL, 2/16/2012

The following summary is based on an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases apply federal law and sometimes New Hampshire law. Their interpretations of New Hampshire law are not binding on the New Hampshire Supreme Court.

The Telecommunications Act of 1996 (TCA) is intended to facilitate the national growth of the wireless telecommunications industry, including a mandate to municipalities to accommodate construction of telecommunications towers. 47 U.S.C. 332 © (7). Among other restrictions, the TCA provides that land use boards must act on applications for cell towers within "a reasonable period after the request is duly filed." In 2009 the Federal Communications Commission (FCC) issued an order, known as the "Shot Clock Ruling," which creates presumptions that (a) 90 days is a reasonable period to make a decision on an application for a new antenna on an existing facility (known as "co-location"), and (b) 150 days is reasonable for construction of a new wireless tower. If those deadlines are not met, applicants may sue in federal or state courts, pursuant to 47 U.S.C. § 332©(7)(B)(v), and the court will presume that the delay is unreasonable unless the municipality can prove otherwise.

Cingular applied to the Stoddard Zoning Board of Adjustment for approval of a new cell tower and agreed to extend the 150-day period by three months. After six public hearings and submission of voluminous evidence, the ZBA granted conditional approval, by a 3-2 vote, six days before expiration of the deadline. During the next 30 days opponents filed motions for rehearing under RSA 677:2. Several weeks later the ZBA met to consider the motions. One board member speculated that the rehearing process might "take 20 or 30 meetings" and suggested that the ZBA retain a new consultant. The ZBA voted to grant the rehearing, whereupon three members and all the alternates resigned. The town administrator issued a notice that all ZBA meetings were cancelled until the selectmen can appoint replacements. Cingular filed suit in federal court for unreasonable delay.

The Town moved to dismiss, arguing that the ZBA acted within a reasonable time and that the "post-decision" rehearing is irrelevant under the Shot Clock Ruling. The court ruled that the Shot Clock Ruling calls for the land use board to “resolve” the application within the deadline, and an application is not resolved when a rehearing is granted. Noting that RSA 677 imposes no time limits on the rehearing process, the court found that "[t]o conclude that a rehearing under New Hampshire law is exempt from the Shot Clock Ruling’s deadlines would encourage great mischief." There is a presumption of unreasonable delay if an application extends beyond 150 days because of a rehearing.

The Town also argued, alternatively, that the rehearing process overcomes the presumption of unreasonableness because it is not intended to obstruct and impede, but to allow the ZBA to correct its errors and thereby prevent unnecessary appeals. The court acknowledged the potential value of rehearings, but pointed to the allegations of the complaint suggesting the ZBA’s grant of rehearing was intended to delay the application. The court denied the motion to dismiss, thereby allowing the case to proceed on the issue of unreasonable delay.

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