Upgrades to Wireless Infrastructure

Paul Sanderson

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

The internet is important. As the National Broadband Plan (www.broadband.gov) emphasizes, the deployment of improved infrastructure means advances in the areas of health care, economic development and jobs, education, energy and the environment, governmental performance, civic engagement and public safety for all of our citizens. Thus, there is a national policy implemented through the Federal Communications Commission and other agencies to make it easier to attach new equipment to utility poles, lower the cost of “making the poles ready” for these attachments, reducing the time it takes to review and approve the installation and modification of wireless equipment, and improve policies and procedures to allow the entry of this equipment into our public rights of way.

New Hampshire is also taking steps to implement the goals of this national policy. In the recent legislative session, the New Hampshire General Court passed and the Governor signed SB 101, Chapter 267, which makes changes as to how municipal officials and local land use boards review proposals to collocate and modify “personal wireless facilities.” The new law was effective on September 22, 2013. Before describing the changes to the process of review and approval, it is important to define what types of infrastructure projects are involved.

The changes deal with proposals for “collocation or modification of a personal wireless service facility.” These terms are carefully defined in new RSA 12-K:2 as follows:

X. “Collocation’’ means the placement or installation of new PWSFs on existing towers or mounts, including electrical transmission towers and water towers, as well as existing buildings and other structures capable of structurally supporting the attachment of PWSFs in compliance with applicable codes. “Collocation’’ does not include a “substantial modification.’’   

XVIII. “Modification’’ means the replacement or alteration of an existing PWSF within a previously approved equipment compound or upon a previously approved mount. Routine maintenance of an approved PWSF shall not be considered a modification.

XX. “Mount’’ means the structure or surface upon which antennas are mounted and includes roof-mounted, side-mounted, ground-mounted, and structure-mounted antennas on an existing building, as well as an electrical transmission tower and water tower, and excluding utility poles.”

XXV. “Substantial modification’’ means the mounting of a proposed PWSF on a tower or mount which, as a result of single or successive modification applications:

(a) Increases or results in the increase of the permitted vertical height of a tower, or the existing vertical height of a mount, by either more than 10 percent or the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; or

(b) Involves adding an appurtenance to the body of a tower or mount that protrudes horizontally from the edge of the tower or mount more than 20 feet, or more than the width of the tower or mount at the level of the appurtenance, whichever is greater, except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower or mount via cable; or

(c) Increases or results in the increase of the permitted square footage of the existing equipment compound by more than 2,500 square feet; or    

(d) Adds to or modifies a camouflaged PWSF in a way that would defeat the effect of the camouflage.

The new law also carefully defines the types of projects that are not covered by the new procedures:     

II. Notwithstanding the limitations in paragraph I, nothing in this chapter shall be construed to:

(a) Limit or preempt the scope of an authority’s review of zoning, land use, or permit applications for the siting of new towers or for substantial modifications to existing towers, mounts, or PWSFs.

(b) Prevent a municipality from exercising its general zoning and building code enforcement powers pursuant to RSA 672 through RSA 677 and as set forth in this chapter.

The new procedures are set forth in new statutory sections, RSA 12-K:10 and :11. An “applicant,” meaning either a wireless carrier or a person engaged in the business of providing infrastructure required for a PWSF, submits an application to an “authority” for “collocation or modification.” For municipalities, this means a building inspector, or a code official, or a zoning compliance officer, or the board of selectmen. Each municipality should consider whether it has adopted a “local enforcement process for the enforcement of the state building code” in accordance with RSA 674:51 in order to determine which official or board should receive the information.

Once received, there is a very short time frame given for municipal review. Specifically the process allows:

1. A period of 15 days from receipt to determine whether or not the application is complete, and to provide written notice to the applicant of the specific deficiencies in the application.

2. The applicant has 15 days from receipt of the notice of deficiency to cure by providing the requested information.

3. If the application is corrected within that time frame (up to 30 days from receipt of the application), the application must be processed to a decision within 45 days of the original receipt. If no decision by municipal officials is issued at that time, the application is deemed approved.

4. The processing period of 45 days is only extended if it is the applicant who has failed to cure the deficiencies in the application documents.

The scope of the local review is limited to “conformance with applicable building permit requirements.” A “building permit” is defined as the document issued pursuant to RSA 676 “...solely to insure that the work to be performed by the applicant satisfies the applicable building code.” The State Building Code is in force in all municipalities. See RSA 155-A: 2.

There are practical difficulties which will arise under this scheme, and there are no clear answers as yet to guide resolution of these issues:

A. Some municipalities issue building permits, while others have not adopted this process in accordance with RSA 674:51. If no local enforcement process has been adopted, the state building code is enforced in accordance with RSA 155-A: 7, meaning that the municipality may in writing request review by the State Fire Marshal’s office. There is no provision in RSA 12-K to grant an extension of time for this review to occur.

B. The code review will involve issues of how the new equipment will affect the structural integrity of the existing tower or the mounting locations of other structures, and how the new equipment will be connected to existing electrical power and backup power generation equipment. The local building official may not be familiar with how this equipment affects these issues, and may seek the advice of outside experts to review the application.  There is no provision in RSA 12-K to grant an extension of time for this review to occur.

C. The review of building official determinations under the Code is normally assigned to the local Building Code Board of Appeals by RSA 674:34. However, under new RSA 12-K:10, V, “an action for review” is only available in the Superior Court. There is no appeal period provided in the statute, and the standard of review for the court appears to be “conformance with applicable building permit requirements.” Thus, it appears that no local review in the Building Code Board of Appeals is permitted, and it is unknown how many days a “person aggrieved” by a local decision on such an application has to take action in the Superior Court. This would include the applicant as well as any other person who may show a legally protected interest in the decision.

The role of local land use boards is limited by the new scheme. So long as the application meets the definition of “collocation” and the equipment to be added does not constitute a “substantial modification,” there are limitations, and no municipal process may:

1. Review for compliance with local zoning requirements, or local land use requirements including design or placement requirements.

2. Convene a public hearing to review the application.    

3. Impose any condition upon the application prohibited by RSA 12-K:11.

The limitations imposed by new RSA 12-K:11 are extensive, and contain 14 specific actions which may not be taken. These specific limits are broad in scope and should be carefully reviewed by local building and code officials to assure that they do not take these actions or impose any of these conditions as part of the local review process.

Finally, changes have been made to the statutes authorizing site plan reviews by planning boards or considerations of special exceptions or variances by zoning boards of adjustment. If the application meets the definition of a collocation or is not a substantial modification, the municipality may not place the issue before the planning board to conduct a site plan review, and may not require a special exception or variance to be obtained from the zoning board of adjustment. There will be practical difficulties that arise from these provisions:

A. New equipment proposed for existing towers or mounts may well be higher or wider or visually different than existing equipment. So long as the changes are not “substantial” as defined in the new law, and they meet the requirements of the building code, they must be approved without local land use board review even if they appear to violate conditions previously imposed by local land use boards when the tower or mount was first reviewed.

B. Ground based equipment, including the equipment shelter and backup power generation equipment may be larger, in a different configuration, or use different fuel sources than the original configuration, and must be approved without local land use board review even if they appear to violate conditions previously imposed by local land use boards when the tower or mount was first reviewed.

Given the scope of these changes, we recommend that local building code officials, governing bodies and local land use boards review the text of the new law and any procedures they may have adopted to deal with telecommunications applications. It is possible that existing applications will have to be changed, time frames for review will change, existing fee structures will have to be changed, and land use board members will have to be trained about why they will no longer be involved in the review of these matters. The municipal attorney should be involved in the review as well to assure that any proposed changes comply with the new statutory requirements, and also to assure that the local building official has a person to call to deal with the practical difficulties that surely will arise in the administration of these new provisions.

Paul Sanderson is Staff Attorney for the New Hampshire Municipal Association.  He may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.