The prospect of having a new cell tower built in your town can stir a lot of emotions. For those who wish to avoid the construction of new towers, the Federal Telecommunications Act of 1966 (the “TCA”) presents many challenges because it can be difficult for a municipality to deny an application to construct a tower without violating that statute. A recent case out of the First Circuit Court of Appeals, however, clarified that the TCA preserves local decision-making processes, so long as consideration of an application is not delayed unreasonably.
In Global Tower Assets v. Town of Rome, Maine, the First Circuit held that cell tower applicants could only seek judicial relief from a permit denial after exhausting any available municipal appeals process. The case involved a planning board denial of an application to construct a cell tower. Under the ordinance in question, the local board of appeals had jurisdiction to hear an appeal of the decision. Rather than pursue recourse through the board of appeals, the applicants opted to file a lawsuit in the United States District Court. In the suit, the applicants claimed that the denial of their permit application violated the TCA. The lawsuit was dismissed because the applicants had failed to pursue action through the municipal board of appeals before filing a lawsuit.
On appeal, the First Circuit held that a disgruntled applicant could only pursue a claim in court based on a denial of a permit application after the applicant obtained a final decision from the municipality. A decision is only “final,” the court ruled, after the full process established by the municipality is complete. So, for example, where an ordinance provides that an initial decision by a planning board is subject to review by a board of appeals, an applicant cannot seek relief from the courts unless and until the board of appeals has been given an opportunity to be heard on the matter.
Although the Town of Rome decision preserved local authority in this manner, it also made clear that there are limits on a municipality’s right to insist on completion of its decision-making process. An applicant cannot pursue relief in court from a non-final denial of an application before the local process is complete, but it can bring a claim in court before the local process is complete if the process has unreasonably delayed final action on an application. The TCA presumptively gives municipalities 150 days (unless the parties agree to an extension) to reach a final decision on an application to construct a cell tower. Although this presumption might be overcome, a failure to reach a final decision within the presumptive period would provide an applicant a basis to file a lawsuit based on unreasonable delay, even if a municipal appeal were still available.
The Town of Rome decision is binding in Federal courts in Maine, and one might expect that a Maine state court would follow the First Circuit’s interpretation of federal law. What this means for municipal governments in Maine is that their local authority has been preserved in an important way, but they must act vigilantly to ensure that they exercise that authority in a manner that avoids what would be considered unreasonable delay under the TCA.
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