Are Zoning Renewals on Your List?
Md7 Land Use Counsel
Have you made your list and checked it twice? Do you know what approvals you will need to get your site on air? What about to keep your site on air? Have you looked at your CUPs (Conditional Use Permits) and SUPs (Special Use Permits)? Do you know if and/or when they expire? Do you know how and when to renew these permits so they don’t lapse?
Many CUPs and SUPs have a termination date. Usually CUPs and SUPs permits are good for a period of 5 or 10 years. Most municipalities will agree to an extension, usually an additional five year term, if the extension is requested prior to the expiration of the permit. If an extension is not requested and not granted, the permit expires and the carrier’s equipment (antennas, mounts, cables, cable trays, base station, cabinets, and even tower) become unpermitted equipment on the site and subject to removal. This unpermitted equipment can be removed by the municipality without notice and at the carrier’s expense. The carrier may also incur fines for each day the unpermitted equipment remains on site. Many jurisdictions will not issue new permits to carriers with permit violations such as an unpermitted wireless facility or unpermitted equipment on a site. If you don’t timely renew, you can be back at square one with a gap in your network and starting the CUP or SUP process over. Plus, when you go to apply for the needed CUP or SUP, you will be trying to get that approval with an unpermitted equipment issue, fines, penalties, and asking an angry jurisdiction to issue the permit. It’s not a pretty picture.
Judicial relief is not readily available either. Take for example the American Tower Corporation vs. City of San Diego case. In that case, American Tower asked the City of San Diego to renew CUPs for 3 of its towers upon the expiration of the CUPs. CUPs had regularly been renewed by the City at other American Tower sites and recent applications by co-locators to install equipment on these sites had been approved. However, the City of San Diego required American Tower to start over and submit new applications for each site. New public hearings were also required. The City’s planning staff recommended denial of the new CUPs because the aesthetics of the towers did not meet the requirements of the City’s Land Development Code. At the hearings, the CUPs were denied by the City. Years of legal battles ensued. Agreeing with the denial of the CUPs, the final court decision said that American Tower should have known their request for new CUPs could be denied because the original CUP stated clearly that all activity must cease and the sites must be returned to their original condition after ten years if new CUP applications were not timely submitted and approved. Past renewals of CUPs and recent approvals of co-locators’ applications to install equipment on the sites did not give American Tower a reasonable expectation of renewals or approval of their CUPs, according to the Court, when the language of the CUP gave a termination date for the permit.
Unfortunately, there are many of these cases in California and across the U.S. Check your CUPs and SUPs. Read them carefully. When do they expire? Do not assume, even if local Code allows for renewal of your CUP or SUP that these permits will be renewed. Start the process early, at least 18 months in advance of the permit expiration date, by entering into a dialogue with local planning staff. Know what issues you will need to address to get your CUP or SUP renewed. If you have used all your renewal terms or, if the local jurisdiction has indicated they will not renew the permit, you will need to get new CUPs or SUPs for the site. Start by finding out whether the CUP or SUP process and Code requirements have changed. Then begin the approval process while the existing CUP or SUP is in effect to avoid the unpermitted equipment issues, the removal of equipment issues, and any gaps in coverage.
Time to start making your list.
As a service provider to the wireless industry, we would like to share our insights, observations, and analysis about what is happening from time to time.