By Cynthia Hanson
Land Use Counsel
On October 9, 2015, California Governor Jerry Brown signed Assembly Bill 57 (“AB 57”) into law. As you may recall from the July edition of the Md7 Communique, AB 57 will put teeth into the FCC’s Shot Clock Order of 2009. Beginning January 1, 2016, if a city or county does not timely approve or disapprove a wireless facility siting application, the application will be deemed approved by operation of law. The new law will not apply to projects located on fire department facilities or those eligible facility requests covered by Section 6409.
As to be expected, AB 57 was supported by the wireless industry, with significant opposition from various municipalities, local agencies, and related advocacy groups. The full text of the new law can be found here.
How will AB 57 work? For modifications and collocations that do not qualify as an “eligible facilities request,” cities and counties must approve or deny a wireless siting application within 90 days of submittal. For new builds, the city or county will have 150 days. Upon the expiration of the applicable review time period or “shot clock” and, so long as you provided all required public notices of your application, you then must notify the city or county in writing that their review period has passed and your proposed modification or new build is “deemed approved.” After that, you pull your permit and begin your build. To stop your build or otherwise challenge the “deemed approved” status, the city or county will need to file a lawsuit within 30 days from the date of your letter notifying them of the deemed approved status.
There are two ways these review timeframes can be extended. First, if you do not submit a complete application package and the city or county timely requests the missing information, the review timeframe will be extended by the amount of time it takes you to get the requested information to the city or county. The second way the review timeframe can be extended is if you enter into a written tolling agreement with the city or county to extend the review period.
Eligible facility requests were specifically carved out from AB 57 and remain subject to the 2015 FCC shot clock of 60 days for review of minor modifications to existing sites. For sites not in the ROW, an eligible facility is defined as a modification that does not result in an increase of more than 10% in height or the height of an additional antenna array plus 20 feet, a modification that does not protrude from the edge of the tower by more than 20 feet, a modification that does not involve the installation of more than 4 new equipment cabinets at an existing site or a modification that does not involve excavation or deployment outside the current leased/owned area. To read more about the approval process for eligible facility requests and qualifying sites within the ROW, click here.
Many cities and counties will revise their codes and procedures to comply with this new law, although it remains to be seen which jurisdictions will do so before the New Year. Some cities and counties may choose to ignore the requirements of AB 57 and challenge the law in Court where these municipalities will hope to win relief from what they view as an illegal power grab.
As with any new law, you can expect a period of confusion about how to implement the new requirements and even different treatment among jurisdictions. It will be important to do your research and know the applicable requirements before submitting your siting application so you can make the best use of this new law.
In summary, you must do the following to obtain the deemed approved relief provided by AB 57:
- Submit a complete application package.
- Comply with all public notice requirements.
- Wait the applicable review time period – 90 or 150 days, if no extensions are agreed to – for approval or denial.
- If no response is received, notify the city or county in writing that the review time period has passed and your application is now deemed approved.
- Pull your building permit and proceed to build.
To make it easier to enforce a deemed approved resolution of your siting application, keep copies and get acknowledgement, if possible, from the city or county of your submittal date, all public notices, and of your deemed approved letter.
As cities and counties adjust their processes and procedures to reflect the new “normal” of this law, let’s hope that this law accomplishes its underlying purpose of truly accelerating wireless siting approvals in California.