Update on Wireless Telecommunications Facilities Legislation

Working through all of the laws and regulations governing the placement of telecommunications facilities, namely cell towers, can be a tricky process. Regulations governing the placement of cell towers include local ordinances, the State Zoning Enabling Act, the Federal Telecommunications Act, and numerous state and federal appellate court decisions. In 2012, the Michigan Legislature enacted Public Act 143 of 2012, which attempted to simplify some of these regulations in two primary ways. First, Pubic Act 143 amended the timeline and procedures for reviewing a cell tower application. Second, the Act allowed for the placement of certain antennae without any local approval.

With respect to procedures, for some time the Federal Telecommunications Act has required that a municipality act on a request for a cell tower within a “reasonable time.” Public Act 143 put teeth into this requirement by specifying several requirements regarding the processing of a cell tower application. Specifically, the state-mandated procedures are now as follows:

1. The application will be deemed administratively complete if the municipality does not notify the applicant that its application is incomplete within 14 days of receiving the application.
2. The 14-day period is tolled if, before the 14-day period expires, the municipality tells the applicant that its application is administratively incomplete (specifying the information needed to make it complete), or notifies the applicant that the fee required to accompany the application has not yet been paid. The tolling continues until the applicant submits the specified information or fees due.
3. Municipalities may charge a fee with an application as long as it does not exceed the municipality’s actual, reasonable costs to process the application or $1,000, whichever is less.
4. Within 60 days after the application is deemed administratively complete, the municipality must approve or deny the application. If it fails to approve or deny the application within that 60-day period, the application is deemed approved. The period is 90 days if special land use approval is required.

In addition to the above procedures, Public Act 143 provides that wireless communications equipment that meets certain conditions is a permitted use of property and is not subject to special land use or other approval by the local municipality. The four requirements for wireless communications equipment not subject to municipal approval are as follows:

1. The wireless communications equipment will be collocated on an existing wireless communications support structure or in an existing equipment compound.
2. The existing wireless communications support structure or existing equipment compound is in compliance with the municipality’s zoning ordinance or was approved by the appropriate zoning body or official for the municipality.
3. The proposed collocation will not do any of the following:
   1. Increase the overall height of the wireless communications support structure by more than 20 feet or 10% of its original height, whichever is greater.
   2. Increase the width of the wireless communications support structure by more than the minimum necessary to permit collocation.
   3. Increase the area of the existing equipment compound to greater than 2,500 square feet.
4. The proposed collocation complies with the terms and conditions of any previous
   final approval of the wireless communications support structure or equipment
   compound by the appropriate zoning body or official of the municipality.

Since the above procedural and substantive changes are mandated by state law, it may be necessary for local municipalities to amend their zoning ordinances to bring them into compliance with Public Act 143. In the meantime, it is important if you receive a cell tower or antenna request that your municipality complies with the new requirements of Public Act 143 in addition to the plethora of regulations in federal law, case law, and your own local ordinances.