Town approves resolution opposing state wireless industry ‘gift’ legislation

Town Attorney Doug Napier and Town Manager Joe Waltz explained dynamics of new wireless legislation on the table in the Virginia General Assembly – those dynamics are NOT municipal friendly, they said. Photos/Roger Bianchini

FRONT ROYAL – One would imagine that like every municipality in the Commonwealth of Virginia, the Town of Front Royal Town finds itself in conflict with two Republican State legislators over bills introduced that would remove virtually all municipal control on the location and installation of future wireless communications structures, including replacement technologies.

Following unanimous approval of the addition of the matter to the Monday night, January 22 meeting agenda, council unanimously approved a Resolution opposing both House Bill 1258 and Senate Bill 405 now before the Virginia General Assembly. That resolution of opposition will be sent to state delegates (Republicans Collins, 29th, Webert, 18th, Gilbert, 15th) and senator (Republican Mark Obenshain, 26th) representing the Town of Front Royal; as well as to Virginia Governor Ralph Northam; the Virginia Municipal League; and the bills two sponsors, Delegate Terry G. Kilgore, Republican-1st District, and Senator Ryan T. McDougle, R-4th District.

Mayor Hollis Tharpe thanked the Town’s legal and administrative staffs for quickly bringing the legislation to his attention so that opposition could be voted on and passed on to the appropriate legislative representatives prior to votes on passage of the bills.

Noting that the staff summary of impacts of the legislation had just been passed to council prior to the Monday night meeting, Councilman Jacob Meza asked Town Attorney Doug Napier and Town Manager Joe Waltz to summarize and elaborate on impacts of the legislation on municipalities across the commonwealth. With legislation on the table that would not only strip municipalities of controls on the wireless industry, but set precedents that would lead all other industries to expect similar treatment, the only issue was where to start.

What precedents would be set?
1. For starters according to the town attorney, the assumption of approval is written into the legislation, with a brief and highly technical review period being included that most municipalities would not have the in-house expertise to address without outside contractor help. “The locality must provide guidance on incomplete application within 10 days or application is ‘Deemed Approved’ which takes a legislative decision away from local elected officials.”

2. Then a fee ($500) attached to the application and review process would not cover costs the municipality would incur.

3. The proposed legislation strips local government’s right to approve applications based on local zoning accomplished in the best interest of a community based on feedback from that community’s citizens.

4. And as stated above, legal staff believes treatment of the wireless industry in such a manner would open the floodgate of deregulation of all industries with equipment located within that municipality’s boundaries.
As stated in the staff summary, localities may NOT condition approval on removal of an existing structure; may NOT require co-location of other equipment on the new wireless structure; and may NOT limit the duration of the approval.
The town staff summary observes: “This proposed legislation is not a good idea, among other reasons, because:

•  “Local land use authority ought to rest with locally elected officials who best know their communities and their citizens’ needs.
• “Local zoning takes into consideration that the economic, social, cultural, and other conditions are not one-size fits-all.
• “Local zoning recognizes the importance of citizen input. The bills’ provisions remove the ability of our citizens to have meaningful input into decisions affecting the character of their communities.
• “The proposed bills create a paradigm shift in authority, moving the decision-making process away from the community and its elected officials to FOR-PROFIT companies who care about their bottom line, not about our citizens’ welfare.
• “Specifically, the “Deemed Approved” language strikes down local legislative process. These bills take away the ability of a locality to ask questions of the applicant or negotiate with the industry about a specific location or type of equipment or screening.
• “This is not the process for a typical zoning application and there is no compelling justification for this industry to be treated in a special manner.”
• As for a maximum $500 fee placed on the applicant versus costs incurred by the municipality in reviewing the application, the staff summary states that:
• “The fees will never be in tune with actual costs. A State statute-determined fee does not account for the differences in actual local workloads as well as the costs and availability of professional services costs that occur in different local jurisdictions occasioned by differing applications throughout the Commonwealth.
• “Actual Direct Costs are not typically calculated by localities; this unfunded mandate would place an additional burden on local taxpayers who will end up subsidizing the applicants.
• “The alternative is that the applications will be automatically approved because localities won’t have the resources to review the various projects within the arbitrary deadlines.”
• Where a municipality to reject an application, it must then:
  • Provide a written statement explaining the rejection of the application;
  • Explain any modifications in writing (this may be used by the applicant as evidence that the locality’s disapproval was arbitrary and capricious);
  • Must explain the disapproval by a substantial record of evidence contained in a written record publicly released

These are the criteria the town attorney noted Front Royal, like most Virginia municipalities would not have the in-house expertise to prepare.

As for precedent setting, the staff summary notes that, “These bills would treat the wireless industry differently from all other private profit-making industries, thus leaving localities (and the state) open to charges of discrimination against other industries. The likelihood is high that other industries will expect the same or similar treatment.

Much like what has occurred at the federal level over the past year as governmental regulatory authority has systematically been stripped from a variety of departments this proposed state legislation gives private-sector, for-profit companies the upper hand over Virginia municipalities from the start. The legislation even goes so far as to create new language to accomplish that.

“The locality may not require a special exception, special use permit or variance for ‘Administrative Review-Eligible Projects’ (which is a new term),” town staff notes in parenthesis of the phrase attached to future wireless industry project applications.

Well now our state representatives will know what our town officials think of this legislation, I bet they are wondering what their constituents think as well …

The sponsors of the legislation in the state house and senate are:
Del. Terry G. Kilgore, R-1st District, DelTKilgore@house.virginia.gov Richmond office (804) 698-1001; district office (276) 386-7011
Sen. Ryan T. McDougle, R-4th District, district04@senate.virginia.gov Richmond office (804) 698-7504, district office (804) 730-1026
Front Royal’s State Senator is Mark Obenshain, R-26th District, district26@senate.virginia.gov Richmond office (804) 698-7526, district office (540) 437-1451

Front Royal’s three House delegates are:
C. Todd Gilbert, R-15th District, DelTGilbert@house.virginia.gov Richmond office (804) 698-1015, district office (540) 459-7550
Christopher E. Collins, R-29th District, DelCCollins@house.virginia.gov Richmond office (804) 698-1029, district office (540) 539-1724
Michael Webert, R-18th District, DelMWebert@house.virginia.gov Richmond office (804) 698-1018, district office (540) 999-8218