October Newsletter (Issue 10-2018)

Does A St. Louis Ordinance That Required A Majority Of Persons Living Within A 500 Foot Radius Of A Homeless Shelter Constitute An Unlawful Delegation of Legislative Power in Violation of the United States Constitution?

The focus in analyzing the New Life case is on the argument by New Life that the plat-and-petition requirement of the City of St Louis (City)  violated the United States Constitution because it delegated to citizens the legislative power to deny the use of a building for a homeless shelter.  This case brings into focus how the delegation to private citizens of governmental power plays out under Missouri law, making it extremely important.  This case focuses on the differences between two United States Supreme Court cases (Eubanks and Cusick) and as such it is the jumping off point for anyone who has a similar issue in Missouri.

Facts and Procedure: New Life owns a building located at 1411 Locust Street in downtown St. Louis, Missouri, and has used that building for religious practices since 1976.  In addition to using the building for church services, New Life utilizes the building as a shelter for the homeless (the “Shelter”); New Life also offers other resources to the local homeless population, including assistance with transportation, groceries, medical prescriptions, clothing, and case management.  New Life claims it has offered shelter to the homeless at 1411 Locust Street in various fashions since 1976 when it was issued a “hotel permit” with a 32-occupant limit by the City.  The hotel permit for the Shelter was grandfathered into subsequent ordinances and zoning plans enacted by the City, and New Life operated the Shelter, under that permit, until May 12, 2015, when its permit was revoked by the City’s Board of Public Service.

The Board of Public Service revoked New Life’s permit for the Shelter after a majority of property owners and occupants filed a petition to have the permit revoked, alleging that the Shelter had become a detriment to the neighborhood because, instead of complying with the 32-occupant limit of the Shelter’s permit, New Life was regularly accepting approximately 300 occupants every night.  New Life would require its homeless guests to leave the Shelter by 7 a.m. every morning; however, many of the Shelter’s homeless guests would stay in the immediate neighborhood so that they might again be admitted into the Shelter that night.  Most of the 300 occupants stayed in the area during the day creating all sorts of public nuisance problems that are documented in the 44-page opinion by the Eastern District.  After the revocation of its permit for the Shelter by the Board of Public Service, New Life filed an application for an exemption from the plat-and-petition requirement of the City Code to the Board of Building Appeals (BBA), which denied the request for an exemption after a hearing, where substantial evidence was presented by the parties.  New Life appealed the decision of the BBA to the circuit court, which affirmed the denial of New Life’s request for an exemption to the plat and-petition requirement that must be fulfilled in order to obtain a permit and license to operate a homeless shelter in the City.  The BBA also ruled that New Life was exempt from a prohibition in the City Ordinance requiring home shelters to be a certain distance from schools thereby affecting the interest of  Confluence Academy.  Both New Life and Confluence Academy appealed to the Eastern District.

Opinion: Issues – New Life argued in its first point that the BBA erred in affirming the underlying decision that it must satisfy the plat-and-petition requirement because the requirement does not apply to it because New Life is a “church” seeking an occupancy permit for its homeless shelter and the plat-and-petition requirement only applies to “hotels, dormitories, rooming houses or boarding houses seeking a license.”  In its second point, New Life asserted that the BBA erred in affirming the underlying decision because Section 903.1 is unconstitutionally vague and ambiguous as applied by the BBA.  In its third point, New Life contended that the BBA erred in affirming the underlying decision because its findings of fact and conclusions of law were unsupported by competent and substantial evidence.  In its fourth point, New Life argued that the BBA erred in affirming the underlying decision because the plat-and-petition requirement contained in § 903.1 unconstitutionally delegated the City’s legislative authority in violation of’ the Fourteenth Amendment’s due process clause.  In its fifth point, New Life asserted that the BBA erred in affirming the underlying decision because the plat-and-petition requirement of § 903.1 violates the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).

Additionally, Confluence Academy, Inc. (“Confluence Academy”), intervenor, cross-appealed the circuit court’s judgment affirming the BBA’s order.  Confluence Academy argued that the BBA erred in granting New Life’s request for an exemption to the school spacing requirement of § 903.1.

Vagueness – The City Code was not vague because Chapter 25.32.510, made it clear that the issuance of a “license to operate” a homeless shelter to the licensee is dependent upon the applicant (a) complying with the plat-and-petition and school spacing requirements, and (b) obtaining a “permit to operate” from the Board of Public Service.  Section 903.1 clearly establishes that applicants must obtain both a permit and license.  There was no ambiguity or vagueness.

Plat and Petition Requirement –Section 903.1 also necessitates that, “together with all other requirements of this Chapter,” applicants for a license must file a “plat or drawing” of the proposed premises, file a written petition in favor of the issuance of the license signed by a majority of the persons occupying the premises or conducting any business on the main floor within the prescribed petition circle.

New Life argued that the BBA erred in affirming the underlying denial of its request for an exemption from the plat-and-petition requirement because § 903.1 unconstitutionally violates their due process rights under the Fourteenth Amendment because the plat-and petition requirement unconstitutionally delegates legislative authority to surrounding residents and property owners.

The Eastern District noted that municipal ordinances governing the usage of property that require the consent of neighboring property owners and occupants have been both upheld and struck down by the Supreme Court of the United States; in those cases (and their progeny), the results have depended upon (a) whether the municipality may regulate the proposed use of the property under its police power; (b) the extent of the authority granted to the surrounding private citizens, and (c) whether the proposed use of the property is a potential nuisance.

In this case, the City had the police power to regulate the activity in order to ensure public health, safety and general welfare as affected by the continued occupancy and maintenance of structures and premises that could be a nuisance.  There clearly was a rational relationship between the police power and the need to regulate this activity.  In addition, the ordinance was specifically created to regulate property that could be a potential nuisance.

The facts in the case, clearly demonstrated that the activities of New Life were nuisances that affected the public health and welfare of the surrounding area.  In Cusick, the leading United States Supreme Court decision, it was held that the ordinance in Cusick was not an unlawful delegation of legislative authority because the ordinance prohibited the erection of billboards in specified areas and it “only granted the neighboring property owners , whom the ordinance was meant to protect, the ability to waive that prohibition.”

The United States Supreme Court further drew a distinction between the ordinance in the Cusick case and the one in Eubanks, stating that in Eubanks the ordinance permited two thirds of the lot owners to impose restrictions upon the other property in the block [(Eubanks)], while the other permitted one half of the lot owners to remove a restriction.  (Cusick) Therefore, the Eastern District concluded that the plat-and-petition requirement of the City was valid.  The distinction between “imposing” restrictions (such as in Eubanks and Roberge) versus “waiving” them (Cusack) is determinative of whether the ordinance unconstitutionally delegated legislative authority.  Ordinances like § 903.1 of the City ordinance do not unconstitutionally delegate legislative authority because the legislature has already determined that the specified use of property was unlawful due to the use being potentially hazardous or burdensome to the surrounding area, even though it could be waived.

Further, unlike any of the ordinances from the aforementioned cases, City Code Chapter 25.32.510 does not even delegate authority to the extent the ordinance in Cusack did because under the City Code the proposed premises must  meet standardized building regulations that allow the building commissioner to grant exemptions to requirements of the City Code.  This is relevant because the City (1) does not forfeit complete control to surrounding property owners; (2) requires that the applicant meets administrative health and safety standards; and (3) can exempt an applicant from the plat-and-petition requirement.

 RLUIPA- RLUIPA provides that: “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution– (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”

The parties concede that operating a homeless shelter as part of a church constitutes an exercise of religion; therefore, RLUIPA applies.  The courts are split however on the meaning of what constitutes a “substantial burden.”  Some courts reason that the regulation must place more than inconvenience on religious exercise and the regulation must be oppressive to a significantly great extent to constitute a substantial burden.  The burden must be more than incidental on the religious exercise.

In this case, the Court note that New Life could have attempted to gather the required signatures to comply with the Plat-and-Petition requirement.  Furthermore, the Court reasoned that if a church operated a hospital it would not be exempt from regulations concerning the operation of the hospital; therefore, it follows that the plat-and-petition requirements apply so long as they do not create a substantial burden.

 School Spacing Requirement Regulations (Confluence Academy Cross Appeal) –  In its order, the BBA overturned the building commissioner’s denial of New Life’s request for an exemption to the school spacing requirement, and granted New Life’s request for an exemption.

The BBA ruling read: “The BBA reasoned that the Plat & Petition process may serve to protect the school’s interest, in this particular case, and could lead to productive operational changes by [New Life].  Absent the existence of an enforceable Plat & Petition process, the [BBA]’s determination regarding the school-spacing requirement would be different.”

On its face, the reasoning of the BBA was flawed because it granted an exemption from the school spacing requirement based on the rationale that if the plat-and-petition process had not been in place it’s Order granting an exemption from the school spacing requirement would have been different.  The Eastern District, rejected the BBA reasoning  because it was clear that the legislative intent was to protect schools from the adverse effect of homeless shelters, which in this case was substantial.  New Life  allowed sex offenders to stay in the homeless shelter for up to two weeks.  Having sex offenders immediately across the street for the school was considered to be extremely detrimental to the school.  In addition, Confluence Academy could have waived the distance requirements since it was the only beneficiary of the distance prohibition.

Therefore, the Eastern District found that granting New Life’s request for an exemption to the school spacing requirement was arbitrary, capricious, and unreasonable under the circumstances.  Furthermore, the argument that the school distance requirement violated RLIUPA was rejected based on the same grounds that the argument by New Life protected the homeless shelters similarly applied  to the school distance requirement.  New Life Evangelistic Center vs. City of St. Louis, (ED105737, 09/25/18)

Comment Howard: This case covers a lot of territory even though it’s primary focus is on the question of delegation of legislative power to private citizens.  The roadmap for answering this question is the United States Supreme Court decisions and the very clear distinction they have made between a law that prohibits a use of property that can be waived by persons living within the area versus having to obtain permission from property owners in order to use their property.  This case makes it clear where Missouri stands on this issue by following the roadmap provided by the United States Supreme Court.

Court Finds That Initiative Petition Was Valid Because It Did Not Violate the “One Subject” and “One Article” Prohibition in the Missouri Constitution

Besides answering the substantive questions of whether or not the initiative petition violated the “one subject” and “one article” probation in the Missouri Constitution, the opinion by the Western District provides a very important and useful outline of basic principles in examining initiative petitions, which is applicable to initiatives at the local level.

Facts and Procedure: Ritter v. Missouri Secretary of State John Ashcroft, involved a challenge to an initiative petition proposed by “Clean Missouri” to amend Article III of the Missouri Constitution by addressing the legislative department and adding three new sections to Article III which would:

  • require legislators and employees of the General Assembly to wait two years after the conclusion of the legislative session in which they last worked, before they could serve as paid lobbyists (§ 2);
  • prohibit legislators and legislative employees from accepting gifts valued at more than $5.00 from paid lobbyists (§ 2(a));
  • prohibit candidates for the Senate from accepting campaign contributions of more than $2,500.00 in any one election cycle, and prohibit House candidates from accepting contributions of more than $2,000.00 (§ 2(c));
  • prohibit candidates from accepting contributions from any federal political action committee (“PAC”), unless the committee has filed the same financial disclosure reports as Missouri PACs (§ 2(f));
  • declare that legislative records are public records, and legislative proceedings are public meetings, subject to generally applicable public- access laws, including the “Sunshine Law” (§§ 19(b) and (c)); and
  • prohibit legislators and legislative candidates from engaging in political fundraising activities on State property (§ 20(c)).

In addition, in new § 3, and in amendments to Article III, § 7, the Initiative Petition proposes to substantially modify the procedure for apportioning House and Senate Districts following a decennial census.

The Initiative Petition was certified by the Secretary of State and thereafter, it was challenged by Paul Ritter and Daniel Mehan (Petitioners) in Cole County Circuit Court on the grounds that, amongst other things, the Petition contained more than one subject in violation of Article III, Section 50 and Article XII, Section 2(b) and that the Petition amended multiple articles of the Missouri Constitution in violation of Article III, Section 50 and Article XII, Section 2 (b).

The circuit court found that the Initiative Petition violated the Missouri Constitution for the reasons stated above and Clean Missouri appealed to the Western District.

Opinion:  The Western District started its analysis by restating fundamental principles that apply when reviewing initiative petitions under the Missouri Constitution.  Even though, no new substantive law is generated by this review it is extremely useful to have these principles set forth in one opinion in a very clear and concise way.  Before getting to the substantive questions, raised in the lawsuit, a short review of these basic principles might be helpful since they shape the underlying reasoning of the opinion.

Key Principles Applicable to Reviewing Initiative Petitions

  • Nothing in our constitution so closely models participatory democracy in its pure form.”
    • “When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation and a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course.”
  • An amendment shall not contain more than one subject and matters properly connected therewith.  The purpose of the one purpose provision is to prevent “logrolling,” whereby “…unrelated subjects that individually might not muster enough support to pass are combined to generate the necessary support.”
    • When reviewing a “one subject” challenge to an initiative petition, the Court must liberally and non-restrictively construe the petition in such a way that the provisions connected with or incident to the central purpose of the proposal are harmonized and not treated as separate subjects.
    • In reviewing multiple subject claims, this Court “must scrutinize the proposal to see if all matters included relate to a readily identifiable and reasonably narrow central purpose.”
  • A proposal may amend several articles in the constitution so long as all proposals are germane to a single purpose.
    • Separate articles of the Constitution address different branches of state government subjects, and when the subject of an initiative petition properly falls within a matter that is within a single article of the Constitution it will generally be deemed to address “one subject.”
    • The constitution is organized by subject into various articles. Each article is subdivided into sections. The sections relate to specific matters connected with the general heading of the article.
    • The organization of the constitution creates a presumption that matters pertaining to separate subjects, therein described should be set forth in the article applicable to that subject and not commingled under unrelated headings. The organizational headings of the constitution are strong evidence of what those who drafted and adopted the constitution meant by “one subject.”
    • Taking the above statements together, if various proposed constitutional amendments all properly fall within the scope of a single article of the Constitution, those amendments will generally be considered to address “one subject and matters properly connected therewith.”

One Subject Issue: Having established the framework for analyzing constitutional issues relating to the “one subject” rule and the single article the court then applies these principles to the Initiative Petition.

In this case, the Court noted that:

In addition, none of the provisions of the Initiative Petition relate to other subdivisions of Article III – which specify procedural rules for legislative proceedings; substantive limitations on legislative power; the State lottery; and the initiative and referendum mechanisms.

In addressing a “one subject” challenge, the Court reads an initiative petition in a manner favoring its validity.  In addition: “A measure may encompass one subject, and yet effect several changes and incidents, if all are germane to its one controlling purpose.”  Therefore, the Court concluded that the Initiative Petition did not violate the one subject rule.

One Article Issue: Petitioner’s argued that the Initiative Petition improperly amended or revised more than one article of the Missouri Constitution, in violation of Article III, § 50, and Article XII, § 2(b) of the Constitution.  The circuit court found that the Initiative Petition violated the “single article” principle for many of the same reasons the court concluded that the Petition violated the “single subject” requirement: because it regulates and imposes duties on non-legislative officials and activities; and because it directly conflicts with the campaign contribution limits stated in Article VIII, § 23.3(1)(a).

The Court concluded that on its face, the Initiative Petition did not amend provisions of other Articles but even if it did it is well-established that a proposal may amend several articles in the Constitution so long as all proposals are germane to a single purpose.  In this case, provisions relating to the establishment of a state demographer and the placement of certain additional duties on the State Auditor were primarily related to modification of the legislative redistricting process which is a legislative function; therefor, the additional provisions are germane to a single overarching purpose related to limitations on the influence of partisan special interest by regulating campaign contributions and providing for a redistricting process in accordance with the creation of legislative districts that comply with the Constitution.  Ritter v. Missouri Secretary of State, (WD82110, 09/21/18)

Comment Howard: This is an extremely well written opinion, in a highly contested case, where the stakes were extremely important.  The opinion distinguishes earlier Missouri Supreme Court cases making this case the place where your research should begin.  I would expect that even though the court found the amendment sufficient there will be further court challenges if this amendment passes in November 2018.  I found that the Courts comment in FN4  about John Ashcroft,  the Secretary State certifying the petition as valid while refusing to defend it noteworthy and interesting.

Dismissal Of Employees Who Were Convicted Of Crimes By A Bank Constituted A Business Necessity

Facts and Procedure: Wells Fargo is an FDIC-insured bank.  Job applicants to Wells Fargo are required to answer whether they had a conviction of a crime involving dishonesty.  Starting in 2010, Wells Fargo instituted a fingerprint-based background check for its current and potential employees.  The background check returns all criminal convictions, regardless of the age of the crime.  In 2012, Wells Fargo re-screened its entire Home Mortgage division.  Wells Fargo asked its employees for authorization to re-screen and again asked the employees to answer whether they had convictions involving crimes of dishonesty.  The bank then terminated the Home Mortgage employees verified to have Section 19 disqualifications.  Wells Fargo did not inform the terminated employees of the availability of Section 19 waivers, and it did not offer to sponsor waivers for any individual.

Between December 2011 and March 2013, Wells Fargo terminated at least 136 African Americans, 56 Latinos, and 28 white employees because of Section 19 disqualifications.  Between February 2013 and November 2015, Wells Fargo also withdrew at least 1,350 conditional job offers to African Americans and Latinos and 354 non-minorities after the background check revealed these individuals had disqualifying convictions.

The appellants sued, alleging race-based employment discrimination under Title VII of the Civil Rights Act.  They alleged that Wells Fargo’s policy of summarily terminating or withdrawing offers of employment to any individual with a Section 19 disqualification discriminated against them under the Civil Rights Act. Wells Fargo moved for summary judgment that was sustained by the district court, which concluded the appellants failed to establish a prima facie case under any theory of employment discrimination law.

Opinion: At issue was whether the appellants had established a prima facie case of Title VII disparate impact, and if they had, whether Wells Fargo failed to show a business necessity defense

Appellant’s argued that Wells Fargo refusal to adopt the alternative practices of giving advance notice of the need for a waiver, granting leave to seek a waiver, and providing direct sponsorship of a waiver would have reduced the disparate impact caused by the summary exclusions.

Under Title VII, an unlawful disparate impact is established only if, the complaining party demonstrates that a respondent used a particular employment practice that causes a disparate impact on the basis of race and the respondent failed to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.

In order to satisfy the elements of a prima facie case the plaintiff must show an identifiable, facially-neutral personnel policy or practice; a disparate effect on members of a protected class; and a causal connection between the two.

In this case, the African-American and Latino employees were terminated (or potential employees were not hired) at rates at least twice those of non-minorities.  But even assuming that the disparate impact was caused by Wells Fargo’s policy of uniformly applying Section 19, the district court correctly recognized that the bank’s “sound business decision was to terminate regardless of race or age or ethnicity.” Non-compliance with Section 19 could place Wells Fargo at risk of daily fines of up to $1 million.  Further, the Court concluded that any bank or other financial institution wisely would prefer for its customers to be served by employees who were not previously persons convicted of crimes of dishonesty”; therefore, Wells Fargo’s policy of summary employment exclusion following a Section 19 disqualification is a business necessity.  Williams v. Well Fargo Bank, (8th Cir., 16-4372, 08/29/18)

Appellate Court Takes Judicial Notice Of Traffic Conditions At Time And Place On I–29 To Show Driver Was Operating A Vehicle

Facts and Procedure: Officer Hill of the St. Joseph, Missouri Police Department was dispatched to a wellbeing check on Interstate 229 near Exit 22.

Officer Hill testified that, when he received the call, he was not far from the location of the wellbeing check.  When Officer Hill arrived at the scene he saw the vehicle resting on Interstate 229, directly before the bridge over 22nd Street.  The vehicle was positioned so that it was six to twelve inches from the concrete bridge, and was parked parallel to the guardrail, which was only a few inches away from the vehicle so that no one could enter or exit the vehicle on the passenger side.

When Officer Hill approached the vehicle, he saw a subject (Barac) slumped with his head on the steering wheel.  Officer Hill opened the vehicle’s door, and Barac immediately became uncooperative and combative.  Officer Hill smelled a strong odor of intoxicants coming from Barac’s body and noticed Barac’s bloodshot, watery eyes.  Further, Barac’s speech was slurred, but as the encounter continued, Barac’s speech improved.  Officer Hill asked Barac to submit to a portable breath test.  Barac refused. Officer Hill testified that he did not attempt to conduct any field sobriety tests at the scene because it was apparent to him that Barac would refuse to participate.  Thereafter, Officer Hill placed Barac under arrest and escorted him to the patrol car. Barac used short, uncertain steps, walking slowly toward the patrol car.

Officer Hill transported Barac to the station.   While at the station, Barac refused to submit to a breath or blood test, so Officer Hill obtained a warrant to take a blood sample.  Barac’s blood sample, which showed a blood alcohol content of .359 percent. While on the scene, Officer Hill confirmed that the vehicle was registered to Barac.  Officer Hill testified that, while the vehicle was not running, the vehicle’s  key was in the ignition and turned to the “on” position so that Officer Hill had to turn the key counterclockwise to remove it from the ignition.  Officer Hill also testified that he found no containers of alcohol around the vehicle, and during a subsequent inventory search of the car, he found no containers of alcohol in the car itself.  On cross-examination, Officer Hill testified that he did not feel the vehicle’s hood to determine whether it was hot and that he did not check if the vehicle had gas.  Officer Hill then testified that he did not know how long the vehicle had been parked at the scene.
  The State charged Barac with driving while intoxicated as a  chronic  offender in violation of Section 577.010.  After a bench trial, the trial court found Barac guilty of driving while intoxicated as a chronic offender and sentenced him to five years’ imprisonment.  Barac appealed to the Western District.

Opinion: The single issue raised by Barac was that there was insufficient evidence to prove beyond a doubt that he was driving while intoxicated.  Barac did not deny that he was intoxicated when the officer arrived at the scene nor did he dispute his prior convictions.  Barac instead argued that there were no witnesses to testify that they actually observed Barac driving the vehicle.  Furthermore, the officer testified that the engine was not running although the key was in the ignition, that he did not touch the hood of the vehicle to see if it was hot, nor did he check to see if gasoline gauge to see if there was gasoline in the car.  In addition, the State did not present any evidence about the amount of traffic on Interstate 29, where the vehicle was parked at 6 PM on a weekday night.

Since there was no direct evidence to show that Barac was driving the car the court took judicial of the current history of geographical facts commonly known all mankind, which was there would have been lots of traffic at 6 PM on a weeknight in an urban area allowing the court to infer that the vehicle could not have been parked in the area next to a bridge for a very long period of time without somebody reporting the parked vehicle to the proper authorities.  In addition, since there were no alcoholic beverages in the car and the BAC for Barac was .359 the court concluded that it was reasonable to infer Barac drove the vehicle while intoxicated.  State of Missouri v. Barac, (WD81267, 09/25/18)

Comment Howard: Amazing case! If you’re looking for a  way to fill in the gap to show that a person was driving a vehicle under the influence of alcohol this is the case for you. I personally have a very difficult time getting my head around the idea that the court can take judicial notice of an area on a highway, at a particular time of day on a week day, in order to conclude that the vehicle had only been parked there a very short time in order to conclude that Barac had just arrived at the scene allowing the court to infer that Barc must have been driving the car.  Still the case is extremely helpful to prosecutors.  Also, it did not seem that the prosecutor did a good job preparing the officer to testify in this case, having totally forgot to ask about traffic conditions on that particular day at that time nor did the Officer do a good job of investigating the scene.

IMLA recently alerted its members to a recent order by the FCC that will restrict the ability of local governments to control the placement of cells on existing and new poles within their jurisdictions as well as capping the amount that can be charged to carriers for the placement of cells.  Reprinted below is an article referred to in the IMLA alert written by Dave Nycsepir in Route Fifty.com.  In addition, the National League of Cities and the National Association of Counties issued a news release providing key takeaways from the FCC Order.  Failure to meet shot clock deadlines for site applications allows the wireless company go to court for expedited injunctive relief within 30 days; consequently, it will be extremely important for local government to handle requests in an expedited manner. 

News Release:  

Yesterday, the FCC approved an order that will further restrict the ability of local governments to control the placement of cells on existing and new poles within their jurisdictions and caps the amount that localities can charge carriers for such placements.  As the article indicates, about 20 statehouses have already preempted municipalities from taking their own actions regarding cells.

An article by Dave Nycsepir in Route Fifty.com tells the story:

The Federal Communications Commission approved an order Wednesday that will restrict state and local governments’ ability to regulate the rollout of fifth-generation wireless networks.

The rule sets strict approval times for governments to consider permits and caps the fees jurisdictions can charge providers.

Commissioner Brendan Carr, a Republican, introduced the plan earlier this month promising providers would save $2 billion on unnecessary fees while bringing the much-faster 5G service to cities and underserved rural and suburban communities.

“We need a concrete plan to close the gap with China and win the race to 5G,” Carr said prior to the vote. “We take this seriously at the FCC, and we are getting the government out of the way so that the private sector can invest and compete.”

Carr and other proponents have argued that smoothing the regulatory path for 5G will help bring broadband internet service to places that currently don’t have access.  However, critics have been skeptical, saying that instead cities should be allowed to use their clout to expand infrastructure to neighborhoods where the market hasn’t gone.

The order, approved 3-1 along party lines, gives jurisdictions 60 days to approve small cells being attached to existing structures and 90 days for entirely new poles, similar to the STREAMLINE Small Cell Deployment Act currently under consideration in the U.S. Senate.

Even one key critic of the proposal celebrated the shorter timeframes.  But that’s where agreement ended among the FCC commissioners.  “Three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards,” said Commissioner Jessica Rosenworcel, a Democrat and the lone dissenter. “This is extraordinary federal overreach, and I don’t believe that the law permits Washington to run roughshod over state and local authority like this.  And I worry that the litigation that follows will only slow our 5G future.”

States and local governments had already been at odds about 5G, with about 20 states preempting local authority when it comes to negotiating with providers.  Local government application fees are typically tied to review costs, but the order calls for a $500 single, up-front application fee including up to “five small wireless facilities”-and $100 per each one after.

A new annual rent ceiling on recurring charges for placing wireless facilities on public property shortchanges jurisdictions, critics said.  The rule requires $270 per small wireless facility per year, including right-of-way access fees and attachment fees.

But the order won’t preempt states with extremely low rent limits like Arizona.

“To be sure, there are some local governments that don’t like this order; they would like to continue extracting as much money as possible in fees from the private sector and forcing companies to navigate a maze of unnecessary hurdles to deploy wireless infrastructure,” said FCC Chairman Ajit Pai, a Republican. “These actions are unlawful but shortsighted.  They slow the construction of 5G networks and will delay, if not prevent, the benefits of 5G from reaching American consumers.”

The MML is preparing a draft ordinance dealing with this topic, to be released  in the near future

Comment Howard: It seems like the stars are aligned against local government on this issue.  I assume that national organizations will appeal the decision and that more news will bd forthcoming from stated national organizations.  With respect to  local government  efforts to provide for procedural guidelines in order to comply with the ruling would seem to be in order particularly in light of the remedies available to the wireless companies.

Eldon Did Not Violate The Hancock Amendment By Charging Owners Of Multiunit Complexes Served By A Single Meter A Minimum Fee Per Unit In Addition To The Usage Rate
Eldon recently won a lawsuit in Circuit Court in connection with allegations that fees for water services violated the Hancock Amendment because the rates and fees were used to generate revenue for Eldon’s general fund without a public vote.  Of particular interest, were the charges made for multi-residential or multi-commercial housing.  The ordinance charged owners of multiunit complexes served by a single meter a minimum fee per unit in addition to the usage rate.  The court ruled that the revenues used by the city were to upgrade and maintain the water and sewer works within the city and that the plaintiffs derived economic benefits from their property; therefore, there was no violation of the Hancock Amendment.  For more information see the following news article.