Local Governing Bodies and Public Hearings
Securing permit approval through local governing bodies and public hearings, if necessary, represents the completion of tasks to secure the real estate entitlements necessary to construct proposed wireless facilities (assuming space rights are secured by the time local permit rights are finalized).
Commissions and Boards
Most county and city jurisdictions meet once or more per month. Some rural jurisdictions with low populations only meet quarterly, annually, or when enough business arises to justify a meeting. Township board positions are often voluntary and board members may receive only mileage reimbursement to attend meetings and conduct other township business. While members of city council, county commissioner, and township boards are usually elected by the constituency, positions on city and county planning commissions are typically appointed by elected officials. A planning commission may have the authority to grant final approval for certain types of applications but not others. In those cases, the commission can only make a recommendation and the city council or county board of commissioners, whichever is the case, makes the final decision. In some small towns and rural communities building permit applications must be approved by the governing body.
Planning Commission
Members of the jurisdiction planning commission are usually appointed by elected members of a governing board such as the county board of commissioners, city council, or town board of supervisors. As such, the planning commission’s authority may be limited to making recommendations. Depending on the jurisdiction, some actions of planning commissions are final unless appealed to a governing board.
Planning commissions may be idealistic in their goals to preserve the pristine nature of a community.1 The job of planning commissions is primarily to rule in conformance with the letter and spirit of the zoning code while considering the master plan for the community. In doing so, the planning commission may exert a wide range of flexibility regarding an application, particularly for conditional or special applications. read more…
City Council, County Board of Commissioners, and Township Board of Supervisors
The city council, the county board of commissioners, and the township board of supervisors are the governing boards of their respective local jurisdictions, depending upon whether the jurisdiction is a city, a county, or a township. Other forms of jurisdiction exist as well, such as villages, hamlets, neighborhood associations, and special districts. Elected officials of governing boards may be inclined to agree with the recommendations of planning commissions or, at times, disagree with planning commission reasoning. When one board overturns another board or the vote of a single board is mixed, it is in recognition that all voices were heard though not all held the predominant opinion. Remember governing bodies can be extremely political and therefore volatile. Though politicking is not part of the job description, it is invariably required at some level to support wireless facility applications.
As political entities, governing boards are subject to change each election cycle. read more…
Zoning Board of Adjustment
The actions of a zoning board of adjustment (ZBA) are usually limited to reviewing requests for a variance or appealing the previous decision of another board. Often the ZBA has the same members as an elected governing board, which acts separately as the ZBA regarding specific types of zoning requests. The governing board may adjourn temporarily during a meeting to become the ZBA and then reconvene as the governing board after the ZBA business is complete. Alternatively, the ZBA may have its own day and time set aside for meetings. Not all jurisdictions have a ZBA and its purpose can vary from one jurisdiction to another.
Neighborhood Groups and Associations
Neighborhood groups were discussed in Module 29 Planning Staff Review. They form out of neighborhood concerns so that residents can provide input on decisions made by the local government. Many jurisdictions require input from local citizens, such as a neighborhood group or association, prior to scheduling hearings with the planning commission or the jurisdiction’s governing body. These groups typically want to control development activities and make the new construction conform to neighborhood architectural design, or they may be primarily interested in fostering economic development. Don’t overlook the influence of neighborhood groups and associations. Their existence, involvement, and authority should be recognized in the site selection process development, as discussed in Module 9 Zone-ability, and reported as discussed in Module 13 Search Area Report.
Historic Architectural Review Committee (HARC or ARC)
Communities with significant history to preserve are likely to have historic preservation groups that act to maintain the historic ambiance of the jurisdiction or district. You are not likely to get a new structure or antennas approved in historic districts without employing stringent design criteria to hide-modern day technology from local views. Historic design criteria may apply not only to wireless sites but to all new development, redevelopment, and renovation in historic districts. A good reference for historic districts, as discussed in Module 16 Project Initiation, and Module 30 Community Due Diligence, is the amended nationwide programmatic agreement for the Collocation of Wireless Antennas.”1
Public Hearings
Representing the client and the development application at public hearings is the final crucial step in obtaining zoning permit approvals. Public hearings are routine for applications for conditional-use permits, special-use permits, special exceptions, use-by-review applications, variance requests, rezoning requests, and text amendments. The hearing for an application usually begins with a reading of the proposal. The staff planner responsible for the application processing makes a presentation to the board or commission. Questions may be directed to the staff planner by the hearing board, after which the applicant is given a few minutes to make a presentation. Finally, members of the community are invited to make brief comments. After that, the direction of hearing is controlled by the governing board hearing the application.
Preparation
During the applicant’s testimony submittal, it’s important to effectively communicate the need to approve the proposed facility and demonstrate compliance with the ordinance, as discussed in Module 28 Local Permit Applications, and Module 30 Community Due Diligence. Honest efforts to answer all questions work well to develop community rapport. Simple visual exhibits may be valuable at the hearing. It’s possible that some local citizens or members of bodies conducting the hearing will have unresolvable and diametrically opposed points of view regarding wireless facility permit applications. This may be a result of the site selection choice or prejudice against the expansion of wireless facilities. Some who regularly attend local hearings and oppose many development projects may constantly be engaged in the conspiracy theory. Remain calm.
Presentations
With only a few minutes for the applicant to make a presentation, it is important to have already satisfactorily addressed all inquiries and laid the groundwork for approval. The applicant should start by introducing himself or herself, the client being represented, and the applicant’s home city and, if requested, address. A summary of the content of the narrative discussed in Module 28 Local Permit Applications, establishes the background of the application.
Sales Approach to Hearings
A sales presentation format I learned early in my career from the American Management Association’s Principles of Professional Salesmanship (POPS) Program involved an easily remembered sequence in which to progress sales conversations.1 The POPS program has no doubt changed since then, but the process is an effective way to move logically from problem identification to solution application. Once my wife was frustrated about a presentation she was going to give the next morning. Dozens of paper shreds were scattered about the room. While she knew the material, she lacked direction about how to convey the content. Once she understood the POPS format she was able to effectively organize her thoughts. As a result, her presentation was received well and she felt satisfied.
So what’s the format? read more…
Legal Approach to Hearings
One method of presenting evidence or a proposal for acceptance in a public hearing environment is through the use of sequential logic aimed to persuade.1 The “issue, rule, application, and conclusion” (IRAC) concept is often used by law students and trial attorneys to make their case. This approach is flexible and might actually start with a statement of the conclusion, followed by a discussion of the issue being addressed, then the rule of law pertinent to the issue, and an explanation of the application of how the rule relates to the issue at hand. The presentation is completed with a persuasive conclusion reiterating how the original statement of conclusion has been strongly supported by the presentation.
A simplistic example applied to a wireless facility conditional-use permit application might go as follows. First, read more…
Unanticipated Developments during a Public Hearing
As indicated, surprises may arise at public hearings. Be aware of potential surprises before they occur. When fierce opposition or substantial unaddressed new issues surface during a public hearing and it’s likely that the application will be denied, it may be wise to agree to or at least consider a continuance of the hearing to another date if answering new objections requires additional information that the jurisdiction wants (as discussed above). The delay may be preferable to a denial for the client. Be clear with the client on the preferred approach if unexpected opposition presents itself during a hearing. Inevitably it will be your judgment call unless the client explicitly wants an answer now or, alternatively, wants to avoid a denial at this time.
Conditional Approval
While the staff report typically includes conditions for the governing board to adopt if the application is approved, board or council members may have their own ideas about stipulations to impose. Watch these carefully. It might seem, in the midst of approval, like extra last-minute conditions are no big deal, but they can be. Though well-meaning, some local authorities may seek to impose conditions on permit approval that are unconventional and don’t demonstrate an understanding of wireless facilities. Undesirable and unintended circumstances may result from conditions that are arbitrary and capricious. Be aware that these types of impositions may arise, and be prepared to diplomatically demonstrate that this issue has already been taken into consideration or, in some cases, may not be relevant.
Hearing Completion
Upon closure of a hearing, it is appropriate to quietly gather oneself and exit the room. My practice is to wait until the next item of business is initiated and to thank the governing board on the way out of the room. I don’t want to say this too loud as to interrupt anyone else talking or too softly so that no one hears. A nod and a look in the direction of the governing board members may be sufficient. Regardless of the hearing’s outcome, it is professional to thank the board for their consideration.
If approval was granted, it’s fair to ask about obtaining the paperwork. The board will likely refer you to the planner. In any event, be sure you don’t pass up the opportunity to secure the documentation as early as possible. I believe it’s professional to keep conversations in the hallway quiet and to a minimum after the hearing. The board will likely have other business to transact and conversations in the hallway may be a distraction.
Appeal Period
Whether approved or denied, an application decision might be appealed by the opponents or the applicant, respectively, depending upon appeal provisions in the land-use code. The appeal provisions were an item of inquiry during search area due diligence to be included in the SCIP, as discussed in Module 15, SCIP. After hearing approval, realize the decision is subject to appeal during the appeal period. In the case of application denial, the appeal period presents the deadline to appeal on behalf of the wireless facility developer client.
Appeal Hearing
In the case of a planning commission decision, the appeal may be heard by a higher governing body such as the city council or county board of commissioners. When the decision was made by the higher local governing body, the appeal may cause the application to be reheard by the same group or an appeal could be made to the district court. Appeals made to the same body that made the original decision could overturn the original decision based on new or additional information or a changed composition of the voting members due to absences or rotating positions in the membership.
