requires two-thirds majority vote (§ 13)                                                                                                               

                                                                                                  

 

Senate Bill No. 426–Committee on Commerce and Labor

 

March 24, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Establishes statewide procedures for approval of applications for placement, construction or modification of facilities for personal wireless communications. (BDR 58-1286)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to wireless telecommunications; establishing a statewide procedure for approval by a zoning authority of an application for the placement, construction or modification of a facility for personal wireless service under certain circumstances; authorizing a zoning authority to impose a fee to process an application; requiring that a denial of an application be in writing and supported by substantial evidence contained in a written record; providing for the appeal in the district court of a denial of an application on an expedited basis; requiring an award of attorney’s fees under certain circumstances; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. The Legislature finds and declares that:

1-2  1.  Congress enacted the Wireless Communications and Public

1-3  Safety Act of 1999, Public Law 106-81, 113 Stat. 1286, to

1-4  encourage states to make efforts to facilitate the development of

1-5  seamless, ubiquitous and reliable personal wireless services

1-6  networks as a means of promoting public safety by providing

1-7  immediate and critical communications links among members of the

1-8  public, emergency medical service providers and emergency

2-1  dispatch providers. The widespread use of personal wireless services

2-2  in the rescue, relief and recovery efforts following the

2-3  September 11, 2001, terrorist attacks, in which landline

2-4  communication networks were unavailable or unsuited to meeting

2-5  exigent public safety communications needs, demonstrated the

2-6  versatility and robustness of personal wireless services networks and

2-7  their resulting importance to public safety and homeland security. It

2-8  is the intent of the Legislature in enacting the provisions of sections

2-9  3 to 14, inclusive, of this act to reaffirm the federal policy of

2-10  facilitating the development of seamless, ubiquitous and reliable

2-11  personal wireless services networks as reflecting the public policy of

2-12  the State of Nevada, and to set forth uniform standards and

2-13  procedures that will give effect to this policy.

2-14      2.  A large percentage of the residents of this state subscribe to

2-15  personal wireless services, and there is a substantial public interest

2-16  in permitting the residents of this state to enjoy the increase in

2-17  personal productivity, flexibility and convenience attributable to the

2-18  availability of seamless, ubiquitous and reliable personal wireless

2-19  services. Seamless, ubiquitous and reliable personal wireless

2-20  services also facilitate telecommuting, flexible hours and other

2-21  alternate work arrangements that are integral to the service economy

2-22  of this state and strategies for reducing road congestion.

2-23      3.  Local governments in this state retain an important role in

2-24  decisions concerning the placement, construction and modification

2-25  of facilities for personal wireless services in order to ensure that

2-26  such decisions give consideration to legitimate local concerns.

2-27  Nevertheless, because personal wireless services networks must be

2-28  seamless, ubiquitous and reliable to be effective, there is a

2-29  preeminent state interest in ensuring the availability of such services

2-30  throughout the State. Furthermore, in the Telecommunications Act

2-31  of 1996, Public Law 104-104, 110 Stat. 56, Congress required that

2-32  applications for facilities for personal wireless services be acted

2-33  upon in an expeditious manner and without unreasonable delay. It is

2-34  the intent of the Legislature in enacting the provisions of sections 3

2-35  to 14, inclusive, of this act to balance local, state and national

2-36  interests by specifying uniform statewide procedures for the review

2-37  by local governments of applications for the placement, construction

2-38  and modification of facilities for personal wireless services.

2-39      Sec. 2.  Chapter 707 of NRS is hereby amended by adding

2-40  thereto the provisions set forth as sections 3 to 14, inclusive, of this

2-41  act.

2-42      Sec. 3.  As used in sections 3 to 14, inclusive, of this act,

2-43  unless the context otherwise requires, the words and terms defined

2-44  in sections 4 to 11, inclusive, of this act have the meanings

2-45  ascribed to them in those sections.

3-1  Sec. 4.  “Application” includes an application, petition or

3-2  other request to a zoning authority for any approval, conditional

3-3  use permit, exemption, permit, special use permit, special

3-4  exception or variance.

3-5  Sec. 5.  “Facility for personal wireless service” includes any

3-6  building, structure, antenna and other equipment used to provide

3-7  personal wireless service. The term includes a telecommunications

3-8  tower.

3-9  Sec. 6.  “Hearing examiner” means a hearing examiner

3-10  appointed pursuant to NRS 278.262.

3-11      Sec. 7.  “Governing body” has the meaning ascribed to it in

3-12  NRS 278.015.

3-13      Sec. 8.  “Personal wireless service” has the meaning ascribed

3-14  to it in 47 U.S.C. § 332(c)(7)(C), as that provision existed on

3-15  July 1, 2003.

3-16      Sec. 9.  “Planning commission” has the meaning ascribed to

3-17  it NRS 278.013.

3-18      Sec. 10.  “Telecommunications tower” means any

3-19  freestanding tower, monopole or similar structure used to provide

3-20  personal wireless services.

3-21      Sec. 11.  “Zoning authority” includes a governing body,

3-22  planning commission or hearing examiner. The term does not

3-23  include a zoning board of adjustment created by a governing body

3-24  pursuant to NRS 278.270 to 278.310, inclusive.

3-25      Sec. 12.  1.  Notwithstanding any specific statute or

3-26  ordinance to the contrary, a zoning authority with jurisdiction

3-27  over an application to place, construct, or modify a facility for

3-28  personal wireless service shall approve the application:

3-29      (a) If the applicant:

3-30          (1) Is a provider of wireless telecommunications that is

3-31  licensed by the Federal Communications Commission to provide

3-32  wireless telecommunications services over a designated radio

3-33  frequency and authorized to do business in this state; and

3-34          (2) Complies with the procedural requirements of the

3-35  zoning authority;

3-36      (b) If the application, supporting materials and testimonial or

3-37  documentary evidence produced at a public hearing on the

3-38  application demonstrate that the facility for personal wireless

3-39  service complies with applicable zoning regulations or ordinances

3-40  governing:

3-41          (1) Placement of the facility within a zoning district;

3-42          (2) Setback;

3-43          (3) Collocation of the facility on an existing building or

3-44  other structure approved by the zoning authority as a facility for

3-45  personal wireless service;

4-1       (4) Structural and, except as otherwise provided in

4-2  subsection 2, design standards; and

4-3       (5) If the facility is a telecommunications tower, limitations

4-4  on the height of the tower;

4-5  (c) If the application is for the placement of a facility, upon a

4-6  determination that there is no alternative location for the

4-7  placement of the facility that is:

4-8       (1) Readily available to the applicant;

4-9       (2) Commercially viable; and

4-10          (3) Technically equivalent to the proposed facility; and

4-11      (d) If the zoning authority imposes a fee or assesses a charge

4-12  for costs pursuant to section 13 of this act, upon payment of the

4-13  fee or assessment.

4-14      2.  A zoning authority shall not consider:

4-15      (a) The environmental effects of radio frequency emissions

4-16  from a facility for personal wireless service if the facility complies

4-17  with the regulations of the Federal Communications Commission

4-18  concerning such emissions.

4-19      (b) Design requirements that are purely aesthetic in nature,

4-20  including, without limitation, color, finish or harmony with

4-21  existing structures.

4-22      Sec. 13.  A zoning authority, in connection with an

4-23  application for the placement, construction or modification of a

4-24  facility for personal wireless service, may:

4-25      1.  Impose a fee for the application. The fee must be

4-26  comparable to fees charged for comparable applications.

4-27      2.  Assess the applicant for the actual costs incurred by the

4-28  zoning authority to process the application. These costs may

4-29  include, without limitation:

4-30      (a) Legal fees; and

4-31      (b) Fees paid to experts retained by the zoning authority to

4-32  assist in evaluating alternative locations for placement of a facility

4-33  pursuant to section 12 of this act.

4-34      Sec. 14.  1.  A zoning authority that denies an application to

4-35  place, construct or modify a facility for personal wireless service

4-36  shall issue a written decision. The decision must be supported by

4-37  substantial evidence contained in a written record.

4-38      2.  Notwithstanding any specific statute or ordinance to the

4-39  contrary, the denial of an application to place, construct or modify

4-40  a facility for personal wireless service may be appealed directly to

4-41  the district court in the judicial district of the location, or proposed

4-42  location, of the facility.

4-43      3.  If the appeal is filed not later than 30 days after the denial

4-44  of the application, the district court shall hear and decide the

4-45  appeal within 10 days after the filing of the appeal.

5-1  4.  If the court determines that the zoning authority violated

5-2  any of the provisions of section 12 of this act, the court shall, in

5-3  addition to any other relief, award reasonable attorney’s fees to

5-4  the prevailing party.

5-5  Sec. 15.  This act becomes effective on July 1, 2003.

 

5-6  H