Language in a recently enacted Missouri law regarding municipalities' regulatory control over wireless infrastructure and telecommunication towers has prompted state legislators to review the original bills when they return to session in January.
Both House Bill 331 and 345 dealt with regulations of telecommunication towers, wireless infrastructure and related topics. However, the Missouri Municipal League (MML) and other municipalities felt the legislation was overreaching and would eliminate a city's ability to regulate cell towers, particularly regarding pole attachments and fee applications.
The Missouri Senate and Missouri House of Representatives passed the bills by a large majority, which had a lot of changes from its original introductions and intermixes of language between them according to State Rep. Rocky Miller, R-Tuscumbia. In addition, Gov. Jay Nixon signed the bills into law, despite the MML and other's expressions of concern.
The cities of Liberty, Gladstone, Lee's Summit, Cameron, Butler and Independence, along with individual taxpayers, sued the State of Missouri in October claiming the new law was "unconstitutionally enacted and invalid in its entirety," according a Cole County Circuit Court judgment document. Presiding Judge Patricia Joyce stated in her final judgment that both House Bill 331 and 345 were invalid, unenforceable and unconstitutional. Now, the lawsuit has been appealed and awaits review by the Missouri Supreme Court.
"We'll have to find out what the Supreme Court says. However, we are also being told that we'll look at (the bills) early on in the legislative session, which will give the MML and others a chance to let their feelings be known," Miller said. "It will be interesting as we begin the next session."
In the Lake of the Ozarks area, municipalities have asked questions about the law's language and their ability to regulate wireless infrastructure and telecommunication towers. The City of Osage Beach corresponded with Miller stating the same concerns the MML had. As Miller told the City of Osage Beach at its Nov. 7 Board of Aldermen meeting, House Bill 345 had removed some of the language of the original bill, yet he believes there is sufficient protection to allow cities to regulate towers.
According to the City of Osage Beach's Nov. 7 Board of Aldermen meeting minutes, City Attorney Ed Rucker said attorneys do not believe HB 345 gives adequate coverage and Osage Beach officials want to be sure the city continues to have the ability to regulate towers. Rucker offered to write language that would help the city with Miller's approval.
At the Osage Beach Board of Aldermen's meeting last Thursday night, the board unanimously passed the draft of a letter to Miller expressing concerns about the legislation. Rucker wrote the letter at the request of Mayor Penny Lyons. Rucker said it was only fair to send Miller a specific letter outlining the things they really need from the legislators.
"It addresses the confusion of the issue of the language ... and frankly explains our problems with the overall design of the last telecommunications act," Rucker said. "Lake Ozark is dealing with this issue, and Camdenton has questions about it. It is becoming a hot item among local governments in what this bill did last year, and this (letter) outlines what we feel we need to get it fixed."
The letter explains how the city of Osage Beach has not had any problems with its current system regarding wireless infrastructure legislation and noting the current system works. The letter stated the city would need the ability to regulate the following issues in an effort to preserve the character of its community:
• Prioritization of location. The city of Osage Beach wants the facilities to locate on an existing tall structure on city property, on another existing tower, and make construction of a new tower based on the zoning district (first, industrial; second, commercial; and third, residential). The city states in its letter that this authority was removed by HB331/HB345, noting "city government must have the right to require wireless companies act in compliance with the zoning codes, which every other landowner in the city must follow."
• Proof of need is an issue, best described as a requirement the company demonstrate there is a real need for what they are proposing to build.
• For both upgrades and modification of co-location on existing facilities, the city seeks to ensure public safety on many levels.
• The city should be able to recover all of its reasonable costs associated with expert third party review through an escrow deposit, just as we require third party costs for a complicated economic development project. The city staff cannot negotiate without a background in the technical and engineering details of the subject.
Rucker agreed he would - following some minor corrections to the letter - also send the letter to the cities involved in the lawsuit and to the MML.