Legal View: Court decision paves way for greater federal involvement in land use

Edward Sullivan and Carrie Richter,
The Daily Record Newswire

On May 20, the United States Supreme Court handed down a decision affirming a sweeping declaratory ruling by the Federal Communications Commission that established a “shot clock” (or time limits) on decisions involving land use siting approvals of telecommunications facilities.

The telecommunications industry pushed the FCC for action under a federal statute that imposed certain restrictions on state and local government decisions on the placement or construction of wireless communication facilities. Among other provisions, decisions on such facilities must be made in a “reasonable period of time.”

The declaratory ruling established a 90-day period for state and local government review of personal wireless facilities and a 150-day period for all other wireless facilities, determining that the failure to act within those deadlines would presumably constitute a “failure to act” under that legislation and subsequently allow an applicant to seek judicial relief.

In addition, the new rules allow for a 30-day completeness check and for a mutual extension of the deadlines. However, the FCC rejected the “deemed granted” proposal in the event the local government failed to act from the industry and prohibited a local government from denying a land use application because another carrier was present in the area and could provide service. Two Texas cities sought judicial review from the Fifth Circuit Court of Appeals.

The Fifth Circuit found the case turned on administrative law issues that would not interest most non-lawyers: The court found that the procedure FCC used to adopt the new standards was valid. The appeal was timely filed. Third, the court said that, in the absence of unambiguous congressional intent on the point, the FCC was entitled to deference in its assertion that it had the authority to adopt the declaratory ruling, so long as it were permissible. Finally, the court found the declaratory ruling was a valid exercise of FCC’s authority under its statutory directive. The two Texas cities petitioned the U.S. Supreme Court for certiorari to review the Fifth Circuit’s decision and the Supreme Court granted certiorari.

The result was a majority decision affirming the FCC declaratory ruling and the action of the Fifth Circuit in affirming the ruling. Justice Scalia, who has wide experience in administrative law matters, wrote the
majority opinion. It gave broad deference to the FCC ruling, even though that agency was ruling on its own authority to adopt the very ruling appealed from. The majority rejected a dissent by Chief Justice Roberts, joined by Justices Alito and Kennedy, to the effect that courts should have the power to decide whether agencies have kept within their statutory authority in adopting the declaratory ruling.

The majority (which included conservative Justices Scalia and Thomas and liberals Sotomayor, Ginsburg and Kagan) upheld so-called “Chevron deference” to federal administrative agencies, a position long associated with Justice Scalia. The fact that planning and land use regulation are traditional matters of state and local concern did not change that result if Congress could lawfully delegate its control over interstate commerce to the FCC.

The result of this case is relatively unsurprising. Congress and the federal government have the constitutional power to regulate interstate commerce, and Congress has the power to set policies, goals and priorities to the agencies it establishes. Having once tasted that power, will there be a well-trodden path to the Capitol by interests seeking to go over the heads of state and local regulators and lobby policy-makers directly for greater administrative authority over local matters? That trend is well-established for land use regulation in Oregon, so the question will be whether this approach will catch on nationally.

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Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com. Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.