Title
Tolling Agreement for Conditional Use Case No. CON2017-00033.
Body
Recommended Action: Approve the agreement and authorize the Chairman to sign.
K.S.A. 66-2019 requires that the governing body make a determination on any cell tower application within 150 days after the application has been submitted. If such a determination has not been made within those 150 days, then the application is deemed approved as a matter of law.
Federal law, via a Federal Communications Commission Declaratory Ruling (In Re: Petition for Declaratory Ruling to Clarify; Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Etc., FCC 09-99 (FCC November 18, 2009), had previously established the ability for a cell tower applicant to seek a judicial review within 30 days if the application had been pending for 150 days or more. The court would then determine whether the local authority had acted within “a reasonable time” or not.
An exception to this general rule contained within K.S.A. 66-2019 occurs if the applicant and the governing body expressly agree in writing to toll the 150-day timeframe. In this matter, the applicant submitted the conditional use application on August 25, 2017. As a result, the 150-day timeframe would end on January 22, 2018. The applicant, Verizon Wireless LLC, has agreed to toll the time period within which the County may act on the application through May 3, 2018.
Alternatives: To either: (a) not approve the agreement and hear the conditional use during the January 17, 2018 Board of County Commissioners meeting; or (b) propose amendments to the agreement to be conveyed to the applicant.
Financial Considerations: N/A
Legal Considerations: In order to toll the 150-day timeframe indicated within K.S.A. 66-2019, the Board of County Commissioners would need to approve this agreement. This agreement would also act to toll the timeframe indicated within the FCC Declaratory Ruling cited above. Approval is by simple majority ...
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