Posted By: Professor Patricia E. Salkin
I often field phone calls asking whether planning and zoning members can be removed from office by the local legislative body. Usually, the context involves board members who are allegedly “out of touch” with community desires and goals, or who “blatantly ignore” the urging of the appointing official or board. Most of the time, however, state statutes and local laws provide that board members can only be removed “for cause,” yet the laws rarely define this phrase. I typically try to engage in a conversation over what might be examples of “for cause.” For instance, whether the board member missed a lot of meetings; whether the board member attended a number of meeting visibly (and perhaps verbally) unprepared; whether the board member failed to follow the by-laws or rules of procedure; and whether the board member consistently demonstrates a refusal to follow the applicable law. Oftentimes, the answer to these questions is no, but the desire for removal seems more closely aligned with political motivations. In these cases, I typically advise that the public relations nightmare and accompanying lawsuit that will follow, may not be worth the removal action.
A recent federal district court case from Connecticut is instructive as to the legal analysis regarding the question of whether a federally protected property interest attaches to the position of planning and zoning board member.
Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman. He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission. In 2008, the Board sent Closson a letter informing him that the Board intended to remove Closson for cause citing various alleged failures to amend the plan of conservation and development. About 10 days later, the Board held a hearing on the removal, and Closson presented evidence in his defense and argued that his performance was satisfactory. Two weeks later, the Board voted to remove Closson, and a week later Closson filed a lawsuit in state court alleging a violation of his due process. The suit was removed to federal court.
On a motion to dismiss, the Town argued that Closson has no property interest in an voluntary, unpaid position as a commission member, and that he did receive due process regarding his removal. The District Court concluded that Closson did have a property interest in the appointed position, citing Connecticut state case law holding that an appointed fire marshall who received $70 per month and could only be removed for cause, had a continuing property interest in the appointment, the Court noted that under the Town Charter, Closson could only be removed for cause. The Court said, “it seems unlikely that Closson’s position as an unpaid, rather than minimally paid, appointee would change the Connecticut Supreme Court’s determination that such positions are property under Connecticut law.” The Court then considered whether Closson’s property interest rises to the level of a federally protected interest. While the Second Circuit has held that municipal board members do not enjoy federal constitutional protections of their positions, Closson argued that his position was appointed and not elected and therefore should be held to a different standard. The District Court held, however, concluded that there is no federal due process protection for an unpaid, volunteer position on a municipal board, whether elected or appointed.
Closson v. Board of Selectmen, Town of Winchester, 2009 WL 1538138 (D. Conn. 6/1/2009).
Posted By: Nick Miller, Partner, Miller & Van Eaton
The Congress approved a delay in the Digital Television Conversion from February until June 12, 2009. This additional time has allowed the Federal Communications Commission and the Department of Commerce’s National Telecommunications and Information Administration to enhance and restructure the federal government’s consumer outreach programs.
Among the good news items:
The story is not over—but the trends are finally positive.
And please do your part by sharing this Consumers’ Union public education package with your electeds, agencies and local media: CLICK HERE for the PDF
Every few years the Federal Communications Commission is asked to preempt local zoning (and sometimes building codes as well) as to telecommunications towers — radio, TV, cell phone and the like. Generally these attempts attract a lot of attention initially but then fizzle out.
In that regard the latest attempt to impose “shot clocks” and other restrictions on zoning applications for cell towers seems to be following a similar track. Although it was expedited by the FCC in the fall of 2008, presumably to allow the Bush FCC to act on it prior to leaving office, that now seems unlikely. It is also unlikely to be a high priority for a new administration.
Here are some examples of prior preemption attempts which followed a similar trajectory, followed by some observations as to why these patterns occur.
In 1996 the cellular industry was surprised to find courts approving temporary moratoria on cell tower zoning applications, usually until communities could adopt zoning ordinances to come into compliance with the then recently enacted cell tower zoning provisions of the 1996 Telecommunications Act, 47 U.S.C. § 332 (c)(7).
Reacting typically, in late 1996 the cell phone companies filed a petition at the FCC to have zoning moratoria declared illegal, or if not illegal, greatly restricted. The FCC, acting with unheard-of speed, sought comments both in December 1996 and then in July 1997. Ultimately the proceeding went nowhere and was resolved with an agreement between the FCC’s then Local and State Government Advisory Committee, the cellular industry, and the FCC on best practices for wireless tower siting and an informal dispute resolution process.
Then in August 1997, the FCC started a rulemaking which would have largely overturned the 1996 Telecommunications Act’s general preservation of local zoning authority over cell towers. It proposed to do this by having the “exception swallow the rule”, namely by allowing the FCC to review and reverse any local zoning decision which it considered tainted by concerns over RF radiation. The concept was to do this under the 1996 Act’s provision that municipalities cannot regulate cell towers under their zoning powers to the extent cell tower radiation complies with FCC rules.
In the rulemaking the FCC proposed that it could “second guess” the stated reasons given by a local zoning authority for its decisions, and could determine that their “true” basis for decision was RF radiation based (so the FCC could reverse it). The FCC also proposed that it could intervene in court proceedings to support cellular companies. Although starting with a bang, the proceeding concluded with a whimper in 2000, when it set forth procedures for petitions to the FCC claiming that municipalities violated the RF radiation exception.
Concurrently, in 1997 the TV stations got the FCC to propose a rule requiring states and communities to act on all permits and approvals needed for broadcast towers within 21 to 45 days, with failure to act in these timeframes resulting in the application automatically being granted. In other words, a “shot clock.” Their argument was that this change was needed for the transition (actually occurring in 2008-2009) to digital television and that state and local zoning and permitting would slow the transition. This rulemaking also basically came to naught.
These proceedings followed a common pattern of the industry claiming an artificial crisis and providing misinformation on municipal activities, followed by a retreat by the FCC once municipalities objected and provided information on the true state of affairs. In this regard, the claimed “crises” turned out to be far less than portrayed by the industry, municipalities educated the FCC about the important role played by local zoning and by building codes for the public health, safety, and welfare, and the FCC often appeared to realize it was on thin (or non-existent) ice legally.
This somewhat predictable cycle has been aided by Washington’s skepticism, especially in recent administrations, about the role of government (other than that of the Federal agency proposing to preempt other units of government!). It has been further aided by the fact that the telecommunications industries hire FCC alumni to lobby their former employer, which results in a somewhat self-reinforcing cycle until municipalities find their role threatened and educate the FCC on the true state-of-affairs on the matter in question.
So, although the final chapter of the cell tower industry’s 2008 zoning preemption proceeding has not yet been written, its trajectory so far seems to be following that of similar efforts in prior years. But municipalities must stay vigilant, as this will certainly not be the last time such preemption is attempted, and attempts could be made to resuscitate this proceeding.