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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Circuit Court Decision Assures Cell Tower Review In All Counties  Posted: March 14, 2007


COMMONWEALTH OF KENTUCKY

FRANKIN CIRCUIT COURT
CIVIL ACTION NO. 06-CI-01213
DIVISION I

L. GLENN SHADOAN and SUE SHADOAN
PETITIONERS

V.

KENTUCKY PUBLIC SERVICE COMMISSION
and
BLUEGRASS WIRELESS, LLC,


REPLY MEMORANDUM IN SUPPORT OF PETITIONERS’
MOTION FOR SUMMARY JUDGMENT AND RESPONSE IN
OPPOSITION TO CROSS-MOTIONS FOR SUMMARY JUDGMENT

* * * *



Come the Shadoans, by counsel, and file this memorandum in response to the Cross-Motions for Summary Judgment filed by Bluegrass Wireless, LLC (Bluegrass) and the Kentucky Public Service Commission (PSC or Commission), and in reply to the responses filed by Bluegrass and the PSC. For the reasons stated below and those contained in the initial memorandum filed by the Shadoans in support of summary judgment, the Shadoans respectfully request that Summary Judgment be entered on their behalf and that the cross-motions for summary judgment filed by Bluegrass and the PSC be denied.

SUMMARY OF ARGUMENT

The Commission’s action dismissing the application of Bluegrass Wireless for want of jurisdiction was inconsistent with KRS 278.650, which requires that the Commission regulate the siting of cellular antenna towers in those instances in which the proposed tower is to be sited in an area “outside the jurisdiction of a planning commission[.]” Since London and Laurel County Planning Commission (which disclaimed jurisdiction over the application) had not elected to plan for and regulate the siting of cellular antenna towers by adopting specific planning and zoning regulations providing for such review as required by KRS 100.987, the proposed construction of the tower is “outside the jurisdiction” of the planning commission within the meaning of KRS 278.650. The Commission’s construction of the phrase “in accordance with locally adopted planning or zoning regulations” in KRS 100.987(1) as providing that the mere prior adoption of general planning and zoning regulations under KRS Chapter 100 is sufficient to invoke regulatory responsibility on the part of a planning unit over cell tower construction and siting, and to remove the tower from Commission responsibility under KRS 278.650, violates the plain language of KRS 100.987 and cardinal rules of statutory construction, by refusing to give full effect to each of the words in KRS 100.987(1) and failing to construe both statutes in order to give full remedial effect to the statutes. The Commission’s construction of the phrase “outside the jurisdiction” as it appears in KRS 278.650, coupled with the construction of KRS 100.987, vitiates the intent of the General Assembly to assure review by some local or state agency prior to siting of new cellular antenna towers, and to retain the elective opportunity for a local planning entity to choose whether to engage in review of proposed cell towers or to leave that review with the Commission.

The Commission responds that KRS 278.650 should be read as limiting PSC jurisdiction whenever a cell tower is proposed to be located within the geographic boundaries of a planning unit regardless of whether that planning unit has adopted regulations applicable to such towers. (PSC Memorandum at 6-7). Additionally, the Commission argues that the history of cell-tower siting legislation “evidences the decentralization of the decision-making process away from the Commission and toward local authorities” and that if the siting of the proposed cell tower escapes any review for compatibility with surrounding properties that the “gap” is the result of local decision-making and not a deficiency in the law. Finally, the PSC reiterates the arguments presented in its motion to dismiss, which have been previously rejected by this Court.

Bluegrass likewise argues that KRS 278.650 should be read as limiting the Commission’s jurisdiction to areas outside of the geographical jurisdiction of a local planning unit. Additionally, Bluegrass disputes that the jurisdiction of the planning unit is dependent on adoption of regulations specific to cellular towers, and asserts that the planning unit has a mandatory duty to review cell tower application irrespective of whether it has adopted regulations addressing cell towers. (Bluegrass Memorandum at 9). Finally, Bluegrass restates its arguments that this Court rejected in overruling the motions to dismiss.

The Shadoans respond briefly below to these points.

ARGUMENT



I. THE STANDARD OF REVIEW IN THIS APPEAL IS DE NOVO SINCE THE QUESTIONS PRESENTED ARE PURELY MATTERS OF STATUTORY CONSTRUCTION AND APPLICATION

All parties agree that this appeal presents a question of the proper interpretation of statutes affecting the review of siting of cellular towers. As such, this Court reviews the interpretation and application of the law by the Public Service Commission de novo. Dunaway v. DLX, Inc., Ky.App. 113 S.W.3d 632 (2003). If the ruling of the administrative agency is based on an incorrect view of the law, the reviewing court may substitute its judgment for that of the agency. Kentucky Board of Nursing v. Ward, Ky.App. 890 S.W.2d 641 (1994). The court limits the deference shown to a construction of a law by officers of agency that has not been continued for a long period of time and which has not been formally adopted through a rulemaking or formally determined through adjudication. White v. Check Holders, Inc., Ky., 996 S.W.2d 496 (1999).

II. KRS 100.987 DOES NOT CONFER MANDATORY JURISDICTION ON PLANNING UNITS OVER CELL TOWER SITING BUT INSTEAD CONFERS DISCRETIONARY AUTHORITY TO REGULATE BY ADOPTING REGULATIONS FOR CELL TOWER SITING



In their opening memorandum, the Shadoans argued that the authority conferred on planning units under KRS 100.987(1) is elective and requires adoption by a local planning unit of planning and zoning regulations governing cell towers as a prerequisite to planning for and regulation of cellular towers. The Shadoans grounded their argument both on the plain language of the statute and in the context in which the statutory language emerged over time. The Shadoans reviewed the past legislative approaches to regulation of cell tower siting and the changes that have occurred to those laws in order to inform the Court’s analysis of the current state of the law. The legislative history reinforces that a reading of KRS 100.987(1) as requiring affirmative adoption of specific regulations for cell tower siting review by planning units in order to divest the Commission of jurisdictional responsibility is consistent not only with the rules of statutory construction, but also with the genesis of the law.

The applicable statutory provision states that:

A planning unit as defined in KRS 100.111 and legislative body or fiscal court that has adopted planning and zoning regulations may plan for and regulate the siting of cellular antenna tower in accordance with locally adopted planning or zoning regulations in this chapter.

KRS 100.987(1).

As argued in the opening memorandum, the statute is susceptible to two readings – the first, a strained reading proffered by the Commission and Bluegrass, which is that adoption of general planning and zoning regulations is sufficient to divest the Commission of jurisdiction and to place the responsibility in the local planning entity to either review an application; or the interpretation advanced by the Shadoans, which is that a planning unit elects to plan for and regulate cell tower antenna siting by adopting regulations specific to such siting. The Shadoans argued that the Respondents’ reading renders the second reference to “planning or zoning regulations” in KRS 100.987(1) a meaningless redundancy.

Neither the Commission not Bluegrass directly respond to the Shadoans’ argument that the only construction of KRS 100.987(1) that gives effect to the entire statute is that suggested by the Shadoans – that the last clause of the subsection requires adoption of cellular-specific regulations in order to activate the discretionary power conferred by subsection (1) since it explains how the planning unit may “plan for and regulate” cell tower siting. Instead, the Commission argues that KRS 278.650(1) divests the agency of jurisdiction whenever the proposed tower is within the geographic boundaries of a planning unit and that the cell tower decisions are to be made locally “in accordance with the terms of KRS Chapter 100” regardless of whether or not that planning unit has adopted specific regulations. PSC Memorandum at 11. Bluegrass similarly asserts that the jurisdiction of local planning units over cell tower siting is mandatory under KRS 100.987(2)(a) and that this duty attaches regardless of whether specific regulations are adopted. Bluegrass Memorandum at 8-9.

Unfortunately, the position that the mere existence of a local planning unit confers mandatory jurisdiction over cell tower review is facially inconsistent with KRS 100.987(1), which provides that “[a] planning unit as defined in KRS 100.111 and legislative body or fiscal court that has adopted planning and zoning regulations may plan for and regulate the siting of cellular antenna towers[,]” providing discretionary authority to that planning units but not creating a mandatory duty of review. Additionally, the reading of KRS 100.987(2)(a) as imposing a categorical and mandatory duty on all local planning units, as suggested by Bluegrass, conflicts with the plain language of 100.987(1), by converting the discretionary grant of authority to “plan for and regulate” into a mandatory obligation.

This morass is avoided and the statutory sections are harmonized by interpreting KRS 100.987(1) as the Shadoans have suggested – that the discretionary authority to “plan for and regulate” is triggered by adopting planning and zoning regulations addressing cell tower siting. So construed, the phrase in KRS 100.987(2) reading “within the jurisdiction of a planning unit that has adopted planning and zoning regulations in accordance with this chapter” does not do violence to subsection (1), but instead clarifies that the applicant is to file the application is with a local planning unit if it has adopted cellular-specific regulations. KRS 100.987(2).

The Respondents’ position that the applicant must submit an application to any local planning unit in existence in the geographic area where the tower is sought to be located even where the planning unit and legislative body have not availed themselves of the authority under KRS 100.987(1) to “plan for and regulate the siting of cellular antenna towers” by amending the local comprehensive land use plan and zoning regulations, has the effect of making mandatory what the General Assembly left discretionary with the planning commission and legislative bodies, and vitiates the discretionary nature of the grant of authority in subsection (1).

The legislative history recounted by the Shadoans further underscores the legislative intent to confer discretionary authority on the local planning units rather than a mandate. The Commission alternatively discounts the legislative history as being “largely irrelevant,” (PSC Memorandum at 6) or as being demonstrative of a “decentralization of the decision-making process.” Apparently legislative history has relevance only to the extent that it bolsters the premise of the Commission that the General Assembly was more focused on decentralizing decision-making over cell towers rather than assuring that some governing body would review siting compatibility. The Commission is mistaken in assuming that the legislative history has no or only selective relevance; for statutes are to be construed within their context and to give consistent meaning to related statutory provisions, Rogers v. Fiscal Court of Jefferson County, Ky.App., 48 S.W.3d 28 (2001) and where the intent of the General Assembly cannot be discerned from the face of the statute, “we look for guidance to outside sources, such as legislative history…. thus . . . we turn to legislative history, administrative construction, relevant case law, and [ ] statutory amendments . . . .” to assist in proper interpretation and application of the laws. White v. Check Holders, Inc., Ky., 996 S.W.2d 496 (1999).



III. KRS 278.650(1) IS HARMONIZED WITH KRS 100.987(1) AND (2) BY CONSTRUING “OUTSIDE THE JURISDICTION OF A PLANNING COMMISSION” TO REFER TO THE REGULATORY RATHER THAN GEOGRAPHIC AMBIT OF THE LOCAL PLANNING UNIT

The question of whether the phrase “which is to be located in an area outside the jurisdiction of a planning commission” refers to the regulatory or geographic ambit of the planning unit, has been fully vetted by the parties memoranda. The Shadoans believe that the latter reading is the only one that is: (a) consistent with the discretionary nature of KRS 100.987(1); (b) consistent with the phrasing of KRS 100.987(2) referring to the “jurisdiction” of the planning unit and the relation of that subsection to subsection (1); and (c) that avoids the precise situation which occurred in this instance, where no agency reviewed the compatibility of the proposed tower site with surrounding properties. The intent of the General Assembly was not merely to “decentralize” authority without regard for whether some compatibility review would occur, but was instead, as evidenced by the numerous changes effected in the statute over the years attempting to strike the right balance between state and local review, to assure that some review would occur.

The Commission relies on KRS 100.131 as evidence that the phrase “in an area outside the jurisdiction” has geographic rather than regulatory meaning. That the regulatory jurisdiction of joint city-county and regional planning units is generally coterminous with their political boundaries under KRS 100.131 is not determinative of whether the General Assembly intended the language in KRS 278.650 to refer to a geographic “area.” KRS Chapter 100 recognizes numerous types of siting actions such as utilities and public facilities that are geographically within the planning unit boundary yet outside the regulatory reach of the planning unit. See: KRS 100.324(1)-(4). The presence of a siting activity within the geographic boundary of a planning unit does not automatically subject that activity to the jurisdiction of the planning commission, particularly in this instance where the authority to regulate the class of actions (i.e. cell tower antenna siting) is made discretionary and the manner of exercise of the discretionary planning and regulatory authority is clearly states (i.e. by adopting cellular-specific regulations.



IV. THIS COURT COMMITTED NO ERROR IN OVERRULING THE MOTIONS TO DISMISS AND SHOULD DECLINE TO RECONSIDER THAT RULING



Both Respondents reiterate the arguments that were made in their Motions to Dismiss, which have been fully briefed and which were overruled by this Court. Petitioners incorporate by reference their responsive memorandum on this issue, as well as the Court’s Order, as if fully set out below, and respectfully request that this Court not reconsider that earlier ruling as the Commission suggests.

CONCLUSION

Wherefore, for the reasons stated above and in the opening memorandum, Petitioners respectfully request that this Court:

1. Grant their Motion for Summary Judgment and enter an Order determining and declaring that the Commission erred as a matter of law in concluding that it lacked jurisdiction over the application of Bluegrass Wireless LLC for a certificate of public convenience and necessity to construct a cell tower antenna in the Lily community in Laurel County, and

2. Vacate and set aside the August 8, 2006 Order as being unlawful and unreasonable, and

3. Deny the Respondents’ Cross-Motions for Summary Judgment, and

4. For any and all other relief to which Petitioners may appear entitled.


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