Towns Fight AT&T Over Eminent Domain > Zoning is the answer

Zoning is the answer

Granted.

Except that in rural areas, where there are no such local zoning requirements - unless they are set/held by county regulations.

How many of these boxes do you think will be built in rural areas? ATT (or rather SBC) is notorious for cherry picking their service areas.

reply to listenup
I live in a very rural area, our zoning is pretty damn strict to keep it rural.

As well, what would be the point of cherry picking if you built this thing in a rural area? You think cows want FIoS

reply to AnonProxy
Except when the state pre-empts the local authority (home rule) from doing so, as is written in the bill before the Illinois House now.

12 (220 ILCS 5/21-1301 new)
13 Sec. 21-1301. Home rule.
14 (a) It is declared to be the law of this State, pursuant to
15 paragraph (h) of Section 6 of Article VII of the Illinois
16 Constitution, that the establishment of standards and
17 procedures for, and the granting of, all cable service and
18 video service authorizations after the effective date of, and
19 as provided in, this Article are exclusive State powers and
20 functions that may not be exercised by a home rule unit.
21 (b) With respect to the other provisions of this Article
22 that are not subject to subsection (a), a home rule unit may
23 not impose restrictions or limitations that are inconsistent
24 with those other provisions of this Article. This subsection is
25 a limitation under subsection (i) of Section 6 of Article VII

HB1500 - 44 - LRB095 09362 MJR 31669 b

1 of the Illinois Constitution on the concurrent exercise by home
2 rule units of powers and functions exercised by the State.

--
Peter I. Collins
Information Technologies Manager
City of Geneva, Illinois
pcollins@geneva.il.us
630.232.1743

That has nothing to do with zoning, it, only and specifically, enumerates service.

"all cable SERVICE and video SERVICE authorizations after the effective date of, and as provided in, this Article are exclusive State powers and functions that may not be exercised by a home rule unit. "

Installing a structure is not service, that's construction.]

Issues:
In your town there is probably a minimum setback requirement, no building allowed in the setback. Your town also has a town or city right of way. depending on the town, it can be as little as 3 feet to something like mine of 20 feet. The Town has an implied right of way even though the homeowner pays the taxes on the property. Some towns exercise easements and taking if they do not have a right of way. Whatever...but to that end if someone were to build on an easement or right of way or have full ownership of the property, they would still have to secure a permit. If the building of a structure is contrary to the provisions of the local zoning, it can be denied.
If, for example, putting a box like this on a corner is considered a safety issue (blocks the view of traffic), if it's considered blight, or increasing density, or contrary to the public well being, it can be denied.

Where I am from, we can limit telephone poles, transformer boxes, anything that would sit in the town right of way on TOWN ROADS. We can not limit what is placed on state roads save if they object naturally violate our town zoning by-laws.

Further in historical districts wetlands areas, HEL area, wetlands, regulations are even more strict.
If they don't let you regulate the service, regulate the building of the actual structure.

reply to AnonProxy
Wouldn't work under the proposed law in Illinois.
It blocks local government from using zoning to block deployment.

reply to AnonProxy
Subsection (a) has nothing to do with zoning. Read subsection (b) closer.

(b) With respect to the other provisions of this Article
22 that are not subject to subsection (a), a home rule unit may
23 not impose restrictions or limitations that are inconsistent
24 with those other provisions of this Article. This subsection is
25 a limitation under subsection (i) of Section 6 of Article VII
1 of the Illinois Constitution on the concurrent exercise by home
2 rule units of powers and functions exercised by the State.

It is a specific limitation on the home rule power disallowing a home rule unit from imposing any restrictions or limitations (like zoning) that are inconstitent with any provisions of the article other than the provisions on the granting of cable service and video service authorizations (because that portion is handled by subsection (a) which not only disallows inconsistent actions by home rule units, but forbids home rule units from taken consistent actions as well).
--
ISCABBS - the oldest and largest BBS on the Internet
telnet://bbs.iscabbs.com
Professional Geographer
Geographic Information Science researcher

reply to marigolds
As stated above, it only talks about the negotiation of service, ie franchise, not construction.

Following the both of your examples, if a cable company wanted to build a building to hose all their equipment, maybe some offices, etc. They would not be required to secure a building permit because of this agreement. I know for a fact that is not the case.

When is says service, it means service. One could argue that these boxes are incidental to service, but it doesn't say that either nor does it say anything about structures.

More to the point, exercising zoning that would equal for all uses (not allowing building in a setback) is not necessarily inconsistent with the the right of the company to exercise their "right" of land ownership.

reply to marigolds
Again, it is the balance of the right to zone appropriately v. the right to the exercise of commerce afforded by this legislation. To that end do you REALLY think that it is intended that zoning gets tossed out the window just because a cable company has the right to take limited property? Right to take property is again not the right to use property. It the same old apportionment argument all over again.

reply to AnonProxy
No, it does apply to constuction.
That is why it amends 735 ILCS 30/15‑5‑25, the eminent domain powers statutes.
»www.ilga.gov/legislation/BillSta···51&GA=95

Here is the full bill:
»www.ilga.gov/legislation/fulltex···Session=
Scroll down to section 94
It amends the public utilities act (Section 15-5-25 that I refernced above) to include eminent domain for cable or video service construction by holders of state issued authorizations for cable or video service.

The heart of the matter though is in Sec 21-1201 subsection (2) (starting the bottom of page 33)

9 (2) Any area in this State in which the Commission has
10 granted a cable service or video service authorization pursuant
11 to this Article, no property owner, condominium association,
12 managing agent, lessee, or other person in possession and
13 control of any improved or unimproved real estate located
14 within such area shall forbid or prevent the holder of a
15 State-issued authorization from entering upon that real estate
16 for the purpose of and in connection with the construction or
17 installation of that cable service or video service facilities,
18 nor shall any such property owner, condominium association,
19 managing agent, lessee, or other person in possession or
20 control of that real estate forbid or prevent the holder of a
21 State-issued authorization from constructing or installing
22 upon, beneath, or over the real estate, including any buildings
23 or other structures located thereon, hardware, cable, fiber,
24 equipment, materials, or other cable service or video service
25 facilities used by the holder of a State-issued authorization
26 in the construction and installation of those cable service or
1 video service facilities; provided, however, that the owner of
2 any such real estate may require, in exchange and as
3 compensation for permitting the construction or installation
4 of cable service or video service facilities upon, beneath, or
5 over such real estate, the payment of just compensation by the
6 holder of a State-issued authorization which provides that
7 cable service or video service, that sum to be determined in
8 accordance with the provisions of subsections (3) and (4) of
9 this Section

And further backed up on page 37
9 (5) Neither the giving of a notice by the owner under
10 subsection (3), nor the assertion of a specific claim, nor the
11 initiation of legal action to enforce such claim, as provided
12 under subsection (4), shall delay or impair the right of the
13 holder of the State-issued authorization to construct or
14 install cable service or video service facilities within or
15 upon any building described in subsection (1) or upon, beneath,
16 or over real estate described in subsection (2).

This section immediately precedes the home rule section discussed above.
This is about construction.
--
ISCABBS - the oldest and largest BBS on the Internet
telnet://bbs.iscabbs.com
Professional Geographer
Geographic Information Science researcher

reply to AnonProxy