In this Issue

Federal Government

Some Modern Day Musings on the Police Power

The police power is commonly thought of as the regulatory power of the state. Sometimes we are left with the impression that zoning and the police power are one and the same. “The city will lose its police powers if it does not adopt a comprehensive plan!” Various planners and attorneys repeated this statement to me following the passage of Wisconsin’s comprehensive planning law in 1999. The 1999 law required that, beginning on January 1, 2010, certain local government actions, like zoning, would need to be consistent with the local unit of government’s comprehensive plan.2 The logic of the argument that the city must adopt a comprehensive plan in order to maintain its police powers was that the consistency requirement made the comprehensive plan’s existence a prerequisite to having a zoning ordinance. In other words, if a local government did not have a comprehensive plan by January 1, 2010, the local government would not be able to have a zoning ordinance.

Real Property Trust and Estate

Recent Developments in Land Use Regulations of Cellular Telecommunications Facilities

The Telecommunications Act of 1996 (“TCA”) enables, but limits, local zoning authority for wireless facilities. The TCA provides: “nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”1 However, the TCA limits the powers of local zoning authorities in several ways: (1) no regulation can “unreasonably discriminate among providers” or “prohibit or have the effect of prohibiting the provision of personal wireless services”; (2) “[a] State or local government” must act “within a reasonable period of time after [a] request” to “place, construct, or modify” a facility has been filed by a wireless provider; (3) “[a]ny decision by a State or local government . . . to deny a request . . . shall be in writing and supported by substantial evidence contained in a written record”; (4) “[n]o State or local government [can] regulate personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications] Commission’s (“FCC”) regulations”; and (5) “[a]ny person adversely affected by any final act[] or failure to act by a State or local government . . . may, within 30 days,” commence a court action.2