Providing analysis and insights for all things legislative impacting Michigan's townships
The October issue of Township Voice features:
Bills preempt local authority over public right-of-way projects
No local approval would be required for most 'small cell' wireless facilities
TIF reform proposed in Senate
Use of public funds for broadband under attack
Local governments win in 'dark stores' case
Opt-out would be required to keep ORV's off of township streets
Member input sought on 2018 MTA policy platform
Townships would face restrictions in how they handle the process and costs of asking a utility or cable company to move its facilities in the public right-of-way under a bill introduced recently in the House.
House Bill 5098, sponsored by Rep. Michele Hoitenga (R-Manton), is opposed by MTA for its preemption of local authority and has already had one hearing before the House Communications and Technology Committee.
The bill is part of a package of legislation meant to address situations in which local units of government must require utilities, cable companies and broadband providers to relocate their facilities from public rights-of-way due to construction or another activity. This could include anything from pipelines and cables to telephone poles and conduits. Under HB 5098, a township, village, city, county or state transportation department that requests or requires that an entity relocate must give the entity written notification by first-class mail or email. Generally, a one-year notice would be required, unless the local unit learned of the project or secured funding less than one year before the planned starting date. In the latter case, written notice would be required within 30 days of finding out a relocation was necessary. However, the written notice requirements would not apply in cases of an act of God or an emergency.
The township or local unit could still require the entity to get a permit for relocating its facilities, but HB 5098 would require the local unit to waive any permit fees or inspection fees. They also could not request or require the entity to conduct any study before relocating.
MTA will continue working with lawmakers, and we urge members to contact your state representative to share the negative implications of the bill.
Small cell wireless facilities could be installed on poles in your township’s right-of-way without local board approval under a bill introduced in the Senate last week.
Senate Bill 637, sponsored by Sen. Joe Hune (R-Hamburg Twp.), is opposed by MTA due to local preemption. The bill is an effort to increase access to mobile services in highly congested areas and help wireless users reach emergency services when a high number of other callers are clogging up the airwaves. However, it also steps over local authority in order to reach this goal by taking away the ability to approve most small cell wireless facilities and placing a cap on fees that can be charged.
As wireless technology continues to expand, wireless and telecommunication companies are expanding their infrastructure to meet the demand. Many townships have seen an increase in requests to build within their public rights-of-way, including distributed antenna systems, known in SB 637 as small cell wireless facilities. These small, lower-power antennas and nodes are typically located at street level on street light, power and traffic light poles.
Under SB 637, small cell wireless facilities would be classified as permitted uses and would not be subject to zoning review approval if they’re installed in the public right-of-way. The only exception would be in single-family residential areas. The structures could also be up to 10 feet above the tallest existing utility pole or 50 feet above ground level.
Local authorities could no longer approve or deny small cell facilities, but would be limited to only administering and regulating the right-of-way in a “reasonable, nondiscriminatory and competitively neutral” way that complies with the applicable law. They would be allowed to require a wireless provider to repair damage to the right-of-way caused by installation, construction or other activities.
Applications for a permit would only be required if a small cell wireless facility would exceed the height requirements. In those limited situations, however, the local unit would only have 10 days to determine if the application was complete and just 60 days to approve or deny an application. Companies could also file just one permit for installing multiple small cell wireless facilities. The bill would place limits on how much could be charged for permit fees and when fees can be charged.
Certain activities would be exempt from zoning, including modification of existing or installation of new facilities, support structures or utility poles. Anything that was subject to zoning approval would have to be approved or denied within 90 days, or 150 days for a new wireless support structure.
Additionally, an authority would be unable to charge one wireless provider a rate or fee unless it charges all other providers the same fee. The fee would be required to be competitively neutral and could not result in a double recovery—where the existing rates, fees or taxes already recover direct and actual costs of managing the rights of way. Fees can’t be based on the wireless provider’s revenue or customer counts, and cannot be unreasonable, discriminatory or violate any applicable law. They also can’t exceed the actual cost of managing the right-of-way, or exceed an annual amount equal to $20 times the number of utility poles or structures in the authority’s jurisdiction where small cell wireless facilities are installed. An authority with a fee that doesn’t comply with the bill would have 180 days from its effective date to revise its rate.
Tax increment finance (TIF) authorities would face a major overhaul under a bill being discussed in the Senate.
Senate Bill 393, sponsored by Sen. Ken Horn (R-Frankenmuth), is nearly identical to a bill introduced in the previous legislative session. If enacted, it would establish reporting requirements for TIF authorities in an effort to increase transparency and accountability, while also creating penalties for those that fail to comply. MTA took a neutral position on this bill when it was introduced last year, but is continuing to work on possible amendments.
Of Michigan’s current TIF acts, SB 393 would combine seven of them into one statute—Downtown Development Authority, Tax Increment Finance Authority, Local Development Financing Act, Nonprofit Street Railway, Corridor Improvement Authority, Water Resource Improvement TIF Authority and Neighborhood Improvement Authority. Two unused TIF acts would be eliminated—the Historic Neighborhood TIF and the Private Investment Infrastructure Funding Act. Brownfields would not be impacted.
The bill would also add or amend reporting requirements to require more transparency of TIF authorities, including maintaining a website with specific information available each fiscal year. All authorities would also be required to hold two publicly noticed informational meetings annually, which could be held in conjunction with other public meetings.
Another major piece of the legislation is penalties. Under SB 393, an authority that is notified it is not in compliance with reporting requirements would face a series of consequences. It would be prohibited from capturing any TIF revenues beyond what is needed to pay its bonded indebtedness or other obligations while not in compliance. All excess funds would have to be returned to the taxing jurisdictions. No TIF plan could be amended or approved while it’s in noncompliance. If the authority failed to report for two consecutive years, it would be indefinitely barred from capturing further TIF revenue other than what is needed to pay bonds and obligations.
Should you have any questions, please contact email@example.com. MTA will continue to update members as the bill moves through the legislative process.
Use of public funds for broadband under attack
Rural communities with no broadband access would be left with no recourse if private companies aren’t willing to build infrastructure in their community under legislation being discussed.
House Bill 5099 was introduced this month and assigned to the House Communications and Technology Committee. It appears as of press time, HB 5099 is not being pushed by the bill sponsor. However, there is discussion that the bill or similar legislation will be brought forward by another sponsor. MTA remains very concerned with this issue, which continues to have a devastating economic impact on townships without a way to provide broadband internet to their residents.
Throughout Michigan, many rural townships are stranded without internet access. No major companies will build broadband infrastructure there because the density is too sparse, or the terrain is too rocky or tree-covered to give them the return on investment they need to make the project work. In 2015, 12 percent of Michigan households did not have access to a broadband connection, and 11 percent couldn’t connect to even the recommended minimum speed.
Currently, townships in this situation are allowed to ask voters to approve a millage to pay for installing broadband infrastructure. Earlier this year, Lyndon Township (Washtenaw Co.) became the first township with a voter-approved broadband millage. Legislation is also pending—House Bill 4162, sponsored by Rep. Donna Lasinski (D-Scio Twp.)—that would allow townships to use special assessment districts to pay for broadband.
It is expected that legislation similar to HB 5099 would put a halt to these alternatives by banning a local unit from using any local, state or federal funds or loans to pay for the cost of providing internet service. The only alternative would be to enter into an agreement with a private company to provide internet service. This would leave rural townships—many of which have already reached out to private companies with no success—without an option for broadband internet.
MTA will continue to work on this issue, and we will update members.
The fight to restore fairness and equity to Michigan’s property tax system took a leap forward with a recent court decision.
This month, the Michigan Supreme Court issued an order denying Menard Inc.’s request for leave to appeal the Michigan Court of Appeals decision. The May 2016 Court of Appeals decision reversed and remanded the Michigan Tax Tribunal’s unfavorable “dark store” ruling” against the City of Escanaba. This means the Court of Appeals ruling will now stand and the case must go back to the Michigan Tax Tribunal.
This precedent-setting case validates local governments’ long-standing concerns with the practice of artificially lowering valuation by accepting comparisons between an operational store’s value and other similarly sized structures, even if they are vacant, abandoned, deed restricted or operating under a completely different use. In recent years, this practice has distorted Michigan’s property tax system, drastically reducing property values for these large corporations and giving them a huge tax advantage over smaller “Main Street” businesses in their community.
The case is an MTA Legal Defense Fund case, and MTA joined other associations in filing an amicus brief in support of the city’s position in the litigation. MTA also appreciates the 34 local units that joined to file an amicus brief.
While a legislative fix is still needed, MTA believes this case is a positive step in the right direction. “We now have a precedent and blueprint for how to successfully establish valuations on ‘big box’ stores that will withstand legal scrutiny,” MTA Executive Director Larry Merrill said.
If your township does not permit the use of off-road vehicles (ORVs) on roads, streets and highways, you would be required to opt out—a reversal of the current opt-in system—under a bill pending in the House.
House Bill 4846, sponsored by Rep. Brett Roberts (R-Eaton Twp.), awaits a vote by the House Transportation and Infrastructure Committee. While MTA testified in opposition to this bill at a recent hearing, we were able to negotiate a positive amendment. However, MTA remains concerned that HB 4846 will open roads to ORV use that locals may want closed due to safety or environmental issues.
Currently, no ORVs are allowed on a street, county road or highway unless a local unit—or, under specific conditions, the Michigan Department of Transportation (MDOT)—authorized its use. HB 4846 would flip flop the current requirements, allowing ORV use unless they’re prohibited by the local unit of government or MDOT.
Originally, the bill would have required townships to wait a year after the bill was enacted to prohibit ORVs from operating on roads within their limits. The bill’s sponsor agreed to remove that language, a move that MTA appreciates. However, MTA remains opposed as the bill would alter the current rules of engagement, leaving many communities either unaware or scurrying to opt out.
No committee action is currently scheduled for HB 4846. MTA will continue to follow this legislation and update members if it is taken up again by the committee.
MTA members play an important role in shaping the Association's legislative policy - both by voting on the MTA Legislative Policy Platform at the MTA Annual Meeting each year and also by providing suggestions and input for consideration by MTA legislative policy committees.
MTa is seeking your input for the 2018 Policy Platform. The deadline for submissions for consideration for MTA's 2018 Legislative Policy Platform is Monday, Nov. 27. Proposed policies are reviewed by MTA committees for word selection and legality, and to ensure they conform with the Association's overall goals an objectives. The proposed policy platform for 2018 will be presented for membership approval at the 2018 MTA Annual Meeting, to be held Thursday, April 26 in conjunction with the 65th MTA Annual Educational Conference & Expo in Traverse City.
You can view MTA's 2017 Policy Platform on MTA's website.
Contact the MTA Government Relations Department at (517) 321-6467 or email firstname.lastname@example.org with suggestions and/or questions.
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