PSC Order In Cell Tower Case Appealed

COMMONWEALTH OF KENTUCKY
FRANKIN CIRCUIT COURT
CIVIL ACTION NO. _________
DIVISION _____

L. GLENN SHADOAN and SUE SHADOAN
550 Shackle Road, London, Kentucky 40744,
PETITIONERS

V. COMPLAINT AND PETITION FOR REVIEW

KENTUCKY PUBLIC SERVICE COMMISSION

And

BLUEGRASS WIRELESS, LLC, RESPONDENTS

* * * *

INTRODUCTION

This complaint and petition for review seeks judicial review pursuant to KRS 278.410(1) of an August 8, 2006 Order of the Public Service Commission (Commission) denying the Motion by L. Glenn and Sue Shadoan for Rehearing in the case of In the Matter of: Application of Bluegrass Wireless, LLC for Issuance of A Certificate Of Public Convenience And Necessity To Construct A Cell Site (LILY II) In Rural Service Area #6 (Laurel) Of The Commonwealth of Kentucky, PSC Case No. 2005-00320. The Motion For Rehearing had been filed by Intervenors L. Glenn and Sue Shadoan, seeking a rehearing by the Commission of its June 27, 2006 Order dismissing Case 2005-00320 for lack of jurisdiction under KRS 278.650 to consider the application.

For the reasons stated below, Petitioners L. Glenn and Sue Shadoan urge this Court to vacate and set aside the Commission?s August 8, 2006 Order on the ground that it is unlawful and unreasonable, and is otherwise contrary to law.

GROUNDS UPON WHICH REVIEW IS SOUGHT AND ASSIGNMENT OF ERRORS

1. This complaint and petition for review is filed pursuant to the provisions of KRS 278.410, which provides in relevant part that: (1) Any party to a commission proceeding . . . may, within thirty (30) days after service of the order, or within twenty (20) days after its application for rehearing has been denied by failure of the commission to act, or within twenty (20)days after service of the final order on rehearing when a rehearing has been granted, bring an action against the commission in the Franklin Circuit Court to vacate or set aside the order or determination on the ground that it is unlawful or unreasonable. Service of a commission order is complete three (3) days after the date the order is mailed. Notice of the institution of such action shall be given to all parties of record before the commission.

2. The final Order from which this complaint and petition for review is taken was entered on August 8, 2006. A copy of that order is affixed to this complaint and petition for review and is incorporated herein by reference.

3. This appeal is timely filed within the meaning of KRS 278.410(1), since it is filed within the statutory period provided by that statute, having been filed within the twenty (20) day period following the three (3) day period prescribed by statute after which service of the Order is deemed to be complete.

4. This court has jurisdiction to hear this petition for review pursuant to KRS 278.410(1). The August 8, 2006 Commission Order states that it is a final and appealable order, and it is an “order of the Commission” within the meaning of that statute.

5. Petitioners L. Glenn and Sue Shadoan (The Shadoans) were Intervenors in the underlying administrative process from which this appeal is taken.

6. The Shadoans are landowners whose property is located contiguous to that on which the proposed cell tower is to be constructed in London, Laurel County, Kentucky.

7. The Shadoans are persons whose interests as property owners are or may be adversely affected by the Commission’s August 8, 2006 Order denying their request for rehearing of the June 27, 2006 Order.

8. As parties who were granted the status of full Intervenors in Case 2005-00320 by the Commission on October 7, 2005, the Shadoans are among those parties authorized by KRS 278.410(1) to maintain an action seeking review of the August 8, 2006 Order.

9. The Commission, an agency of the Commonwealth of Kentucky, is named as respondent as directed by KRS 278.410(1) and the Commission Chair and Executive Director will be served in addition to service on the Attorney General as directed by Kentucky Rule of Civil Procedure 4.04(6).

10. Bluegrass Wireless LLC, a party of record in the underlying administrative proceeding, is likewise named respondent and service will be effected in the manner directed by the Civil Rules. Additionally, courtesy copies of this complaint and petition for review will be mailed to counsel of record in the underlying administrative proceeding and to the registered office of Bluegrass Wireless LLC.

11. On September 2, 2005, Bluegrass Wireless made application to the Public Service Commission for approval of a cell tower site to be constructed on Shackle Road in London, Laurel County, Kentucky. In response to a notice sent them concerning the application, on August 22, 2005, L. Glenn and Sue Shadoan, whose property is contiguous to that on which the cell tower was proposed and whose home is within 500 feet of the proposed tower, moved to intervene, and in response to a request by the Commission staff to identify the specific grounds for seeking intervention, the Shadoans provided a letter dated September 27, 2005, identifying those concerns. The Commission granted full Intervenor status to the Shadoans by Order dated October 7, 2005.

12. On January 4, 2006, Bluegrass Wireless moved to hold further proceedings before the Commission in abeyance for a ninety-day period in order that the applicant might “evaluate the appropriate forum within which to pursue this matter.” That motion was granted by the Commission, and by Order dated January 11, 2006, the matter was held in abeyance until April 6, 2006, with Bluegrass Wireless directed to advise the Commission in writing no later than April 10, 2006 as to the status of the company’s position on whether the Commission had jurisdiction over the issuance of a Certificate of Public Convenience and Necessity for the proposed tower.

13. By letter dated April 10, 2006, counsel for Bluegrass Wireless notified the Commission that “Bluegrass Wireless has reviewed the matter with legal counsel and has determined that the Public Service Commission does not have jurisdiction over this matter [and that t]he case should therefore be dismissed by order dismissing the case for lack of subject matter jurisdiction.”

14. In response to the April 10, 2006 letter, the Shadoans provided a memorandum in opposition to the suggestion of dismissal for want of jurisdiction, and argued that this Commission does have subject matter jurisdiction pursuant to KRS 278.650 since the Laurel County Planning and Zoning Commission had not elected to assert jurisdiction over the siting of cellular antenna towers in that county pursuant to KRS 100.987(1) by adopting zoning regulations for siting of cell towers.

15. The Intervenors made two legal arguments in support of PSC jurisdiction – first, that the phrase “outside the jurisdiction of a planning commission” in KRS 278.650 referred to the regulatory ambit of a planning unit rather than merely to a geographic area.

16. The Shadoans argued that this interpretation is necessary to avoid the creation of a regulatory gap where neither PSC review nor local planning review would occur for towers proposed within the boundaries of those planning units that have not elected to avail themselves of the authority over the siting of cellular antenna towers pursuant to KRS 100.987(1).

17. Intervenors also argued that where a local planning commission has not elected to adopt planning and zoning regulations specific to cell tower siting pursuant to the discretionary language of KRS 100.987(1), the authority to review the cell tower siting rested by virtue of KRS 278.650 with the PSC since KRS 100.987 requires adoption of planning and zoning regulation specific to cell towers as a prerequisite to attachment of planning commission jurisdiction.

18. Bluegrass Wireless responded in a May 24, 2006, filing, asserting that the London and Laurel County Planning Commission did have jurisdiction over cell tower applications since the Planning Commission had adopted general planning and zoning regulations in accordance with KRS Chapter 100 and “[t]he statutes do not require promulgation of cellular communications-specific regulations.” According to the company, “[n]o language in any of [the relevant statutes] mandates that the local planning unit adopt regulations specific to cellular communications systems before it may review applications[,]” and that “where a cellular provider proposes to build a cell site in an area with a local planning unit that has adopted planning and zoning regulations, it must submit its application to that local planning unit so that the local planning unit may review the application in light of the planning and zoning regulations already in place.” (Emphasis in original).

19. By Order entered and served by mail on June 27, 2006, the Commission granted the request of Bluegrass Wireless to dismiss the case for lack of jurisdiction. The Commission determined that the phrase “outside the jurisdiction of a planning commission” as found in KRS 278.650 described the geographical scope of the applicable planning commission’s jurisdiction rather than its subject matter jurisdiction, and that although the planning commission in Laurel County “apparently has not yet availed itself of the grant of authority set forth in KRS 100.987(1),” the “mere creation of a county-wide planning commission effectuates the General Assembly’s intent to promote the local regulation of cell phone tower placement.”

20. The Shadoans filed a motion and memorandum in support of motion for rehearing on July 20, 2006. After receiving a response from Bluegrass Wireless LLC in opposition to the motion for rehearing, the Commission entered an Order on August 8, 2006 denying the motion for rehearing.

21. This appeal followed.

22. The Commission’s August 8, 2006 Order declining to rehear the June 27, 2006 dismissal of the case on the basis of a lack of jurisdiction under KRS 278.650, was unlawful and unreasonable.

23. Among the reasons that the August 8, 2006 Order was unlawful and unreasonable are:

a. The Commission’s Order is 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.

b. The Commission’s Order construing the mere adoption of general planning and zoning regulations under KRS Chapter 100 as being 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 all of the words in KRS 100.987(1) and failing to construe both statutes in order to give full remedial effect to the statutes. In holding that the existence of general planning and zoning regulations within a community is sufficient to trigger application of KRS 100.987 and to remove the cell tower siting application from the purview of the Commission under KRS 278.650, the Commission fails to give full effect to the language of KRS 100.987(1), and interprets both that statute and the phrase “outside the jurisdiction” in KRS 278.650 in a manner that vitiates the intent of the General Assembly to assure review by a local or state agency prior to siting of new cellular antenna towers.

c. The Commission’s Order was otherwise arbitrary, capricious, and was unlawful and unreasonable.

CONCLUSION AND REQUEST FOR RELIEF

Wherefore, for the reasons stated above, Petitioners respectfully request that this Court:

1. Accept jurisdiction over this complaint and petition to review the Commission’s August 8, 2006 Order;

2. Determine and declare that the Commission erred as a matter of law in concluding that the Commission 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;

3. Vacate and set aside the August 8, 2006 Order as being unlawful and unreasonable, and directing the Commission to assert jurisdiction over the proposed cell tower construction and siting; and

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

Respectfully submitted,

Tom FitzGerald
P.O. Box 1070
Frankfort, Ky. 40602
(502) 875-2428

Counsel for Petitioners

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