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A major issue facing planners of Intelligent Transportation Systems (“ITS”) is what role, if any, municipalities will have in planning, deployment, operation and control of the system. Cities are understandably concerned that ITS will run roughshod over local zoning laws and will cause cities to lose control of their own streets. Cities are also concerned about maintenance of ITS infrastructure and related liability issues. Finally, cities are concerned that they will lose their ability to use a portion of ITS infrastructure for their local, institutional network if they are not involved in the planning and deployment stages. Inextricably entwined in these issues are various legal concerns about local control, including zoning requirements, local ownership of rights-of-way, local franchising rights and equal access issues under the 1996 Telecommunications Act.
Unless cities directly participate in the planning and deployment process, ITS developers will have to either comply with or legally bypass local zoning requirements. In most cases, private developers are required to comply with zoning requirements before building new structures. However, the issue is less clear in the case of a private company that proposes to build facilities on public land for both public and private use. Numerous states have passed legislation that authorizes leasing rights-of-way along state highways to both public and private developers. These statutes expressly require that the proposed development comply with local zoning requirements. In states where there is no statute directly on point, however, it will be up to the courts to decide whether principles of sovereign immunity from local zoning should come into play.
At the ITS Legislative Conference, in Washington, D.C.