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Posts from February 2012.

City of Arlington, Texas v. Federal Communications Commission, ___ F3d ___, 2012 WL 171473 (5th Cir.) involved certain new commission rules to assure timely, reasoned local decisions on the grant or denial of wireless communication facilities. The declaratory ruling was the result of a petition from a wireless trade association to clarify ambiguities in the law under the Telecommunications Act (“TCA”). Petitioner sought (1) time limits for acting on wireless applications for land use approval, (2) to deem the applications approved if not acted upon within a certain time, (3) a determination that if one provider already in the area, that other providers could also take advantage of the TCA to locate in the same jurisdiction and (4) the prohibition in the use of a variance to allow for the siting of a wireless facility. The FCC granted the petition in part.

Rooftop leasing to telecommunications companies can be an attractive way for a building owner or operator to increase revenues. Rents can range from $1,000 to $10,000 a month based on the strength of the location, and capital outlays for the owner are often minimal because the telecommunication company usually provides the necessary equipment. Ashok Kumar notes these and other benefits in his article, “Wireless is Going Through the Roof – Can Your Hotel Make Money on it?”

Before entering into a rooftop telecommunications lease, however, one should consider some of the traps and pitfalls that are often associated with telecommunications company lease forms. Below are a few tips for an owner or operator’s consideration when evaluating a rooftop lease.

Finally some good news in Portland’s retail real estate market.  National commercial real estate investment company, Marcus & Millichap, rated Portland No. 6 on the 2012 list of the country’s top retail real estate markets for investors.  According to the firm, Portland showed strength in retail sales and growth in high-tech manufacturing jobs, which should be good news for retail tenants and landlords.  The firm also predicted rent hikes in high traffic urban districts as retail vacancies decline.  The increase in commercial retail tenants in the area should attract real estate investors to the Portland market, providing a welcomed boost.  And with more retail tenants comes more jobs.  All good things in this economy.

View Oregonian article.

A recent New York case illustrates the importance of having a carefully drafted co-tenancy clause in a commercial lease. In Staples the Office Superstore East, Inc. v. Flushing Town Center III, L.P., a shopping center Landlord had entered into a Lease with Staples, the large office supply store, for Staples to open a new store. The Lease included a co-tenancy provision that granted Staples certain rights and remedies, including the right to terminate the Lease, in the event certain co-tenancy requirements were not met. One of those requirements was that “Home Depot (or a national retailer having not less than 100 stores and occupying not less than 100,000 square feet)” be open for business in a specified area of the shopping center. The Landlord subsequently leased the specified area to BJ’s Wholesale Club instead of Home Depot. Staples claimed this was a violation of the co-tenancy provision, triggering the termination rights that Staples had negotiated into the Lease. After the parties exchanged several threatening letters over the dispute without resolution, Staples filed suit seeking a declaratory judgment that the co-tenancy requirement was not satisfied by the Landlord and that therefore Staples could terminate the Lease.

Phoenix Development, Inc. v. City of Woodinville, 171 Wn2d 820, 256 P3d 1150 (2011), involved plaintiff developer’s challenge of the denial of its application for rezoning and preliminary plat approval following an on-the-record review of a hearings examiner recommendation of approval after an evidentiary hearing. The Council determined that there was no “demonstrated need” for the project as required by one of the rezoning criteria. Plaintiff brought a challenge under Washington’s Land Use Petition Act (“LUPA”), seeking reversal of the decision and $500,000 in damages. The trial court dismissed the case, finding some of the criteria for rezoning were not met. The Washington Court of Appeals reversed, finding some of those criteria met. Both parties sought review in the Washington Supreme Court.

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