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EUGENE CITY COUNCIL AGENDA ITEM SUMMARY Pubic Hearing: An Ordinance Concerning Cell Towers, and Amending Section 9.9750 of the Eugene Code, 1971 Meeting Date: November 22, 2004 Agenda Item Number: 3 Department: Planning and Development Staff Contact: Susan Muir and Jerome Lidz www. ci. eugene, or. us Contact Telephone Number: 682-5208 or 682-5080 ISSUE STATEMENT This is a public hearing on proposed amendments to EC 9.5750, regulating the siting of cell towers. BACKGROUND At a work session on April 14, 2004, the City Council directed staff to initiate amendments to EC 9.5750 to 1) extend setbacks for new cell towers to 1000 feet from the nearest school and 800 feet from the nearest residence; 2) codify the requirement for independent consultant review and verification; and 3) codify zero tolerance for interference with public safety communications. The City Attorney drafted the proposed amendments and advised the Planning Commission about legal risks associated with two of the three provisions. The Planning Commission recommendation follows the discussion below which summarizes the recommendations by subject: 1. Setbacks. Federal law places substantial restrictions on cities' ability to regulate siting of telecommunications facilities, but in many cases the extent of those restrictions is not well settled. It is clear, however, that cities may not adopt regulations that either "prohibit or have the effect of prohibiting the provision of personal wireless services." The new setback provisions, proposed as additions to EC 9.5750(7)(d), would prohibit siting a cell tower within 1000 feet of any public school and within 800 of any residential zone or any residence. In some cases, those provisions may prevent a wireless company from providing adequate service to a substantial portion of the City. Accordingly, it is the City Attorney's opinion that federal law requires some kind of process to allow siting a transmission tower within the setback area if the service provider can establish that the tower is necessary to enable the provider to provide general service to the proposed service area. The variance provisions in the proposed amendments to subsection (9)(c) incorporate that standard. Staff has at least two concerns with the setback and variance provisions. First, the availability of a variance, coupled with the large portions of the City that the setbacks make unavailable for siting cell towers, means that the setbacks are, to some extent, illusory. The variance may become the rule rather than the unusual circumstance. Second, the standards for granting a variance are imprecise in nature, which makes them difficult for the community to rely upon as a L:\CMO\2004 Council Agendas\M041122\S0411223.doc