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Item 3 - PH/Ord. on Cell Towers
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Item 3 - PH/Ord. on Cell Towers
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6/9/2010 12:42:10 PM
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11/17/2004 12:20:16 PM
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Agenda Item Summary
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11/22/2004
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Discussion of Specific Amendments ,. <br /> <br /> 1. Setbacks. The new setback provisions are proposed as additions to EC 9.5750(7)(d). A <br /> prohibition on siting a cell tower within 1000 feet of any public school and within 800 of any <br /> residential zone or any residence may, in some cases, prevent a wireless company from providing <br /> adequate service to a substantial portion of the City. Accordingly, it is the city attorney's opinion <br /> that federal law requires some kind of process to allow siting a transmission tower with~ the <br /> setback area if the service provider can establish that the tower is necessary to enable the <br /> provider to provide general service to the proposed service area. The variance standards in the <br /> proposed amendments to subsection (9)(c) express that standard. <br /> We have at least two concerns with the variance provisions. First, Council directed staff <br /> to prepare an ordinance providing for setbacks of a specific distance, but the availability of a <br /> variance, coupled with the large portions of the City that the setbacks make unavailable for siting <br /> cell towers, means that the setbacks are, to some extent, illusory. The variance may become the <br /> rule rather than the unusual circumstance. SecOnd, the standards for granting a variance are <br /> imprecise in nature, which makes them difficult for staffto administer, for providers to rely on as <br /> they plan the build-out of their systems, and for the community to rely upon as a standard. The <br /> city attorney consulted with a telecommunications law expert on the feasability of adopting fixed <br /> setbacks of less distance but was advised that the setbacks compatible with ability to provide <br /> service will vary with topography and the types and volume of services to be provided. <br /> <br /> 2. Codifying requirement that applicant pay for expert consultant's analysis. EC <br /> 9.5750(11') currently authorizes City staff to require an applicant for a telecommunications <br /> facility permit to pay for the City t° retain consultants to verify the applicant's statements to the <br /> extent telecommunications expertise is needed to evaluate those statements. The proposed <br /> amendment simply makes that mandatory, which is in accordance with staff s practice for the <br /> past several years. <br /> <br /> 3. Interference with emergency communications. A new subsection (1) in EC 9.5750(7) would <br /> implement Council's motion on this subject. This provision would create a substantial likelihood <br /> of legal challenge} but Council was clear about its intent to include this provision in the <br /> ordinance. Wireless Companies have challenged similar provisions in other cities' ordinances on <br /> grounds that federal law gives the Federal Communications Commission exclusive authority to <br /> regulate radio frequencies. The city.attorney advises that the vast majority of court decisions, as <br /> well as several decisions from the FCC, have agreed with those challenges and have voided local <br /> governments, attempts to regulate any aspect of radio frequency interference, Accordingly, the <br /> <br /> · city attorney will recommend that Council remove this provision from the proposed ordinance. <br /> <br /> Options for Planning Commission. <br /> The Commission may: <br />· 1. Recommend that the City Council adOpt the ordinance as drafted. <br /> <br /> IV-2 <br /> <br /> <br />
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