Item 3 - PH/Ord. on Cell Towers - Laserfiche WebLink

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Jerome Lidz - 3 - · August 23, 2004 the setback requirements or bX'e{iminating the separation requirement where c°/{ocation on an existing transmission structure is precluded by the setbacks. · The proposednew 800-foot setback from residentialzones contTicts with existing subsections {5)(a) and (g)(d). Existing subsection (5)(a) permits the construction of new trans..mission toWers in the R- ! zone with a conditional use permit. The 800-foot setback requirement, however, effect/ve~preciudes the construction of new transmission towers in the R- 7 zone. Similar~, exisD'ng subsection (g)(d) permits the City to grant a variance from the R- ! zone'height restriction up to a maximum height o,f TO0 feet if it w/l{ eiirninate the need for additional transmission tower. Under the proposed new setback restriction, hoWever, a wire/ess carrier may not increase the height oran exlsdng transmission tower in the R- f zone. The provisions regarding variances from the setback requirements are too stringent, (discussed below), to resolve these con#/cts. . (i) /..nterference with Emet~lency Communications, No new transmission tower, nor an Increase in the height o£an exis~'n~ transmission tower, shall be permitted unless the applicant can demonstrate to . the satisfac~'on o£the ci~y that the tower willnot interfere with or have any eYfect on emer~ency'communication services, A ~-i~VS Comment,¢: Federa/ /awpreempts the City of Euge~e from regulating the construction or operation of wire/ess communica'tion £aci[ities based on potentia{ interference between wireJess communication, facilities and other devices, inciuding pub{ic safety devices used for emergency communication. The Federa} Communications Commission has excJusive juris~'ction over radio frequency interference issues..See, ag., Freeman v. Bur{ington Broadcasters, 204 F.3d 311, 326 ~2nd Cir. 2000~; Southwestern Bell V~reless, Inc. v. Johnson County Board O£County Commissioners, 1~.~ ~.3d 11~, 1 ~0 ~l~h Cir., ~1; Anne ArundelCounty, ~CC ~A 03- ~1 ~6, Memorandum ©pinion and ~rder IJuly ], 20031. As the Court explainedin Freeman: Congress did not intend by this provision [47 U.$.C. §332(c)(7)] to repeal the FCC's exclusive jurisdiction over· RF interference complaints. The statute's . preservation 'of local power extends only to 'placement, construction and modification' of 'facilities.' In light of the FCC's pervasive regulation of broadcasting technology, this provision is most reasonably understood as permitting localities to exercise zoning power based on matters not directly regulated by the FCC. We conclude that allowing local zoning aUthorities to condition construction and use permits on any recluirement to eliminate or remedy RF interference ands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Freeman, 204 F.3d at 323 and 325. As a result, the City of Eugene/acks a~thority to assert regulatory authority over w/re/ess facilities based on potent/a/interference with emergency Y:\WPV~TI'~EUGENE~COMMENT LTR 082304.DO¢ J~ ~'4 7