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

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Discussion of Specific Amendments 1. Setbacks. The new setback provisions are proposed as additions to EC 9.5750(7)(d). A prohibition on siting a cell tower within 1000 feet of any public school and within 800 of any residential zone or any residence may, in some cases, 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 standards in the proposed amendments to subsection (9)(c) express that standard. We have at least two concerns with the variance provisions. First, Council directed staff to prepare an ordinance providing for setbacks of a specific distance, but 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 staff to administer, for providers to. rely on as they plan the build-out of their systems, and for the community to rely upon as a standard. The city attorney consulted with a telecommunications law expert on the feasability of adopting fixed setbacks of less distance but was advised that the setbacks compatible with ability to provide service will vary with topography and the types and volume of services to be provided. 2. Codifying requirement that applicant pay for expert consultant's analysis. EC 9.5750(11) currently authorizes City staffto require an applicant for a telecommunications facility permit to pay for the City to retain consultants to verify the applicant's statements to the extent telecommunications expertise is needed to evaluate those statements. The proposed amendment simply makes that mandatory, which is in accordance with staff's practice for the past several years. 3. Interference with emergency communications. A new subsection (1) in EC 9.5750(7) would implement Council's motion on this subject. This provision would create a substantial likelihood of legal challenge, but Council was clear about its intent to include this provision in the ordinance. Wireless companies have challenged similar provisions in other cities' ordinances on grounds that federal law gives the Federal Communications Commission exclusive authority to regulate radio frequencies. The city attorney advises that the vast majority'of court decisions, as well as several decisions from the FCC, have agreed with those challenges and have voided local governments' attempts to regulate any aspect of radio frequency interference. Accordingly, the city attorney will recommend that Council remove this provision from the proposed ordinance. Options for Planning Commission. The Commission may: 1, Recommend that the City Council adopt the ordinance as drafted.