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Home My WebLink AboutItem 3 - PH/Ord. on Cell TowersEUGENE 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 standard, for providers to rely on as they plan the build-out of their systems, and for staff to administer. The City Attorney consulted with a telecommunications law expert on the feasibility 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 staff to 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 recent practice. 3. Interference with emergency communications. A new subsection (1) in EC 9.5750(7) would implement the council's motion on this subject. 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. The Planning Commission considered the proposed amendments at a work session on October 11, 2004, and again at a public hearing and work session on November 8, 2004. The Planning Commission watched the tape of the council item that directed these proposed amendments, considered maps prepared to show the area that would be regulated by the new setbacks, heard testimony by the public and service providers and thoroughly reviewed the staff recommendation. Given the much prescribed assignment, the council may be not be interested in following the Planning Commission recommendation. The Planning Commission deliberated and discussed how to proceed given the strict direction coupled with the testimony received and thought broadly about recommending measures to promote the public interest, health, safety, comfort, convenience and welfare of the city. Thus, the Planning Commission voted unanimously to recommend that the council adopt the amendment to require applicants to cover the City's cost of hiring consultants to assist with review of the application (Item #2 above). The Planning Commission also voted unanimously to recommend the council add, with full funding, a high priority work program item to the Planning Division work program to thoroughly review Section 9.5750 of the Eugene Code regarding cell tower siting provisions and criteria which included, but were not limited to, aesthetics, effect on property values, appropriate setbacks, upcoming technology, stealth design, co-location on school property and clear and certain language in the code. RELATED CITY POLICIES SUSTAINABLE COMMUNITY DEVELOPMENT - A community that retains a high quality of life and a healthy economy, effectively links land use and transportation planning, and successfully manages growth and change in the urban environment L:\CMO\2004 Council Agendas\M041122\S0411223.doc HEALTHY NATURAL AND BUILT ENVIRONMENT - A community that conserves and enhances the natural environment and provides an attractive and healthy place to live COUNCIL OPTIONS This is a public hearing. No action is required. The council has a deliberation time set for December 6, 2004. Options to consider during deliberation include: 1. Approve the draft ordinance as proposed in the attached ordinance that would amend the City Code 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. 2. Approve the Planning Commission recommendation to codify the requirement for independent consultant review and verification. 3. Approve the Planning Commission recommendation to add, with full funding, a high priority work program item to the Planning Division work program to thoroughly review Section 9.5750 of the Eugene Code regarding cell tower siting provisions and criteria which included, but were not limited to, aesthetics, effect on property values, appropriate setbacks, upcoming technology, stealth design, co-location on school property and clear and certain language in the code. 4. Not amend the Eugene City Code 9.5750 at this time. CITY MANAGER'S RECOMMENDATION The City Manager recommends the council conduct the public hearing and continue with deliberation on December 6 and, under option 2 above, approve the Planning Commission recommendation to codify the requirement for independent consultant review and verification. The City Manager also recommends that discussion regarding funding and prioritizing this work program item occur during subsequent discussions regarding the entire Planning Division work program in light of Measure 37. SUGGESTED MOTION No motion is needed; this is a public hearing only. ATTACHMENTS A. Draft ordinance to amend EC 9.5750 B. Planning Commission record, including staff reports and all written testimony received FOR MORE INFORMATION Staff Contact: Susan Muir or Jerry Lidz Telephone: 682-5208 or 682-5080 Staff E-Mail: susan. 1. muir~ci, eugene, or. us or jerome, s. lidz~harrang, com L:\CMO\2004 Council Agendas\M041122\S0411223.doc ATTACHMENT A Draft #2 (10/1/04) ORDINANCE NO. AN ORDINANCE CONCERNING CELL TOWERS, AND AMENDING SECTION 9.9750 OF THE EUGENE CODE, 1971. THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Subsection (7)(d) of Section 9.5750 of the Eugene Code, 1971, is amended, a new Subsection (7)(I) is added thereto, Subsection (9)(c) is amended, and a new Subsection (9)(d) is added and the current (9)(d) and (9)(e) are relettered (9)(e) and (9)(0 respectively, and Subsection (11) is amended, to provide: 9.5750 Telecommunication Devices-Siting Requirements and Procedures. (7) Standards for Transmission Towers and Antennas. Installation, construction or modification of all transmission towers and antennas shall comply with the following standards, unless a variance is obtained pursuant to the provisions of subsection (9) of this section: (d) Setback. [The following o,~,~,o,4, o ~,,.,, adjacent ..... '*"" ..... ~ o,4~ .... , o,,,~,~,o oho. ~,,~ required u] Unless a variance is granted pursuant to [the provisions o~ subsection (9) of this section, new transmission towers, and any existing transmission tower being modified to increase its height, shall be set back no less than all of the following distances, if applicable: 1. 1000 feet from a public school; 2. 800 feet from all residentially zoned property and from the nearest dwelling; ~-3. If located within a PL, S, C-2, C-3, C-4, I-1, I-2, or I-3 zone, [ne that] as required by this land use code or the provisions applicable to the S zone[~]; 24. If located within an [R !,] C-lk] or GO zone, the [transmission number of feet that is equal to the height of the [transmission] tower, from adjacent property lines[~]; 35. If located in the [R !,] PL, C-1 [and] or GO zone[s], [transmission the number of feet that is equal to the height of the tower, from adjacent public streets; and 6. In all other zones, [the setback from adjacent public streets shah be a minimum o~ 25 feet from adjacent public streets. Ordinance- ] L:\CMO\2004 Council AgendaskM041122\S0411223-attA. doc ATTACHMENT A Draft #2 (10/1/04) (I) Interference with Emerqency Communications. No new transmission tower, nor an increase in the height of an existing transmission tower, shall be permitted unless the applicant can demonstrate to the satisfaction of the city that the tower will not interfere with or have any effect on emergency communication services. (9) Variance. (c) The city may grant a variance to the setback requirements of subsection (7)(d)? and 2 only if the applicant demonstrates to the city's satisfaction: 1. That the applicant is unable to provide an adequate level of telecommunications services to the proposed service area and also comply with the setback requirements; and 2. That the requested setback variance complies as closely as possible with the required setback requirements for this location or any other location in the city from which it is possible to provide comparable service. (d) The city may grant a variance to the setback and undergrounding requirements of subsections (7)(d)3. 4., 5 and 6, or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. (de) The city may grant a variance to the 75 foot height limitation in the R-1 zone to a maximum of 100 feet providing the applicant demonstrates that a transmission tower taller than 75 feet will directly eliminate the need for 1 or more additional transmission towers in an R-1 zone. (ef) If the proposed transmission tower or ancillary facility requires site review or a conditional use permit, the request for variance shall be considered as part of the site review or conditional use permit process. If the proposed transmission tower or ancillary facility is an outright permitted use, the request for a variance shall be processed pursuant to Type II application procedures beginning at EC 9.7200 General Overview of Type II Application Procedures except that the decision shall be based on the criteria in this section. (11) Fees. Notwithstanding any other provision of this code, the city manager [may] shall require, as part of application fees for building or land use permits for telecommunication facilities, an amount sufficient to recover all of the city's costs in retaining consultants to verify statements made in conjunction with the permit application, to the extent that verification requires telecommunications expertise. Ordinance - 2 L:\CMO\2004 Council AgendaskM041122\S0411223-attA. doc ATTACHMENT A Draft #2 (10/1/04) Section 2. The City Recorder, at the request of, or with the concurrence of the City Attorney, is authorized to administratively correct any reference errors contained herein or in other provisions of the Eugene Code, '197'1, to the provisions added, amended, or repealed herein. Passed by the City Council this Approved by the Mayor this __ day of ,, 2004 __ day of ,2004 City Recorder Mayor Ordinance - 3 L:\CMO\2004 Council AgendaskM041122\S0411223-attA. doc ATTACHMENT B AGENDA ITEM SUMMARY October 12, 2004 To: Eugene Planning Commission From: Eugene Planning Division; City Attorney's Office Re: Amendments to Cell Tower Siting Ordinance Action Requested: To make a recommendation to the City Council regarding proposed amendments to EC 9.5750 (Telecommunications Devices- Siting Requirements and Procedures) Brief Summary of Agenda Item: At a work session on April 14, 2004, the City Council adopted a motion 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 residences; (2) codify the requirement for independent consultant review and verification; and (3) codify zero tolerance for interference with public safety communications. Background: The current version of EC 9.5750 is substantively the same as Council adopted in Ordinance 20078 in 1997, shortly after Congress adopted the Federal Telecommunications Act in 1996. The ordinance responded to an increasing number of requests to construct cell towers and related facilities that accompanied the rapid growth of cellular phone service. 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 dear, however, that cities may not adopt regulations that either "prohibit or have the effect of prohibiting the provision of personal wireless services." The potential impacts of federal law on the proposed ordinance are discussed in more detoJl below. The CounCil is scheduled to hold a pubic hearing on the proposed amendments on November 22, 2004. Code Amendment Approval Criteria The proposed changes are a City-initiated Type V application. If Council chooses to adOPt the amendments, it must find that the amendments are cOnsistent with (a) applicable statewide planning goals and (b) applicable provisions of the Metro Plan and applicable provisions, if any, of adopted refinement plans. 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. 2. Recommend that the Council make no changes to EC 9.5750. 3. Recommend that Council adopt only some of the proposed amendments to EC 9.5750. 4. Recommend changes to the proposed amendments. 5. Recommend a more comprehensive review of the cell tower siting provisions. Attachments 1. Draft amendments to EC 9.5750 2. Comments from interested parties 3. staff reports from previoUs Council work sessions Draft #2 (I 0/1/04) ORDINANCE NO. AN ORDINANCE CONCERNING CELL TOWERS, AND AMENDING SECTION 9.9750 OF THE EUGENE CODE, 1971. THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Subsection (7)(d) of Section 9.5750 of'the Eugene Code, 1971, is amended, a new Subsection (7)(I) is added thereto, Subsection (9)(c) is amended, and a new Subsection (9)(d) is added and the current (9)(d) and (9)(e) are relettered (9)(e) and (9)(f) respectively, and Subsection (11) is amended, to provide: 9.5750 Telecommunication Devices-Siting Requirements and Procedures. (7) Standards for Transmission Towers and Antennas. Installation, construction or modification of all transmission towers and antennas shall comply with the following standards, unless a variance is obtained pursuant to the provisions of subsection (9) of this section: (d) Setback. [The ~"" ....; ....+~,..,.~... ~...,.,. ..... ;'"'~ u] Unless a variance is granted pursuant to [the prc:'is!cn: cf] subsection (9) of this section, new transmission towers, and any existing transmission tower being modified to increase its height, shall be .set back no less than afl of the following distances~ if appficable: '1. '1000 feet from a pub#c school; 2. 800 feet from all residentially zoned property and from the nearest dwelling; -1-3. If located within a PL, S, C-2, C-3, C-4, I-1, I-2, or I-3 zone, [Re .... ., as required by this land use code or the provisions applicable to the S zone[=]; 24. If located within an [R-I ,] C-1 ltl or GO zone, the,..r~ ..... .., ,..,, ,,.... ,.. ," ° ° ~ "", number of feet that is equal to the height of the [trot, sm!cc!ct,] tower, from adjacent property lines[=]; 35. If located in the [R--lq PL, C-1 [ar, d] or GO zone[s], [trar, em!cc!cr, the number of feet that is equal to the height of the tower, from adjacent public streets; and 6. In all other zones, [the ..~,~,~,.u be a e,q 25 feet from adjacent public streets. Ordinance- ! C:kDocuments and Settings\cepljeckLocal Settings\TemPorary Internet Files\OLKF0\Cell tower siting -- Draft #2 (00091191).DOC 4" Draft #2 (I 0/1/04) (.I) Interference with Emergency CommUnications. No new transmission tower, nor an increase in the height of an existing transmission tower, shall be permitted unless the applicant can demonstrate to the satisfaction of the city that the tower will not interfere with or have any effect on emergency communication services. (9) Variance. (c) The city may grant a variance to the setback requirements of subsection (7)(d)l and 2 only if the applicant demonstrates to the city's satisfaction: ~. That the applicant is unable to provide an adequate level of telecommunications services to the proposed service area and also comply with the setback requirements; and 2. That the requested setback variance complies as closely as possible with the required setback requirements for this location or any other location in the city from which it is possible to provide comparable service. (d) The city may grant a variance to the setback and undergrounding requirements of subsections (7)(d)3. 4., 5 and 6, or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. (de) The city may grant a variance to the 75 foot height limitation in the R-1 zone to a maximum of 100 feet providing the applicant demonstrates that a transmission tower taller than 75 feet will directly eliminate the need for 1 or more additional transmission towers in an R-1 zone. (el) If the proposed transmission tower or ancillary facility requires site review or a conditional use permit, the request for vadance shall be considered as part of the site review or conditional use permit process. If the proposed transmission tower or ancillary facility is an outright permitted use, the request for a variance shall be processed pursuant to Type II application procedures beginning at EC 9.7200 General Overview of Type II Application Procedures except that the decision shall be based on the criteria in this section. (11) Fees. Notwithstanding any other provision of this code, the city manager [may] shall require, as part of application fees for building or land use permits for telecommunication facilities, an amount sufficient to recover all of the city's costs in retaining consultants to verify statements made in conjunction with the permit application, to the extent that verification requires telecommunications expertise. Ordinance - 2 C:~Documents and Settings\cepljec~ocal Settings\Temporary Intemet Files\OLKF0\Cell tower siting -- Draft #2 (00091191 ).DOC 5 Draft #2 (10/1/04) Section 2. The City Recorder, at the request of, or with the concurrence of the City Attorney, is authorized to administratively correct any reference errors contained herein or in other provisions of the Eugene Code, 1971, to the provisions added, amended, or repealed herein. Passed by the City Council this Approved by the Mayor this day of ,2004 day of ,2004 City Recorder Mayor Ordinance - 3 C:XDocuments and Settings\cepljec~Local Settings\Temporary Intemet Files\OLKF0\Cell tower siting -- Draft #2 (00091191) .DOC 6 November 8, 2004 City of Eugene Planning Commission Re: An ordinance concerning cell towers, and amending section 9.9750 of the Eugene code: I am presenting this testimony on behalf of Mona Linstromberg, 87140 Territorial Rd., Veneta, OR. Since January 2001, I have been involved in the issue of the appropriate placement of cell phone transmission towers, first, and still, in Lane County and then, and still, in the City of Eugene. Eugene's current ordinance was in response to the1996 Federal Communications Act. I agree with the Eugene City Council that it is time to reassess some of the current code to address the concerns expressed by the City's residents, most notably in the Garden Ave., Fairmount, University, River Road and Santa Clara neighborhoods. Given the directive by Eugene's City Council earlier this year, I had hoped suggested amendments would be on target and not just a slight of hand that would produce a cumbersome procedure ending up with pretty much the same results as now. The variance procedure, as written, essentially ensures that a variance will become the standard and not the exception. Mostly, I want to speak to the amended section on "Fees." As far as I am aware, the City of Eugene has never implemented this provision in its current form. Even with the proposed change from "may" to "shall", there are really no guarantees that anything more than the collection of fees upfront will be accomplished. There is no provision as to what criteria are used to trigger review by an independent telecommunications expert. Inthe application process assertions could be made or relevant data omitted that would be 'significant to an expert but would not even be noted by City staff untrained in this very technical field. The Federal Communication Act of 1996 does not give service providers carte blanche, as was recently determined in a US District Court decision (Feb. 2, 2004), VoiceStream PCS vs City of Hillsboro, Oregon (included in your information). At the very least, independent technical review at the expense of the applicant should be mandatory whenever a variance request is invoked. This is necessary to validate that ALL relevant technical information is provided to substantiate claims made by applicant and that all information provided is accurate. I request that staff be directed to re-write the setback provision from homes and schools so as to reflect the intent of the City Council's directive. Cfiven the possibility that the setback provision will not be applicable in all zones with residences and schools, I request that staff flesh out the provision for independent technical review so it can be implemented in a meaningful manner for the reasons discussed above. Thank you for your consideration, ~a~~~__~ Mona Linstromberg ~...,.~ 87140 Territorial Rd. Veneta, OR 97487 n-8-o4 Ladies and Gentlemen of the Planning Commission: I am here today because my neighbors and I spent over 2 years and thousands of dollars fighting a cell phone tower in our River Road neighborhood. Since January of 2oo4 I have been living in the shadow of a so-called stealth design tower less than 15o feet from my house. Let me tell you that there is nothing stealthy about a xoo foot tall tower in such close proximity to your home. I don't want other homeowners to face this same kind of fight with the same outcome, thus I have been lobbying the Eugene City Council to amend its current code for 3 years. On first reading I found the draft code revision that came out of the City Attorney's office disappointing, and on closer reading, I got more than a little angry. The City Attorneys admit in their comments that the variance provision is likely to make the setbacks illusory. So the City Attorneys have drafted a code amendment that gives the illusion of protection for the homeowner while handing the telecom industry a loophole large enough to drive a Mack truck through. How dumb do they think we are? This re-write of the existing code is not what the citizens asked for. In fact, I consider it a waste of City funds, since it essentially preserves the status quo in terms of giving the greater advantage to industry. The City Attorney's rationale for this variance is a broad and conclusory interpretation of parts of section 7o4 of the 1996 Federal Telecommunications Act (PTA). The FTA does not restrict local governments from regulating where towers can be placed, nor does it say that a local government is required to give the industry the right to achieve certain standards of coverage. It only says you cannot ban the'provision of personal wireless service outright. If the City Attorneys are concerned that setbacks would prohibit cell towers in certain zones of the city, they should go back and read the existing EC9.575o (5), under "prohibited zones". Current code prohibits new towers in the AG, R-~, R-3, R-4, H, NR, and PRO zones, as well as the winamette Greenway, on Gillespie Butte above 45o ff elevation, and on Judldns Pont. I am also bewildered by the proposal to reduce the setback in the &x and GO zones. This will have the effect of undermining the City Nodal Development Program by allowing towers in mixed use areas, thus making these areas less livable and less desirable. If the City even considers a reduction of the setback in certain zones, the heavy industrial and commercial zones are the 0nlY reasonable ones to consider. This would maintain the purpose of setbacks, which is to preserve residential property values, and avoid attractive nuisance. In light of the passage of Measure 37, the City should consider the prospect of compensating an entire neighborhood for lost residential property value every time a tower is built in a mixed use area. In summary, I find the proposed revision for the most part unsatisfactory. I urge the Planning Commission to revise this draft so that setbacks apply equally in all zones of the city. Respecffttlly, Martha F Johnson no East Hilliard Ln Eugene OR 974o4 November 8, 2004 Mr. Jerome Udz City Attorney for City of Eugene Harrang Long Gary Rudnick P.C. 360 E- 10th Avenue, Ste 300 Eugene, OR 97401 Re: Supplemental Comments Regarding Proposed Amendments to Wireless Ordinance Eugene Code.Section 9.5750 Dear Mr. I_idz: On August 23, 2004, I submitted a letter on behalf of AT&T Wireless Services ("AT'FWS") expressing ATTWS' initial concerns regarding Eugene's proposed amendments to its wireless code, EC 9.5750. Since then, you and I have had several.discussions regarding the proposed amendments. As you suggested, A-i-IANS Has completed a technical analysis quantifying the effects o{the proposed code amendments on its ability to provide wireless services to residents and visitors in Eugene. This letter is intended to convey the results of that analYsis ;and to express A3-FVVS' continuing concerns regarding the proposed amendments. Overall, A~-FWS opposes these amendments because they will have a significant adverse effect on A3-FWS' ability to meet its customers' service demands in Eugene. Based, On my review of the materials submitted t.o the Planning Commission, the proposed amendments appear to be advocated by a few anti-wireless individuals who do not represent the views of the entire community, which daily relies on the expanding availability of wireless services. Rea Fowler o{ TerraQuest International will attend today's Planning Commission meeting to convey ATTWS' concerns to the Commissioners. , I. ATTW$' Technical Analysis If the City adopts the code amendments currently proposed, AT-IANS will be prohibited from constructing several wireless facilities needed to provide service within Eugene. Taking into consideration ATTVVS' current wireless coverage and its anlJcipated coverage and capacity needs, ATTWS identified on a map of Eugene several additional locations where it will need to construct wireless facilities over the next several years. ATTWS then ovedaid that map with Eugene's zoning map to determine the zoning of each location. Through this analysis, AT-IANS determined that over the next several yea-rs it will need to locate eight additional wireless telecommunication facilities in Eugene. Of these eight facilities, six will be directly impacted - and likely prohibited - by the proposed amendments to Y:\V'CI~AT'r~UGE~NE~2ND C.~MMENT I.,TR llD~G4,DOC 11/05/04 M0N 10:43 [TX/RX NO 8271] Mr. Jerome Lidz i - 2 - ) November 8, 2004 Eugene's wireless code. Specifically, five °fthe locations are in residential zones, and one .. location is in a Community Commercial zone within 1000 feet of two schools. All six of these facilities most likely will need. to be new freestanding transmissions.towers. This is because . there are few tall structures in Eugene's residential zones, and because the Eugene Water and Electric Board does not offer utilitY Poles taller than 53 feet in height, which is inadequate due to Eugene's topography and vegetation. Similarly, with regard to the Community Commercial location, ATTWS recognizes there is an existing transmission tower in this area; however, all of the collocation spaces on the existing tower are occupied. Mr. Fowler intends to bring a map identifying :these six locations to today's Planning Commission meeting and to explain the effect of the proposed amendments on ATTVVS' ability to provide wireless data and voice services in Eugene. Ultimately, these six sites represent a significant portion of the City. to which the proposed code amendments would prohibit A-[-[W$ from providing service. II. Wireless Users Want Service in Their Homes The results of ATTWS' technical analysis highlight a key consideration seemingly absent ~rom the proposed amendments: wire[ess users want service in the/rho/77e$. The proposed code amendments make meeting t~at demand much. more difficult and 'potentially impossible. It has been years since t~e only people relying on wireless phones were business users whose service needs could be satisfied by facilities in commercial and industrial zones. Wireless services are now used by virtually every segment of society and are increasingly used as a substitute for traditional ]and lines. Consequently, wireless carriers, now more than ever, need access to residential areas. The Eugene Code currently permits wireless transmission towers in some residential zones. Ee~ EC 9.5750($)(a) and (9)(d). The proposed amendments to EC 9,5750(7)(d)(2)would not only create a conflict with these existing code sections, but, more importantly, would thoroUghly undermine wireless carriers' ability to provide the wireless voice and data services d mended I~y their customers in residential zones. This is not good policy for the myriad wireless users in Eugene and is unnecessary. !11. Setbacks from Schools A3-['WS previously expressed its concern, through my August 23, 2004 letter, that the proposed amendment prohibiting new and extended wireless transmission towers within 1000 feet of schools was an illegal proxy for health concerns. Since then, I have not received any alternative explanation for this proposed amendment. As you know, resLrictions based on alleged health impacts are prohibited by the 1996 Federal Telecommunications Ac~, 47 U.5.C. §332(c)(7)(B)(v). Moreover, wireless facilities are common on school campuses throughout the country. Wireless'carriers regularly replace ~ootball and soccer field light standards at elementary, middle and high schools with wireless facilities capable o~ serving the dual purposes of light pole and wireless facilitY. The City has not provided any legitir~ate explanation for prohibiting these options in Eugene. 1.1/08/04 M0N 10:43 [TX/RX NO 8271] . Mr. Jerome lldz - 3 - November 8, 2004 IV. Variance Provisions A~-IRA/$ continues to 13e concerned that the proposed variance language is an inadequate safety valve for the proposed school and residential setfacks. As proposed, a wireless carrier must demonstrate "to the city's satisfaction" that it "is unabie to provide an adequate level of telecommunications services to the proposed service area and also comply with the setback requirements" to obtain a variance. The ambiguous and unsatisfactory nature of this language is demonstrated bythe conflicting opinions of expressed by Planning 5taft and others submitting comments regarding the proposed new language. Wireless opponentS express concern that the proposed variance provisions will become the exception that swallows the rule, while wireless carriers anticipate that the standards will be interpreted strictly, making them virtually unmeetable. The proposed language should be significantly modified to provide greater clarity and less opportunity for the arbitrary use of discretion. Aq-I-VV5 suggests that the City modifY the proposed variance provisions ir~ the following two ways. First, ATTW$ requests that the City consider permitting exceptions from the setback provisions through an administrative adjustment, rather than a variance, process. Second, ATTW5 reiterates its request that the City modify the language of proposed EC 9.570(9)(c)(1) to read as follows: "That it is not possible for the proposed Wireless facility to satisfy its function within the applicant's wireless network and also comply with the setback requirements." This language takes into consideration quality, coverage and capacibj demands. It would also require that the issue be evaluated within the context of the carrier's existing wireless network. ATTWS urges the City to consider these revisions. Without such language, the City exposes itself to litigation not only from wireless carriers asserting that the setbaclcs constitute a prohibition of service, but equally to lawsuitS from anti-wireless citizens who will assert that the City has not applied its vague standards stri~ly enough. Both are likely avoidable +J~rough tighter drafting. V. Third Party Technical Review As I explained in my August 24, 2004 letter, ATTW5 does not object to paying the actual costs incurred by the City to hire an independent consultant to assist the City in reviewing its applications. The qualifications and scope of review for these independent consultants, however, needs to be spelled out more clearly in the wireless code, Specifically, the wireless code should provide that any independent consultant must be a qualified and licensed engineer mutually acceptable to both the City and the wireless applicant. Equally important, the consultant's scope of wo~ should be limited to reviewing and verifying the wireless carrier's technical assertions - e.g., Js there a gap in coverage or insufficient call capacity, and will the proposed facility resolve that issue. Without such specificity, the technical consultant's review can morph from the review of a particular facility and how it fits within the wireless carrier's existing net~vo~, to an analysis of the efficacy the carrier's entire network cJesign. This is not helpful to either th~ tit7 ortho wireless carrier. We are in the process of formulating language addressing this issue and will provide it to you later this week. VI. Other Issues if the City is'committed to amending its wireless code at this time, ATTW$ has several alternative suggestions to those currently proposed. In particular, Aq-f~/V$ requests that the y:~WP~TI-~EUGENE~.ND COMIVlE~T LT~ 11000~.DOC 11/08/04 MON 10:43 [TX/RX NO 8271] ""' ? November '8, 2004 Mr. Jerome Lidz ~ i -4- City clari~y thatthe term "existing" in its wireless code includes new facilities or poles Constructed to replace a pre-existing facility Or F;ole in order to accommodate the addition of a wire]ess facility. -,cee, e.g., EC 9.5750(3)(a). This is important because o~en existing light poles and utility poles are not structurally strong enough to accommodate the addition of a wireless ~acility. Consequently, to locate on a light pole or utility p01e, a wireless carrier must replace tine exisl~ng pole with a new pole to meet height and structural safety requirements. If necessary, A3-FWS could produce language to assist the City with this amendment. .. Thane you very much for your consideration. We remain hopeful that the City will revise its approach to amending its wireless code so t{~at ATTWS and other carriers will be able to meet the service demand~ of their customers living in and traveling through Eugene. Please contact me if you have any questions or comments regarding this letter. Ve~ truly yours, Molly A. Lawrence MAL:MAL Dan Smith, A1-FWS Ron Fowler Louis Levy, ATTWS y:~WP'd~Ti~ENILr~ND COMMENT LTR 110B04.DOC 11/08/04 M0N 10:43 [TX/RX NO 8271] AGENDA ITEM SUMMARY 'October 11, 2004 To: Eugene Planning CommiSsion From: Eugene Planning Division; City Attorney's Office Re: Amendments to Cell Tower Siting Ordinance Action Requested: To make a recommendation to the City Council regarding proposed amendments to EC 9.5750 (Telecommunications Devices - Siting Requirements and Procedures) Brief Su~mmary of Agenda Item: At a work session on April 14, 2004, the City Council adopted a motion 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 residences; (2) codify the requirement for independent consultant review and verification; and (3) codify zero tolerance for interference with public Safety communications. Background: The current version of EC 9.5750 is substantively the same as Council adopted in Ordinance 20078 in 1997, shortly after'Congress adopted the Federal Telecommunications Act in 1996. The ordinance responded to an increasing number of requests to construct cell towers and related facilities that accompanied the rapid growth of cellular phone service. 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 theprovision of personal wireless services." The potential impacts of federal law on the proposed ordinance are discussed in more detail below. The Council is scheduled to hold a pubic hearing on the proposed amendments on November'22, 2004. Code Amendment Approval Criteria The proposed changes are a City-initiated Type V application. If CoUncil chooses to adopt the amendments, it must find that the amendments are consistent with (a) applicable statewide planning goals and (b) applicable provisions of the Metro Plan and applicable provisions, if any, of adopted refinement plans. IV-1 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 with~ 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 staffto 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 staff to require an applicant for a telecommunications facility permit to pay for the City t° 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. IV-2 2. Recommend that the Council make no changes to EC 9.5750. 3, Recommend that Council adopt only some of the proposed amendments to EC 9.5750. 4. Recommend changes to the proposed amendments. 5. Recommend a more comprehensive review of the cell toWer siting provisions. Attachments 1. Draft amendments to EC 9.5750 · 2. Comments from interested parties 3. Staff reports from previous Council work sessions B. WORK SESSION: Cell Tower Siting Ms. Muir rex;iewed the purposes of the Telecommunication Ordinance code language, adopted in 1997, that addressed cell tower siting, as follows: to minimize the number 0ftowers throughout the community; -. to encourage cOllocation facilities; to encourage the use of existing buildings and poles as opposed to constructing new ones; to recognize the need of providers to build out their systems; to ensure that facilities were designed to minimize the visual impacts on the immediate surround- ings and throughout the community, and minimize public inconvenience and disruption. Ms. Muir indicated, with the assistance of tables, there were 27 cell towers permitted to be constructed since the advent of the Telecommunications Ordinance. Ms. Muir referenced a map on display that showed buffers currently in the Lane County code applied to the City~ Mr. Poling; Secondedby Ms. Solomon, moved to initiate amendments to Section 9.5750 of the Eugene Code to 1) extend setbacks for new cell towers to 1,000 feet from the nearest school and 800 feet from the nearest residences; and 2) codify the requirement for independent con- sultant review and verification; and 3)'codify zero tolerance for interference with public'safety communications. Ms. Nathanson stated from her experience with this issue at a national level that the key drivers were capacity and coverage. She stressed that more people wanted cellular phone service everywhere. She noted that.the city of Eugene posed topographical challenges to the provision of adequate coverage.. She' recognized there would be new requests to build cell tower~ as providers sought to keep abreast of demand. She felt more staff analysis was needed on proposed setbacks. Ms. Nathanson said she was a big proponent of the Third Amendment. She warned that there could be extensive legal work due to a lawsuit in another county which had attempted to adopt a zero interference ordinance. She related that the Federal Communications Commission (FCC) had insisted the federal govenunent should be in charge of who should regulate broadcasting. She disagreed, stating that it should be a local matter. Mr. Pap~ said he had not seen evidence that cell towers posed a safety hazard. He suggested that a safety hazard posed by cell tOwers would also be posed by telephone lines and electro-magnetio fields generated by large power lines. He commented that there was no 'analysis before the council with regard to the 1996 federal act and without this information it would be difficult to anticipate the legal ramifications of the · motion to initiate amendments. Mr.'Pap6 noted that there were providers willing to. work with the City and the City had yet to work' with them. In response to a question from Mr. Pap6, City Attorney Glenn Klein stated that the Federal Telecommuni- cations Act would need to be reviewed to ensure any proposed changes would be consistent with it. Courts have rendered a variety of decisions, sometimes conflicting, all over the'country. He clarified that acting on the motion it would not adopt anything nor would it open the City to any sort of legal action. He said staff would take direction from the motion and'try (o develop the changes and analyze whether they could give rise to challenges. Mr. Taylor added that any amendments would have to go before the Planning Commission and at least two public hearings would occur on the matter. MINUTES--Eugene City Council April 14, 2004 Page 6 Work Session IV-4 Mr. Pap6, seconded by Ms. lqathanson, moved to amend the motion to include any other code amendments recommended by staff.. Ms. Nathanson welcomed the amendment because there were areas of concern such as siting the utility boxes on private property or public rights-of-way. She noted she had not liked what she had seen in other parts of the country. She wanted there to be more adequate safety measures as well as thorough screening prior to installation. Mr. Kelly did not support the amendment, noting there were few resources in the Planning Division to address it. He preferred achieving success on the three items before them before proceeding to broaden the burden on Staff. He noted Lane County had passed setback requirements. Ms. Bettman asked how much the amendment would increase the scope of work. Ms. Muir replied that, should the directive require a broad audit, it would be time-consuming. Mr. Meisner indicated he Would not support the amendment. He commented that he was unsure about the main motion due to the potential legal ramifications. Ms. Taylor supported the motion and was inclined to support the amendment. Ms. Muir stated that there was a provision in the existing code that may require the posting of an open- ended bond and there was also a requirement that the recovery of fees from the City's cost in retaining consultants for the pUrPoses of verifying applications. She added that the latter had not been consistently enforced, but the division was now enforcing it in all cases. Mr. Pap6'hoped to allow.staff the ability to do some research and craft the appropriate language so that it. WOuld not need to remm for revision in five years. Ms. Nathanson thought it would not take long for staff to do a "quick literature search" to fred out what other cities had done to shore up gaps in their cell tower ordinances. She indicated she intended the research to primarily focus on problems the cities had experienced. Mr. Kelly felt tightening the language could easily fall into minor updates to the Land Use Code, but if it was more substantive, he was concerned the amendment would "open things up too far." He added that Citizens for Responsible Placement of Cell Phone Towers (CRPCPT) had provided the council with a document in 2002 that could prove to be a goOd reference. Mr. Klein said, in response to Ms. Bettman, that legal counsel could craft language for such an ordinattce within 30 to '45 days. Ms. Bettman called for the vote on the amendment. The motion to amend passed, 5:3; Mr. Poling, Ms. Nathanson, and Ms. Solomon voting no. Mr. Meisner asked staffto deiermine how many of the existing cell towers would not have been placed ' had the proposed requirements already been passed. MINUTES--Eugene City Council April 14, 2004 Page 7 Work Session 1¥-5 Mr. Poling commented, regarding the third proposed amendment, that he would not tolerate any interfer- · ' ence with public safety employees' radios. He hoped that the legal challenges that had been raised would become clearer in time. He. thanked the CRPCPT for its information. MI. Kelly voiced his support for the main motion. He recalled that in his ward several cell tower placements had generated well over 100 citizen Comments. He thought zoning did not adequately influence cell tower siting as it was possible to live on land that was zoned R-1 that was immediately adjacent to land that was zoned I on which a cell tower could more easily be placed. Mr. Meisner recalled the amount of stafftime and outside legal counsel required in the development of the Telecommunications Ordinance and expressed hope 'that the City could approach cell tower citing much more efficiently. Mr. Taylor noted that the mobile data terminals in police cars ran on cell tower technology. MS. Bettman supported the motion. The main motion passed unanimously, 8:0. The meeting adjoUrned at 1:24 p.m. Respectfully submitted, Dennis Mi Taylor City .Manager · (Recorded by Ruth Atcherson) MINUTES--Eugene City Council April 14, 2004 Page 8 Work Session IV-6 EUGENE CITY COUNCIL AGENDA ITEM SUMMARY Work Session: Cell Tower Siting Meeting Date: April 14, 2004 Agenda Item Number: B Department: Planning and Development Staff Contact: Tom Coyle www. ci. eugene, or. us Contact Telephone Number: 682-6077 AGENDA ITEM SUMMARY This item is a work sessiOn on the issues associated.with cell tower siting. BACKGROUND Council Action History Following adoption of the Federal Telecommunications Act of 1996, the City CoUncil established a CoUncil Committee to Work with staff and the City Attorney in developing a draf~ telecommunication ordinance. That ordinance was reviewed by the Planning Commission and ultimately adopted by the City Council on February 24, 1997. On October 14, 2002, the City CoUncil held a work session on cell towers to evaluate the status of the telecommunications ordinance and to determine whether further amendments were warranted. Although the council directed staff to pursue amendments to the ordinance, no additional funding was provided. Policy Issues The key policy issue for the City Council to consider is whether amendments to the Telecommunication Ordinance are necessary and if so, whether this.should be one of the top priority work program items, as discussed at the counciFs recent work session. Staff offers the following information for City Council consideration: Effectiveness of the Current Ordinance ~As noted in the work session on October 14~ 20021 the number of telecommunication applications has continued to decrease. This is particularly true for new tower proposals, especially in more sensitive areas. Of the requests made since the adoption of the ordinance, the vast majority of proposals have been to cO-locate facilities on existing towers or other structures. Of the new towers proposed, most have been placed in areas of higher impact, such as the industrial zones. As of this date, no applications have been processed for a tower within a residential zone. Such information helps validate the effectiveness of the ordinance which emphasizes co-location of facilities and discourages placement of towers in more sensitive areas of the city. Balance of Communi _ty Concerns and Legal Constraints ,~ When the original ordinance was drafted, substantial effort was glven to minimizing community impacts while meeting the legal mandates established in the Federal Comr~unications Act. Since'the.adoption of L:\CMO~2004 Council Agendas~M040414~S0 ~ City Council Agenda page 567 IV-7 these provisions, the City has experienced a fairly low level of controversy associated with new. faeilities~ Over the past seven years, there have been three land use decisions appealed (two by neighborhood groups and one by a telecommunication provider). In addition, the City continues to be recognized for having a model ordinance which has-withstood legal challenge from the telecommunication industry, while providing an incentive-based approaCh to minimize impacts to neighborhoods. Council Goals The issue of cell tower siting falls under the 2003-2004 Council Goal of Sustainable community Growth and Change, specifically the section that refers to managing grOwth and change in the urban environment. Financial and/or Resource Considerations Due to limited resources, any staffwork on this issue should be prioritized along with the other items noted on the Planning and Development Department W0rkplan that .was considered by the council on February 9, 2004. Othe~ Background Information None. Timing There are no timing issues associated with this item. OPTIONS None; this is a work session only. STAFF.RECOMMENDATION Not applicable. SUGGESTED MOTION Not applicable. A rACmV E S None. FOR MORE INFORMATION Staff Contact: TOm Coyle Telephone: $41~682-8817 Staff'E-Mail: tom. g.co¥le~ci.eugene.or.us. L:\CMO~2004 Council Agend~hM040414XS040414B.d°C IV-8 City Council Agenda page 568 9.5650Recyclinu-Small Collection, Facility Standar,ds. A small collection recycling facility may provide source separated collection of recyClabl® materials more .. particularly described in Chapter 3 of this code and adopted administrative rules, subject to the following standards: (t) Collection Containers: Collection containers shall be in compliance with the requirements for size, .color and type in administrative rules adopted under Chapter 3 of this code. If containers provide an opening to the elements of greater than 2 square feet they must be situated under a covered structure . and enclosed on 3 sides in order to protect users from the elements, minimize blowing debds, and meet. requirements of the State Structural Specialty Code. (2) Sites: Shall be kept neat and clean. (3) Signage: Appropriatesignage shall be placed at the-site that conform to regulations in this land use code. 'Signs shall include the name and telephone number of the party responsible for collection at the site, preparation standards for materials collected at the site, and scheduled collection times. (4) Traffic Circulation and Vision Clearance: The-.collection center's location, donated materials storage, or any other activities associated with the use shall not impede traffic circulation and vision clearance. .{$) Public Right-of-Way: Collection centers shall not be located in the public right-of-way. (Section 9.5650, see chart at front of Chapter 9 for legislative history from 2/26/01 through 6/1/OZ ) ~"*:2 ." ~';.: '::ii:: 'i_.'*, ..... ... *~ *. :-. ::-: "-, ;'.' '. ": . . · : ...... ;.. ~.," :..-.~. .... ... .~. ': ............. ~(~i') ....... J~'i~l~6~:' ~h*~'iSF(~J'~i~i~'"~T~J*i~i"~'~"a'~r'~~ ~[~ded to ensUr® that telecommunication facilities are located, installed, maintained and removed in a manner that: (a) Minimizes the number of transmission towers throughout the community; (b) Encourages the collocation of telecommunication facilities; (c) Encourages the use of existing buildings, light or-utility poles or water towers as opposed to construction of new telecommunication towers; (d) Recognizes the need of telecommunication providers to build out their systems over time; and- (e) * Ensures that all telecommunication facilities, including towers, antennas, · and ancillary facilities are located and designed to minimize the visual impact on the immediate surroundings and throughout the community, and minimize public inconvenience and disruption. Nothing in this section shall apply to amateur radio antennas, or facilities used exclusively for the transmission of television and radio signals. {2) Siting Restricted. No telecommunication facility~ as defined in this land use Code,may be constructed, modified to increase its height, installed or otherwise located within the city except as provided in this section. Depending on the type and location of the telecommunication facility, the telecommunication facility shall be either an outdght permitted use, subject to site review procedures, or require a conditional use permit. (a) Outri,qht PermiRed Uses. No land use permit is required for a telecommunication facility which, pursuant to subsections (3) through (5) of this section, is an outright permitted use. Such a telecommunication facility shall require only a development permit or permits.. 9-231 01/02/2004 - Eugene Code. " (b) Site Review. A telecommunication facility which, pursuant to ?"~'~ subsections (3) through (5) of this section, is subject to sit® review* shall ' be processed in accordance with the site review procedures .of this land use code. 'The criteria contained in this section, as well as the criteria contained in EC 9.8440 Site Review Approval Criteria - General, shall .~ govern aPproval or denial of the site review application. In the event of a conflict in criteria, the criteria contained in this section shall.govern. No development, permit shall be issued' prior to completion of the site review process, inclUding any lOcal appeal. (c) Conditional Use Permit.. A telec(~mmunication'facilitY which,' pursuant to subsections (4) or (5) of this section, requires a conditional use permit shall be processed in acCordance with the conditional use permit procedures of this land use code, except that the variance provisions shall not apply. The criteria contained in EC 9.8090 Conditional Use Permit Approval Criteria - General and Subsections (6) and (7) of this section shall govern approval or denial of the Conditional use permit · application. In the event of a conflict in criteria, the criteria contained in subsections (6) and (7) of this section shall govern. No develoPment , permit shall be issued prior to completion of the conditional use permit process, including any local appeal. (3) . Collocation of Additional Antennas on Existing TransmiSsion Tow.er. (a) Permitted Use.' Collocation of an additional antenna on an existing transmission tower shall be considered an outright permitted use if property.is zoned GO, PL, S, C-2, C-3, C-4, I:1,. I-2,' or I-3 or if the -~. transmission tower is in any other Zone and the city specifically approved, as part of a prior land use process authorizing the transmission tower, collocation of additional antennas. (b) Site Review. Collocation of an additional antenna on an existing transmission tower shall be subject to site review approval if property is zoned AG, R-l, C-1 or PRO and approval for collocation was not granted through a prior land 'use process. (4) Collocation of Antennas on Existing Buildings, Light or Utility Poles, and ' Water Towers. In addition to collocation on a transmission tower, an antenna may be collocated on existing buildings, light or Utility poles, and water towers. (a) Permitted Use. Such collocation on a building, light or utility pole, or water tower, shall be considered an oUtdght Permitted use provided that the antennas and ancillary facilities comPly with the standards contained in EC 9.5750 Telecommunications Devices-Sitin.~ Requirements and Procedures, the color of the antennas blends *in with the existing structure 'and surroundings, and one of the following is met: 1. The property'is zoned PL, C-2, C-3, C-4, R-4, I-1, I-2, or I-3 and the antennas do not exceed the height limitation of the zone; or 2; *The'property is zoned AG, R-l, R-2, R-3, C-1, GO, S, H, or PRO, ' andthe antennas extend no more than 18 feet.above, and project no more than 2 feet horizontally away from the existing structure. (b) ' ..~.~~. Such collocation on a building, light or utility pole, or water tower shall be subject to site review approval provided that the .antennas and ancillary facilities comply with the standards contained in EC 9.5750 Telecommunications Devices-Sitina Requirements and Procedures., the 9-232 01/02/2004 Eugene .Code ~,. ' · color of the antennas blend in with the existing structure and surroundings, and: 1. The property is zOned AGi R-l, R-2, R-3, C-1, GO, S, H,-or PRO, and the antennas extend .more than 18 feet above, or project more than 2 feet horizontally away from the existing structure. (c) Conditional use Permit. In all cases other than those listed in , . subparagraphs (a) and (b), such collocation shall require a conditional .. use permit. No exceptions to the Standards contained in EC 9.5750 Telecommunications Device~i-Sitin,q Requirements and Procedures shall be permitted.eXcept as authorized by subsection (9) of this section. In- no event shall, a conditional use permit authorize a tower or antennas to exceed the height limitation fOr a zone as established by Chapter 9 except as provided for in this section. (5) Construction of Transmission TOwer. Construction of a transmission tower, or a modification of an existing transmission tower to increase its · height, shall be allowed as follows: (a) Permitted Use. ...- 1. Such construction or modification shall'be considered an outright .. permitted use in the C-4, 1,1, I-2 and I-3 zone.. 2. Modification to increase the height of an existing transmission tower shall be considered an outright permitted use in all other .zones if the city approved an increase in tower height, as part of a prior land use process authorizing the transmission tower. The ~--.~. increase in height allowed under this paragraph shall be limited to ,.. ~ i~ the specific height authorized in the prior land use process. · (b) Site Review. Such cOnstruction shall'require site review approval, in the PL, C-2, and C-3 zones. (c) Conditional USe Permit. Such construction shall require a conditional GO zones. No new transmission tower shall be permitted in any zones ed in subparagraphs (a) to (c) above, including the AG, R-2, R~3, R-4,.H, NR, and PRO zones; or in the 'Willamette Greenway, on Gillespie Butte above the elevation of 450 feet, on the ddgeline·as defined in the South Hills Study or on Judkins Point. · (6) Application Requirements. (a) Collocation of Antennas. In addition to standard required application material, an applicant for cOllocation of antennas shall submit the ~ following information; additional application material is 'required, as specified in paragraph (c) below, for applications r~quiring a site review or conditional use process. 1. A description of the proposed antennas location,·design and · · height. 2. Documentation demonstrating compliance with non-ionizing electromagnetic radiation (NIER) emissions standards as set forth by the. Federal Communications Commission (FCC) particularly with respect to any habitable areas within the structure on which the antennas are co-locating on or in structures directly across ; "from or adjacent to the antennas. -- 3. A statement documenting that placement of the antenna is · . · 9-233 01/02/2004 I~¥11 Eugene Code designed to allow future collocation of additional antennas .if technologically possible. 4. Documentation that the ancillary'facilities will .not produce sound levels in excess of those standards specified in subsection (7)(f) of this section, or designs showing how the sound is to be effectively muffled and reduced pursuant to those standards. 5. Plans showing the connection to .utilities/right-of-way cuts required, ownership of utilities and easements required. 6.; DoCuments demonstrating that necessary easements have been obtained. · 7. Plans showing how vehicle access will.be provided. 8. Signature of the property owner(s) on the application form or.a : statement from the property owner(s) granting authorization to proceed with development permit and land use processes. 9. If ancillary facilities will be located on the ground, a landscape plan drawn to scale showing proposed and existing landscaping, including type, spacing, size and irrigation methods. 10. Documents demonstrating that the FAA has reviewed and aPproved the' proposal, and the Oregon Aeronautics Division has reviewed the proposal. Alternatively, when a site review or conditional use process is required, submit a statement documenting that notice of the proposal has been submitted to the 'FAA and Oregon Aeronautics Division. The site review or. conditional use process may proceed and approval may be 'granted'for the proposal as sUbmitted, subject to.FAA approval. If FAA approval requires any changes to the proposal as init!ally approved, then that initial approval shall be void. A new application will need to be submitted, reviewed and approved 'through an additional site' review or conditional use process. No develOpment permit application shall be submitt/ed without documents demonstrating FAA review and approval and Oregon Aeronautics Division review. (b) Construction of Transmission Tower. In addition'to standard required application material, an applicant for a transmission tower shall submit the following information; additional application matedal is required, as specflied in paragraph (c) beloW, for applicatiOns requiring a site review or conditional use. process: 1 .' A description of the'proposed tower, location, design and height. 2. The general capacity of.the tower in terms of the number and type of antennas it is designed to accommodate. I~. 3. Documentation demonstrating compliance with non-ionizing '. electromagnetic radiation (NIER) emissions standards as set forth by the Federal Communications Commission (FCC). · 4. A signed'agreement, as supplied by the city, stating that the applicant will allow collocation with other users, Provided all safety, structural, and technological requirements are met. This agreement shall also state that any future owners or operators will allow collocation on the tower. 5. Documentation that the ancillary facilities will not produce sound levels in excess of those standards specified in subsection (7) of 9-234 - 01/02/2004 IV-12 Eugene Code ' '~'~'i this section, or designs showing how the sound is to be effectively muffled and reduced pursuant to those standards. 6. A landscape plan drawn to scale showing proposed and existing landscaping, including type, spacing, size and irrigation methods. 7. Plans showing the connection to utilities/right-of-way cuts required, ownership of utilities and easements required. 8. Documents demonstrating that necessary easements have been obtained; '9. Plans showing how vehiCle access will be provided; 10. Signature of the property owner(s) on the aPplication form or a statement from the property owner(s) granting authorization to proceedwith development permit and land use processes; 11. Documents demonstrating that the FAA has reviewed and approved the proposal, and Oregon Aeronautics Division has reviewed the proposal. Alternatively, when a site review or conditional use process is required, submit a statement documenting that notice of the proposal has been submitted to the FAA and Oregon Aeronautics Division. The site review or conditional use process may proceed and approval may be granted for the proposal as submitted, subject to FAA approval. If FAA approval requires any changes to the proposal as initially approved, .then that initial approval shall be void. A new .... application will 'need to be submitted, reviewed and approved .... through an additional site review or conditional use process. No . '~ '~ development permit application shall be submitted without documents demonStrating FAA review and approval and Oregon " Aeronautics Division review. (c) Site Review and Conditional Use Permit Applications. In addition to the apPlication requirements specified in paragraph' (b) above, applications for site review or conditional use permits also shall include the following information: 1. A visual studY containing, at a m!nimum, a graphic simulation showing the appearance of the proposed tower, antennas, and. ancillary facilities.from at least 5 points within a 3 mile radius. Such points shall be chosen by the provider with review and approval by the planning director to ensure that various potential views are represented. 2. Documentation that alternative sites within a radius of at least 2000 feet have been-Considered and have been determined to be technologically unfeasible or unavailable. For site reviews, alternative sites zoned C-4, I-1, I-2, and I-3 must be considered. For conditional use permits alternative sites' zoned PL, C-2 and C- 3,. C-41 I-1, I-2, and I-3 must be considered. X '3. Evidence demonstrating Collocation is.impractical on 'existing tall buildings, light or utility poles, water towers, existing transmission towers, and existing tower facility sites for reasons of structural support capabilities, safety, available space, or failing to meet service coverage area needs. " ' 4. A current overall system plan for the cityl showing facilities '- ,.. presently constructed or approved and future expansion plans. 9-235 01/02/2004 IV-13 Eugene Code 5.. A 'statement providing the reasons for the' location, design and ~i~.'~-i)-*- height of the proposed tower or antennas. (7) Standards for Transmission Towers and Antennas. Installation, · construction or modification of all transmission towers and antennas shall comPly with the following standards, Unless a variance is obtained pursuant to ~ the 3rovisions of subsection.(9) of this section: (a) Separation Between Transmission Towers. No transmission tower may be ·constructed within 2000 feet of any pro-existing transmission tower. Tower separation shall be measured by following a straight line from the portion Of the base of the proposed tower which is closest to the base of any pro-existing towe~:. For purposes of this paragraph, a tower shall include any transmission tower for which the city has issued a development permit, or for which an application has been filed and not denied. Transmission towers constructed or approved prior to' February .26, 1997 may be modified to accommodate additional providers consistent with provisions for collocation in this sectiOn.. (b) Hei,qht Limitation: Transmission tower heights shall be governed by this section except as provided for below. No transmission tower shall exceed the maximum heights provided below. In no case shall a variance be granted from the limitations of subparagraphs (1) through (4) below. 1. In any zones, no transmission tower shall exceed the height limitations established for. buildings and structures in the specified areas surrounding Skinner Butte contained in EC 9.6715 Hell:Iht Limitation Areas of this land use cOde to protect views to and from Skinner Butte. 2. In any zone within the aroa east of Willagillespie Road, south of Cai Young Road, west of Oakway Road, and north of Southwood Lane and Country Club Road, no transmiSsion tower shall exceed 75 feet in height to protect views to and from Gillespie BUtte. 3. If located within a PL, C-2, C-3, C-4, R-4, I-1, I-2 or I-3 zone, the height limitation for that zone shall apply. 4. If located within a C-1, S or GO zone, the maximum height of a transmission tower, including antennas, is 100 feet. 5·. If located within an R-1 zone, the maximum height of a transmission tower, including antennas, is 75 feet, unless a variance is granted pursuant to the provisions of subsection (9) of this section. In no event shall a variance be granted to construct such a tower in excess of 100 feet. (c) Collocation. New transmission towers shall be designed to accommodate collocation of additional providers: 1. New transmission towers of a height of 80 feet or moro shall be designed to accommodate collocation of a minimum of 2 additional providers either outright or through future modification to the tower. 2. New transmission towers of a height of at least 60 feet and no moro than 80 feet shall be designed to accommodate collocation 'of a minimum of 1 additional provider either outright or through future modification to the tower. ~" (d) Setback. The following setbacks from adjacent property lines and 9-236 0t/02/2004 IV-14 Eugene Code -~"~ ~"~ adjacent streets shall be' required unless a variance is granted pursuant to the provisions of subsection (9) of this section: 1. If located within a PL, S, C-2, C-3, C-4, I-1, I-2, or I-3 zone, no setback from adjacent property lines shall-be required beyond that required by this land use code or the provisions applicable to the S zone. 2. If located within an R-l, C-1, or GO zon®, the transmission tower ' shall be set back from adjacent property lines a minimum number of feet .that is eqUal to the height of the transmission tower. 3. 'In the R-l, PL, C-1 and GO zones, transmission towers shall be set.back from adjacent public street(s) a minimum number of feet that is equal to the height of the tower. In all other zones, the' setback from adjacent public streets shall.be a minimum of 25 feet. ' (e) BuffednR. In all zones, existing vegetation shall be preserved to the maximum extent possible. In the C-4, I-1, I-2 and I-3 zones, no buffering is .required beyond that required by this land use code. In all other zones, landscaping shall be placed completely around the transmission tower and ancillary facilities located at ground level except as required to .access the facility. Such landscaping shall consist of evergreen vegetation with a minimum planted height of 6 feet placed _ densely so as to form a screen. Landscaping shall be compatible with .: other nearby landscaping and shall be kept healthy and well maintained. .,----,~ (f) Noise Reduction.. In R-l, R-2, R-3, R-4, C-1, and GO and in all other zones when the 'adjacent property is zoned for residential use or occupied by a dwelling, hospital, school, library, or nursing home, noise generating equipment shall be sound-buffered bymeans of baffling, barriers, or other suitable means to reduce sound level measured at the property line to 45dBa. '(g) Status of Location. No permit may be issued for the location.of a new telecommunications facility within an R-1 or C-1 zone unless the lot on which it is to be placed is vacant or. developed with a non-residential use at the time the permit application is submitted. This restriction dOes not apply within other zones. (h) Li~htina.. No lighting shall be permitted on transmission towers except that required by the Federal Aviation Administration. No high intensity white lights may be located on transmission towers in an R-l, C-1, or PRO zone. · (i)Color. The transmission tower and attached antennas shall be unpainted galvanized steel or painted neutral colors or such shades as are appropriate and compatible with the surrounding environment, as approved by the city. (j) ..viewshed. The transmission tower shall be located down slope from the top ora ddgeline so that when viewed from any point along the northern right-of, way line of 18th Avenue, the tower does not interrupt the profile of the ridgeline or Spencer Butte. In addition, a transmission tower shall not interrupt the profile of Spencer Butte when viewed from any location in Amazon Park. ViSual impacts to prominent views of Skinner Butte, '~ Judkins Point, and Gillespie Butte shall be minimized to the greatest .... extent possible. Approval for location of a transmission tower in a 9-237 01/02/2004 IV-15 Eugene Code prominent'vieW of these Buttes shall be given only if location of the transmission tower on an alternative site is.not possible as documented by aPplication ·materials submitted by the applicant, and the transmission tower is limited in height to the minimum height necessary to provide the approximate coverage the tower is intended to provide. (k) Display. No signs,.striPing, graphics or other attention getting devices aro permitted on' the transmission tower or ancillary facilities except for warning and safety signage with a surface aroa of no more than3 square feet. Such signage shall be affixed to a fence' or ancillary facility and the number of signs is limited to no more than 2. (8) Standards for Ancillary.Facilities. All ancillary facilities Shall comply with' 'the standards of subsections (7)(e) and (7)(f) of this section. In addition, all ancillary facilities within an R-l, PL, C-1, GO, and PRO zone must be located underground to the maximum extent technology allows, unless a variance is obtained pursuant to the provisions of subsection (9) of this. section. This · restriction does not apply within other zones. (9) Variance. (a) Any variance to the requirements of this section shall be granted only pursuant to the following provisions. The criteria for granting a variance · shall be limited to this section, and shall not include the standard variance criteria beginning at EC 9.8750 Purpose of Variances. (b) The city may grant a variance from the provisions of subsection (7)(a) of this section providing the applicant demonstrates that: 1. It is technologically impossible to locate the proposed tower on available sites moro than 2,000 feet from a pro-existing transmission tower and still provide the approximate coverage the tower is intended to provide; 2. The pro-existing transmission tower that.is within 2,000 feet of the · · 'proposed tower cannot be modified to accommodate another provider; and 3. There are no available buildings, light or utility poles, or water towers on which antennas may be located and still provide the apProximate coverage the tower is intended to provide. (c) The city may grant a variance -to the setback and undergrounding requirements of subsections (7)(d) or (8) upon finding that stealth design, proPosed landscaping, configuration of the site, or the presen .ce of mature trees obviates the need forcompliance. (d) ' Th® city may grant a vadance to the 75 foot height limitation in the R-1 zone to a maximum of 100 feet providing the applicant demonstrates that a transmission tower taller than 75 feet will directly.eliminate the need for 1 or more additional transmissiOn towers in an R-1 zone. · (e)If the proposed transmission tower or ancillary.facility requires site review or a conditional use permit, the request for variance shall be considered as part of the site review or conditional use permit process. If 'the proposed transmission tower or ancillary facility is an outright permitted use, the request for a vadance shall be *processed pursuant to Type II application procedures beginning at EC 9.7200 Gener.a..I Overview of Type II Application Procedures except that the decision shall be based on the criteda in this section. (t0) Removal of Facilities. 9-238 01/02/2004 Eugene Code· · "i (a) All transmission towers and antennas shall be removed by the person who constructed the facility, by ·the person who operates the facility, or by the propertY owner., within 6 months of the time that the facilities have ceased being used to transmit, receive or relay voice and data signals to or from wireless communication devices. The city manager may grant a 6-month extension where a written request has been filed, within the initial 6-month period, to reuse the tower' or antennas. (b) If a transmission tower is located within an R-l, PL, C-1 or GO zone, the · ~ provisions of subparagraph (a) also shall apply to thetower substructure and all ab.o~.e ground ancillary facilities. . (c) The City a~y~r~quire the posting of an open ended bond before devel(~p~nent permit issuance to insure remOval of the transmission tower, substructure or antennas after the facility no longer is being used. ('11) Fees. NotwithStanding any other provision of this code, the city manager may require, as part of application fees for bUilding or land use permits for · telecommunication facilities, . an amount sufficient to recover all'of the city's costs in retaining consultants to verifY statements made in E(~njunction~--~-it~ the · '~it application, to the extent that verification requires telecommunications expertise. (Section'9..5750, see chart at front of Chapter 9 for legislative history from 2/26/01 through 6/1/02:) · · 9.$800 TemDora.ry Activity special Development Standard,,,. · ~-~_~-,, (1) ' Purpose. The provisions of this section establish standards for temporary ~.· i . activities and uses that can be terminated and removed immediatelY. · .. Temporary uses have no inherent rights within the base zone in which they are located. .(2) Applicability. Prior to initiation of any temporary use, the operator shall ensure that the standards in this section are met. (3) Description. Temporary activities are short term or seasonal activities and do not require, permanent site improvements. Temporary activities inClude temporary uses that: (a) Are allowed by the zone but do not meet the normal development standards. Examples include, but are not limited to, Christmas tree sales or parking lot sales in a commercial zone; (b) If permanent, would not be allowed by the base zone. An example is a church carnival in a residentia! Zone. Temporary activities include, but are not limited to: a. Construction yard, staging area. b. Construction trailer. c. Leasing office. ~ d. Garag'.e sale. e.- Carnival and fair. f. Parking lot sale. g. Seasonal sale such as Christmas tree sale. h. Firework sale. i. Plant and produce stand. . . (4) GeneraI Standards. 'All temporary activities are subject to the applicable ~ standards listed below: (a) Permanent changes to the development site to specifically 9-239 01/02/2004 IV-17 Eugene COde accommodate the temporary activity are prohibited. ' (b) Temporary parking areas for use dUring the construction of a building. are alloWed on the development site only dudng the pedod of construction. They must be removedwithin 1 mOnth of issuance of a certificate of occupancy for the building. The land must be restored to the Condition it was in before the development of the temporary parking area unless an alternative development was approved for the location by the city. (c) All signs associated with the temporary activity must not be placed in the public right of way or vision clearance area and mUst .be removed when the activity ends. (d) TemporarY activities on development sites where the primary use is a conditional use may .not violate the conditiOns of approval for the primarY use. (e) -Notwithstanding any other provisions of this land use code, temporary activities and 'structures needed as the result of a natural disaster or. other health and safety emergencies are allowed for the duration of the emergency. (f) These regulations do not exempt the operator of any temporary activity -from any other required Permits such as, but not'limited to, sanitation facility permits or electrical permits. (g) A tempOrary construction trailer is allowed .on a construction site if a development permit application for a permanent Structure on the development site is submitted: to the city within 90 days of siting the temporary construction trailer. A temporary construction trailer may · remain on the development site until the construction is completed. ($) Zone Category and Duration. (a) In addition to the standards in subsection (4) of this section, the standards for temporary activities in areas with a broad zone category of agricultural, residential or S-H Historic zone (See Table 9.1030 Zones) are as follows: 1. Sales. ~ a. Garage Sales. Garage sales and other sales for items from ~ the development site*may occur for no more than 3 consecutive days on 3 different occasions during a calendar year. b.. Seasonal Outdoor sales. Seasonal outdoor sales of plants and Produce grown on the development site are allowed up to 2 consecutive weeks on 3 different occasions during a calendar .year. 2. Fairs, Carnivals and Other Maior Public Gatherin,qs. Fairs, carnivals, and other major public gatherings are allowed for up to 9 consecutive days at a develoPment ~ite zoned education, entertainment, government, recreation, or religious services. Three events are allowed per calendar year. (b) The standards for temporary activities in areas in the broad zone category of commercial', industrial, or special. (except S-H zones) are as follows:. 1. Parkin!:l Lot Sales. Parking lot sales in zones where outdoor i~ '/ merchandise display is not otherwise permitted are allowed for up 9-240 01/02/2004 IV-18 'Lq 1997 Eugene adopted Our telecommunication devised siting requirements and. procedures Section of our code, section 9.5750. The purposes of that.code were to: 1. minimize the number of towers throughout our community 2. encourage collocation of facilities ' 3.. encourage the use of existing buildings, or poles as opposed to constmctihg new towers 4. 'recognize the need of providers to build out their systems & 5. ensure that facilities are designed to minimize the visual impact On the immediate surroUndings & throughout the community, minimize public inconvenience & disruption. Go through numbers on chart. The code attempts to promote collocation by streamlining the process by allowing outright, antenna collocations in most zones and by putting restrictions and limitations on collocations in some of our more sensitive zones. ,- Regarding new towers~ our cOde all ws them outri dustrial and our commercial/industrial hybrid zone, C-4. Our code requires site review, a slightly more complicated process i~ Y~u're ih a public lands zone or some of our other commercial zones, and if the proposal is in our more sensitive single family, commercial and general office zOnes, a conditional use permit is required. New transmission towers are prohibited by our code in Agriculture, R-2, R-3, R-4, Historic, Natural Resource and Parks, Recreation & Open zones, in the Willamette Greenway, on Gillespie Butte above 450' in elevation, on the ridgeline defined in the south hills study or on Judldns point. Our code currently outlines submittal requirements for new towers and includes a requirement that documentation demonstrating compliance with non-ionizing electromagnetic radiation (NIER) emissions standards as set forth by the Federal CommUnications Commission. If a proposal is kicked into a site review or conditional use situation, if it's in one of those situations I described earlier, documentation also must -be submitted showing that alternative sites within 2000 feet have been considered and are determined to by unfeasible or unavailable, code asks applicants to consider sites that are in some of the less sensitive zones (industrial and heavy commercial). Also required is evidence that demonstrates it is impractical to collocate on tall buildings, light poles or eXisting towers and it outlines reasons that are acceptable about why it would be infeasible. New towers have to be at least 2000 feet away from towers that existed prior to adoption of the code in 1997. IV-19 New towers have to be constructed to allow future collocation. · Setbacks in the more sensitive residential, commercial or office (R-l, C-1 or GO)zones must be at least the height of the tower. In other zones, the setback is the same as any other use. Other regulations address landscaping, noise reduction measures, lighting, color,· and viewshecls. Our code has provisions to allow the city to require posting an open ended bond for removal, and we can charge a fee to recover our costs to retain consultants to verify statements made by an applicant if the verification requires telecommunications expertise. It is my understanding we have been inconsistent in requiring the bOnding and have not utilized the other provision at all. We now operate administratively within the Planning Division, and it will be our practice on all land use permits, to require bonding and the expert verification on all applications. Discuss both maps '" BUllets on Lane County (adopted April 2002): · Written for primarily rural areas with farm and forest zomgs with minimm parcel sizes of 25-80 acres · Has setback limitations of 1200 fxomall residences and schools. · Requires notification of properties within one half mile of tower · Has height limitation of 200' · Setbacks are at least the height of the tower · Requires bonding for removal IV-20 16.264 16.264 administrative civil penalty. Continued failure to comply with this chapter 10 days from the mailing of the notice of the failure 'to comply by registered or certified mail to the last known address of the alleged responsible person or after personal service, and continued. failure to comply after an order has been entered constitutes a separate failure to comply for each day the occurrence continues. The Manager of the Lane County Land Management Division, Department of Public Works, or said Manager's duly. authorized representatives, shall have the authority to issue a notice of failure to comply. (Revised by Ordinance No. 7-87, Effective 6.17.87; 1-93, 4.16.95) TELECOMMUNICATION TOYVER ST .ANDARDS RURAL COMPREHENSIVE PLAN 16.264 Telec'ommunicatibn Tower Standards. (1) Purpose. The prOvisions of this. section are intended to ensure that telecommunication facilities are located, constructed, maintained and removed in a manner that: (a) Recognizes the public need for provision of telecommunication facilities; (b) Allows appropriate levels of service to be obtained throughout the County; (c) Minimizes the number of transmission towers throughout the County; (d) Encourages the cOllocation of telecommunication facilities; and (¢) Ensures that ail telecommunication facilities, including towers, antennas, and ancillary facilities are located and designed to minimiz~ the visual impact on the immediate surroundings and throughout the county. Nothing in this section shall preclude collocation opPortunities nor adversely affect multiple use towers. Nothing in this section shall apply to amateur radio antennae, or facilities used exclusively for the transmission of television and radio signals; however, these uses are not exempted from applicable provisions in other sections of the code, including the requirement to obtain a conditional use permit to construct transmission facilities or modify existing installations. (2) Definitions. As used in LC 16.264, the following ,&ords and phrases mean: Ancillary_ facilities. The buildings, cabinets, vaults, closures and equipment required for operatiOn of telecommunication facilities including but not limited to repeaters, equipment housing, and ventilation and other mechanical equipment. Antennae. An electrical conductor or group of electrical conductors that transmit or receive radio signals, excluding amateur radio antennae. Attachment. An antenna or other piece of related equipment affixed to a transmission tOwer. .Collocation. Placement Of an antenna on an existing structure or building where the antennas and all supports are located on the existing structure or building. Provider. A person in the business of designing and/or using telecommunication facilities including cellular radiotelephones, personal communications services, enhanced/specialized mobile radios, and commercial paging services. Telecommunication Facility. A facility designed and/or used for the purpose of transmitting, receiving, and relaying voice and data signals from antennae, towers and ancillary facilities. For purposes of this section~ amateur radio transmission facilities and facilities used exclusively for the transmission of television and radio signals are not telecommunication facilities. Transmission Tower. The monopole or lattice framework designed to support transmitting and receiving antennae. For purposes of this section, amateur radio transmission facilities and 'facilities used exclusively for the transmission of television and radio signals are not transmission towers. 16-455 WD l/c/00056.Chapter 16.25,0-264/T IV-21 1'6.264 Lane Code 16.264' (3) APplication, Information and Processing Requirements. A new or replacement telecommunication facility may be allowed provided an application is submitted for Director approval pursuant to LC' 14.050, the application complies with the requirements specified in LC 16.264(3)-(6) below, and Provided the application is .approved pursuant ti) the requirements, of LC 14.300 for a hearing with the Director. Notice of the hearing shall be provided pursuant to the requirements of LC 14 and-to the owners of property within one half-mile radiUS of the exterior boundaries of the subject property and anY property contiguoUS to and in the same ownership as the subject property. (Maintenance and repair of lawfully (per LC Chapter 16) existing uses and development is considered a permitted use.) (a) Prior to submission of an application, the applicant shall provide notice and hold a meeting with area property owners as required in LC 16.264(3)(a)(i)-(iii), below. The applicant shall submit evidence of the notification and .meeting with the application. The application shall include' evidence of compliance with this requirement. (i) The applicant shall, at least fourteen (14) days but not more than thirty (30) days in advance of the meeting, mail notice of the.meeting to property owners and tenants living on property that woUld otherwise be notified pursuant to the requirements of LC 14.100 and to the applicable community organization recognized by the Lane County Board of Commissioners in Lane Manual 3.513 within the area in which' the proposed site is located. The notice shall state the date, time, and location of the meeting and that the topic of the meeting is to discUSs the proposed location of a telecommunication facility on the subject property 'and. to hear from area residents about any concerns they might have with the proposal. The notice shall state the Lane County' map and tax lot numbers for the subject i~-~Operty and the address for the subject property. (ii) The applicant shall, at least ten (10).days in advance of.the meeting, publish notice of the meeting in a newspaper of general circulation serving the area. The published notice shall contain at least the Same information as. required by LC 16.264(3)(a)(i) above for the mailed notice. (iii) The applicant shall conduct a meeting Within the general area of the proposed location of the telecommunication facility with the area property owners, tenants living on surrounding properties and interested parties to discUSs the proposed application to allow community concerns regarding the proposed tower to be addressed. Nothing in this subsection limits the applicant from providing additional opportunity for input from area property -owners and residents. (b) An application shall include the following information: (i) A description of the proposed tower location, design and height. When the proposed tower location is within 14,000 feet of an airport, the applicant shall show the tower height in relation to the imaginary surfaces for that airport and. demonstrate that the tower does not penetrate those surfaces. (ii) The engineered design capacity of the tower in terms of the number and type of antennas it is designed to accommodate and constructed in such a manner as to optimize performance and minimize visual impact; (iii) Signature(s) of the property owner(s) on the. application form or a written statement from the property owner(s) granting authorization to proceed with land USe and building permit application; (iv) A signed statement from the property owner indicating awareness of the removal responsibilities of LC 16.264(7Xd); (v) Documentation in the form of lease agreements, for the telecommunications facility that provide space for a minimum of three (3) users (the primary user and two (2) collocation sites); (vi) Documentation of lease agreements with a Federal Communications Commission (FCC) licensed provider; 16-456 WD l/c/00056.Chapter 16.250-264/T IV-22 i6'264, Lane Code 16.264 ..... (vii) Dooumentation demonstrating that the Federal Aviation )' . Administration (FAA) has reviewed and commented on the proposal, and the Oregon . Department of Aviation has reviewed and provided comment on the proposal. (viii) Plans showing how vehicle access Will be provided and documents demonstrating that necessary easements have been obtained; and (ix) Other information requested in the application form provided by the Director, such as but not limited to, peer review by an independent engineering firm of the proposed telecommunications facility system design. (e) . The applicant shall identify all existing towers, or properties that have obtained approval for a tower within ten (10) miles of the proposed tower location. The applicant shall provide evidence that collocation at all existing or approved towers within ten miles is not feasible, and provide documentation for locating a new tower, based on either of the following: (i) Lack of useable and compatible collocation space; (ii) Inability to meet service coverage area and capacity needs; or (iii) Technical reasons such as channel Proximity and inter- 'modulation. (d) The tower shall comply with all required State of Oregon and Federal licenses for telecommunication tower facilities. The application shall include a. certificati'on that the completed installation will cOmply with all Federal, state and local standards. The applicant shall submit documentation demonstrating compliance with non- ionizing electromagnetic radiation (NIER) emission standards as set forth by the Federal Communications Commission (FCC). (e) 'Factual information addressing compliance with requirements in LC. 16.264 (4) and (5), below. (4) Collocation Requirements for Telecornrn,mication Facilities. Collocation of a telecommunications facility on an existing structure or building is not subject to the land use application and approval provisions of LC 16.264 (3). However, collocation, of a new or replacement telecommunication facility may be allowed provided a land use application is submitted pursuant to LC 14.050 and approved pursuant to LC 14.100. The application for collocation may be allowed provided the'requirements in LC 16.264(4)(a) and (b) are met. (a) An application for collocation of a new or replacement telecommunications facility shall provide the information required in LC 16.264(3)Co)(i)- (ix) and (d). (b) Factual information addressing compliance with requirements in LC 16.264 (5) and (6), below. .(5) Siting Standards for Height, Setbacks and Access t° Telecommunication Facilities. The following standards shall apply to all new or replacement telecommuni- cation facilities. (a) Consideration shall be given to other sites in the service area that would have less visual impact than the site proposed as viewed from nearby residences and that the applicant has demonstrated,that less intrusive sites ar.e not available or do not provide the communication coverage necessary to provide the service. Visual impact can be measured by techniques including, but not limited to, balloon tests and photo simulations. Co) Telecommunication facilities shall be limited to the height necessary to provide the service, not to exceed 200 feet in height from ground level. (c) Directional / parabolic antennae shall be selected to optimize performance and minimize visual impact. (d) The setbacks for a tower shall be the setback otherwise allowed for · all other structures in the zone except that: 16-457 WE) l/c/O0056.Chapter16.250-264/T IV-23 16.264 Lane Code 16.264 (i) The tower shall be setback at least the height of the tower from an adjacent property line. (ii) A tract (contiguous property under the same ownership) shall be considered as' a single parcel for purposes of setbacks. (e) The proposed telecommunications tower is sited at least 1200 feet from nearby residences and schools not on the property owner/applicant, s tract or as far away from nearby residences and schools as it is sited from the closest dwelling on the property owner/applicant's tract, whichever is greater. (f) If access is obtained from a private road, the applicant shall be responsible as required by Oregon law for providing for improvements and maintenance to the private road that provides access to the subject property. In general, the applicant is responsible for impacts, to the private road as a result of activities conducted by the applicant. The applicant shall maintain ail necessary access easements and maintenance agreements for the private road as required by State law. " (g) In Forest zones, access from private roads and driveways shall comply With the Fire Safety Design Standards of LC 16.21 l(8)(e). (h) In Forest ZOnes, a fuel break shall extend 50 feet in all directions surrounding ancillary facilities containing propane or gas powered generating facilities. Vegetation within the fuel break may allow low shrubs (less than 24 inches in height). Trees shall be spaced with greater than 15 feet between the crowns and pruned to remove dead and low (less than 8 feet) branches. Nonflammable materials (i.e., rock) shall be placed next to the ancillary facilities. (6) Standards for Construction, Lighting, Signage and Fencing :of Telecommunication Facilities. The following standards shall apply to all new or replacement telecommunication facilities. (a) -The applicant shall submit a site-specific study of the tower site identifying the proposed color and surfacing of the tower and associated fnctures. Based on' the existing .conditions and vegetation at the proposed site, the tower must be constructed with material to reduce visibility of the tower by: (i) Use of non-reflective materials that minimize glare and are ~ colored similar to the sky Or adjacent background. A light gray shade is appropriate for blending the tower into the sky background. Nothing in this subsection preempts the coloring requirements of the Federal Aviation Administration or the Oregon Department of Aviation; (ii) Use of non-reflective materials' painted to match the existing or attached structure to blend into the surrounding environment; and (iii) Antenna and associated equipment located on the same · structure as the antenna shall be surfaced in a non-reflective material color to match the structure on which it is located. (b) An Oregon registered professional engineer shall certify that the construction of the tower complies with building code structural standards. (c) Prior to issuance of building permits for the tower, the applicant shall submit to the Building Official documentation from the Federal Aviation Administration, the Oregon Department of Aviation and any other local or state agency with jurisdiction that the tower has been reviewed and is not determined to be a hazard if constructed as proposed. (d) No lighting of communication facilities is allowed, except as required by the Federal Aviation Administration, Oregon Department of Aviation or 'other federal or state agency. Required lighting shall be shielded from the ground, to the extent practicable. Shielding of tower lighting onto nearby .properties shall be installed as part of construction of the tower. (e) Warning and safety signs,, up to three square feet in area, are allowed. All other signs are prohibited. 16-458 WI) l/c/00056.Chapter 16.250-264/T IV-24 16.264 Lane. Code 16.264. (f) Equipment areas must be enclosed by a chain link fence or eqUivalent with or without slats for screening. (7) Permit Renewal and Expiration Requirements for Telecommunication Towers. (a) Approved applications for telecommunication towers shall be valid until December 31st of the year following the date of final Lane County 'approval and shall be renewed every two (2) years, thereafter.. (b) Permit renewal is based upon the applicant submitting documentation that the telecommunications facility has complied with non-ionizing electromagnetic radiation (NIER) emission standards as set forth by the Federal Communications Commission (FCC) and.continues to meet any applicable conditions of approval by Lane County, including provision of an adequate current performance bond for removal bf the facility and restoration of the-site. (c) If a telecommunications tower is not constructed and placed into service within 2 years of issuance of an approved permit, the land use approval expires. (d) If the tower is discontinued from being used as a teleeommunieatioia facility for a period of one (1) year, the tower shall be removed. T° insure removal of the telecommunication facility, the applicant shall, as a condition of the Special Use Permit, provide a performance bond payable to Lane County and acceptable to the Director to cover the cost of removal of the telecommunications facility and restoration of the site at 'the time the facility is removed. The property owner shall be notified of the determination of discontinued use and the property owner shall be responsible for removal of the telecommunication tower and equipment facilities and securing any required demolition permits within the six (6) months immediately following cessation of the operation of the telecommunication facility. The property owner shall bear the ultimate responsibility for removal of the facilities and shall sign a document that is recorded in the deed history of the subject.property with Lane County Deeds and Records recognizing such responsibility. Any Special Use Permit granted for the .property will automatically expire upon removal. (Revised by Ordinance 4-02, Effective 4.10.02) 16-459 WD l/c/O0056.Chapter16.250-264/T IV-25 ITEM SU .MMARY. Meeting Date: October 14, 2002 Agenda Item NUmber: C Department: Planning and Development staff Contac/: Jerry ~IaCobson .www. cl. ~. gene. or. us Contact Telephone NUmbori 682~5896 · AGENDA ITEM. SUMMARY This work session on cell towers was requested by three city councilors. The purpose is to discuss the need to revise provisions for cell tower facilities contained'in the City Land Use Code, Eugene COde Section 9.5750, TelecommuniCation Devices.Si ..thug 'Requir.c~nents and Procedures. BACKGROUND Council Action History Following enactment of the Federal TeleCOmmunicatiOns Act of 1996; the City Council established the · Council Committee on Telecommunications (CCT). During the summer and fall of 1996, the CCT "~ developed policies to establish a framework for how' the City would address telecommunications issues. The CCT forwarded recommended policies to the City Council and, in November 1996, the council adopted th~ City 0fEugene TelecommunicatiOns Policies. Asa result, the CCT began immediately to · review prelimln~ry concepts for Land Use'Code amendments with City staff and the city Attorney. ' 'Because of the number of applications being received in advance of completion of the cCT work, the City Council directed that a moratoriUm be placed on neW applications for telecommunication facilities, which were being reviewed under the general conditional use permit criteria contained the Land Use Code. FolloWing a Planning Commission public hearing and recommendation, the City Council held a second public hearing and adopted amendments to the Land Use Code on February 24, 1997, adding a new seCtion to the Land Use Code: T~lecommunication Devices.Siting Requirements and'Procedures. There Were no substantial changes to this section of the'code as aresult of the recent adoption by the' council of the Land Use Code Update. Policy Issues The policy issues that need to be addressed at this work session are as follows: 1. Should the City begin a process of considering revisions to the Lsnd Use Code concerning telecommunication devices? 2. If so, which areas of this section of the Land Use Code are most important to consider (e.g., setback requirements, separation from Other towers, and zoning district requirement)? Council Goals Not applicable, P:~CMO~2002 Council Agendas~lO21014~SO21014C.wpd Eugene City Council Agenda page 17 IV-26 - FiUancial and/or ResOurce Considerations Review of the City's provisions for cell toW~ facilities i.s not on'the FY03 Planning CommiSsion work ' program and is not included On the list of post-LUCU work prOgram items.- Adding this item to the work program in FY03 would require delay in the LUBA remand work program. The post-LUCU work program is already len .gthy. If the council is interested in adding this review to the list, it would compete with the other post-LUCU work program items for Priority during the development of the Planning Commission work program for FY04 and beyond. Other Background Information An overview of the City's regulations for telecommunication facilities can be found on the attached memorandUm to Mayor Torrey and City Council from Jan Childs, dated December 13, 2001. The following paragraph updates that memorandum status report'on telecommunication facility siting since the February 1997 adoption of those regulations. since' enactment of the telecomm~nication facility code amendments, 33 building,permits have been issued (one in .1998, four in 1999, seven in 2000, 18 in 2001, and three thus far in 2002) for telecommunication facilities. Of the 33 building permits issued, only three involved the Site Review process. A total of eight site review applications have been received since the.enactment of the code 'amendments (two in 1999, two in 2000, and four in 2001), .all involving commercially zoned land. Of those received, three were approved, three were withdrawn, one was denied, and one is pending at the Court of Appeals (initially approved by the Planning Director and upheld by the Laud Use Board of Appeals). The relatively large number of building permits issued compared to the number of land use applications indicates that the tiered approach established in the code has served as an incentive to locate facilities where the process is much simpler; that is, in preferred locations. There have been no land use applications submitted at any time for cell towers in residential Zones. The number of contrOversial site r'eview applications received by the Planning Division has not increased Since the December 13,200i status report. The three applications noted at that time as controversial and pending (SR 01-5 - Verizon WirelesS, SR 01-32 - Sprint PCS, and SR 01'33 - Masters Towers LLC) have all been decided, except for Masters TowerS LLC which is currently Pending before the Court of Appeals. Verizon Wkeless (SR 01-5), involving an 80-foot monopole.located at 1859 Franldin Boulevard and zoned C-2 Community Commercial, was' originally denied by the Planning Director. This application was appealed by the applicant to the Hearings Official who overturned the piimning Director's decision 'and apProved the proposed monopole. 'Neighbors appealed that decision to the Land Use Board of Appeals (LUBA) which upheld the Hearings Official's approval. Sprint PCS (SR 01-32) was an application for a 120-foot monopole to be located at 1404 Villard Street adjacent to Williams Bakery on property zoned C-2 Community Commercial. The Planning Director denied the application, based on non-compliance with many of the approval'criteria. Unlike the VeriZon application which was in a area surrounded by commercial zo_n_ing and characterized by mixed.uses, the Sprint site was on the edge of commercial zoning, with an exclusively residential ares beginning ~. immediately adjacent to the south. In general, the Planning Director found that the cell tower Would be incompatible with the Surrounding property and that itviolated the requirement of a 2,000 foot separation from other towers (the approved Verizon tower was within 2,000 feet of the proposed Sprint ~ower). The findings of the Planning Director pointed out 13 sections of the code where the application failed to meet apprOval criteria, application requirements, or siting standards. The applicant appealed p:~CMO~2002 Council AgendssWl021014~S021014C.wpd Eugene City Council Agenda page18 1V_27 the Planning Director's denial to the Hearings Official who upheld the denial. The applicant did not appeal to LUBA. Masters Towers LLC (SR 01-33) was an application for a 100-foot tall flagpole-type tower to be located at,103 Oakleigh Lane (just Off of River Road) on property zoned C-2 Community Commercial. The' facility was originally proposed to include an American flag at the top in order to make it appear as a flag pole and thus further minimize its visual appearance as a telecommunication facility. That feature was removed in response to neighborhood objections to the flag. The antennas on the proposed Pole will' be enclosed within the pole. Surrounding properties .are all commercially zoned, with residential uses located fiu'ther east and west of the River Road commercial strip. The Planning Director approved the application, which was appealed by neighbors to the Hearings Official who upheld the approval. That decision was appealed to LUBA by a neighbor.' LUBA afl'rimed the decision of the Hearings Official. That decision was then appealed to the Court of Appeals where it is CUrrently pending. Finally, in the December 13, 2001 update memo it was noted that Lane County was.in the process of '. adopting specific requirements for teleCOmmunications facilities. 'Lane County adopted amendments in April of 2002. Although Lane County and Eugene's ordinances contain similar components, Lane County has structured its to address rural situations. Lane County did adopt Eugene's telecommunications ordinance for the Urban Transition area (the area outside the City limits but within the Urban Growth Bouna ). There are no timing requirements related to this item/ ~7~ ovTio s .g The council has requested an opportunity to discuss this item. .do~,c~ STArV Staffrequests City Council direction on this item. /.4 SUGGESTED MOTION ~ None. A rxcmv s A. Memorandum dated December 1~ 2001 B. List of Telecommunication Facility Locations C. Copy of Eugene Code Section 9.5750 I~R MORE INFORMATION 3~ St~'Contac~: Serry Jacob~on ' J ~av'~ . Telephone: 682-5896 StaffB-Mail: j 'y.p.j acobson®ci.eugene.or, us P:\CMO~2002 Counoil Ag~ndash'VI021014k~021014C.wpd Eugene City Council Agenda page19 IV-28 ATTACHMENT A Planning & DeVelopment .... . : Planning City of Eugene* Eugene, Oregon, 97401. (541) 682-5481 (541) 682-5572 FAX Date: December 13,200! To: Mayor T°rrey and CRy.Council From: Jan Childs, Planning Division (682-5208)~ · Subject: STATUS REPORT ON CELL TOWER SITING ISSUES This is in response to Councilor Rayor~s request for a status report on cell tower siting issues. This memo provides a brief review oft he City's response to the Federal Telecommunications . Act of 1996, an overview of the City' S.existing regulations for telecommunications facilities, information on telecommunications facility siting immediately prior to and since the February 1997 adoption of the City's telecommunications facility regulations and a summary of issues that have ariseri during review of recent Site Review applications for' telecommunications 'facillties. ~' ...... '~, City Re~oP~se to Federal Telecommunications Act of 1996 i... Following enactment of the. Federal Telecommunications Act Of 1996, the City Council established the Council CommiRee on TeleCOmmunications '(CCT). During the summer and fall of 1996, the CCT developed policies to establish a framework for how the City would address telecommUnications.issues. The CCT forwarded recommended policies to the City Council and,. in November 1996, the Council adopted the City of Eugene Telecommunications Policies. In July 1996, Planning and Development Department staffbegan receiving, a number of inquiries from telecommunications providers about the possible location of mmsmission towers and antennas within Eugene. Since the code did not specifically address telecommunications facilities, the City Attorney determined that review and approval for these facilities could occur · thrOugh the "ambiguity clanse" in Chapter 9. That clause allowed uses not recognized'in'the Code to be approved .through the standard conditional use process. Because of the number of apPlica~ons being received in advance of completion of the CCT work, City Council directed that a moratorium be placed on new applications. Applications received prior to adoption of the moratorium were exempted f~om the'moratorium. ~. In November 1996, the CCT reviewed preliminary concepts forLand Use Code amendments and directed staff to proceed. The draR. c0de langtutge prepared by staff and the City Attorney was based on information gained from telecommunication providers, the City's Telecommunications Facilities Siting Study, a.review of literature, evaluation of ordinances from other jurisdictions = and experience gained from processing the conditional use permit aPPlications submitted prior to ~r ~he moratorium. The P1 .~ning Commission held a public hearing on draft code amendments in Eugene City Council Agenda page21 IV-30 early February 1997. 'The City:CoUncil held a second public hearing and adopted the co& 'amendments on February 24, 1997. ' Overview of the City's Reeulations for Telecommunications. Facilities · Siting requirements and procedures for teiecommunications devices are found in Section 9.5750 of the Eugene Code I971. These sections were renumbered and reformatted for the newLand Use COde, effective August 1, 2001, but the requirements were not changed. A copYof Ordinance No. 20078, adopting the code provisions, was distributed in October 2001. The Land Use Code can be accessed at: www. ci.eugene.or.us\cityreco\citycodekindex.htm#contents. The following is a brief overview of the key features of the City's regulations. Tiered Review Process: A tiered review process was. established to recognize that some types of telecommunication'facilities, in some locations, may require more detailed review and a greater. opportunity for public involvement than .others. Under this approach, some types of facilities are · permitted uses; some require Site Review, an admini.qrative decision with appeal to ~e Hearings Official, and Some require Conditional. Use review, a Hearings Official'decision with appeal to' the Planning Commission. 'For example, collocation of an antenna on an existin__g transmission tower is a Permitted use in most non-residential zones; while constructi°n of a new transmission tower or modification to an existing trsn.m~ission tower is a conditional use in' the R-1 zone. This approach Provides an incentive to collate new antennas where possible, rather than conslructing new towers and an incentive to locate new towers' in industrial.areas where they would.likely have~a leSser impact than in other areas of the community. Application Requirements: The code contains a detailed list of information requi~d for all .. ..... applications. More detailed information is requiredforfacilities that'reqUire Site Review or Conditional Use review, including: a visual study showing the appearance ofthe proposed facility from at least 5 points.within a 3-mile radius; evaluation of alternative sites; .evalUation of co-location options; an overall system plan for the city, showing existing and planned fac'flities. ~tdmdardsfor' Telecommunications Facilities: The code includes a series of standards that govern the installation, Construction or modification of telecommllllications facilities. As with the tiered review process, some standards differ from zone to zone. For example, standards for locating a new telecommunications tower in a low-density residential zone are more restrictive with r~. ect to tower height, setback and buffering than standards for a new t~lecommunications tower in an industrial district. RemOval: To ensure that, over the long term as technology changes, telecommunicationS. facilities are removed when they are not longer in use, the Code allows the City to require that telecommunication providers post a bond to ensure that removal occurs, particularly for towers located in residential areas. Bonds to ensure removal were also required as part of the Conditional Use approval for towers that were exempted from the moratorium. Recovery of City Cost for Expert Advice: The code allows.the recovery of full cost of retaining consultants to verify statements made in conjunction with a building permit or land use application for a telecommunications facility .... IV-31 Eugene City Council Agenda page22 ...... Telecommunications Facility Siting Prior to and Since~the February. 1997 adoption of the ci _ty'.s : ._d~. T~iecommunications Facility Rec, ulations FOurteen applications were received prior to establishment of the moratorium preceding enactment of the City's telecgmmunications facility regulations. Two were .for antennas on existing facilities and required building permit review only. Of the-remaining twelve applications' eleven were approved with conditions and one was withdrawn. SinCe enactment of the teleCOmmunications facility COde amendments, 30 building p~'aits have been issued for facilities allowed'as a Permitted.use and eight Site Review applications have' b~en .submitted. No Conditional Use applications have been submitted. Of the eight Site Review applications, three were .approved, two are pending and three were withdrawn. One of the applications withdrawn, by Verizon Wireless. for'a 100-foot monopole, .was resubmitted by Verizon for an 80-foot monOpole as SR 01-5. This application, approved on appeal by the Hearings Official, is on appeal to the Land Use Board of Appeals. The relatively large number of building permit applications compared to the number of land use applications indicates that the tiered approach established in the code has served as an incentive to submission of' applications for preferred locations Issue~ in Recent Telecommunications Facili' _ty Applications Telecommunication facility siting has returned to the forefront recently due to opposition to · ' ~ applications submitted Outside the urban growth boundary in Lane County, near the University of "-,i ) Oregon and in River Road. In all three instances, issues raises have included both aesthetic and health concerns. Since local governments were pre-empted by the federal government from consid~ health concerns in teleCOmmunication facility siting decisions, health issues are not addressed by our current code and cannot be addressed by future code amendments. Three Eugene Site Review apPlications have proven controversial: SR 01-5, Verizon Wireless; · SR 01-32, SprintPCS and SR 01-33, Master Towers LLC. SR 01-5, Verizon Wireless is an application for an gO-foot monopole located at 1859 Franklin Avenue, between Franklin Boulevard and Garden Avenue. The property is zoned C-2 General CommerCial. A great deal of public testi_'_mony was submitted in opposition to the Site Review application~ Opponents in the immediate vicinity of fife.site indicated concern about visual · impacts on the residential character of Garden Avenue. Noise, P°tential'health risks, poor siting · and inadequate doc6mentafion of need at the proposed.location were of equal concern to opponenLs. Most opponents identified visual impacts on viewsheds and the general area (as an entrance to the City and University) as a secondary COncern. The Planning Director denied the application based on two Criteria: 'Compatibility with the surroundings...~ and ~Evidence demonstrating collocation is'impractical...' The Hearings Officialreversed the Planning Director and granted approval with a COndition requiring documentation of FAA approval prior to building permit approval, a standardCOndition in Site Review approvals of telecommunications facilities. The Hearings Official approval is on appeal to LUBA, with the appellants arguing that the Hearings Official erred in her decision with respect to compatibility, noise standards and Eugene City Council Agenda page23 viewshed requirements.. Oral argumentS.before LUBAare schedUl~.'for this.week ..The LUBA ... decision, and subsequent challenges beyond LUBA if filed, Will define the scope of:'surrouuding area' in which compatibility is to evaluated and the extent of the collocation'requirement. "~' ""' SR 01-33, Master Towers LLC is an application for a 100-foot monopole on property local~l at '103 Oakleigh.Lane. The property iszoned C-2 General Commercial. The primary Concerns raised in public testimony include incompatibilitY with the. adjacent residential areas and nearby school, decreased property values, a perceived laCk of need for additional telecomm_unications __m.'_c_e in the..vicini.ty .and po, t.en. fi.a}..heal, th a~..d safe~ risks associated with exposure to . ecuomagneuc ennsslons, r~elghborsspeclfically objected to. the proposal for a "stealth" designed flagpole with an American flag at the top. A Plmming'Director decisionis pending. SR 01--32, Sprint PCS is an application for a'120-foot mon0polelOcatedat 1404 Viltard Street'on property owned by W'ffiiams Bakery. The property is zoned C-2 General Commercial. The tower is proposed.to be a "stealth' design, a tall slender columu that contains the antenna arms within thc column. The Site. Review application includes a variance to EC 9.5750'because the tower is proposed within 2,000 feet of the already.approved,-but currently litigated, VerizOn Wireless telecommunications tower between Franklin Boulevard and Garden Avenue. This application was incomplete as originally Submitted; staff expects the additiohal material to be submitted within the next few weeks.- A decision will be issued within 45-' days after the reViSed application is deemed complete[ Although'a complete application has not been accepted,. publicity of the proposed site in a Register-Cruard article has'generated.many.letters and - petitions, largelyin opposition to the proposed tower.'. Visual impact, decreased property values and health concerns are the primary issues raised in public-testimony received so far. Citizen concern'about applications Submitted outside the urban growth boundary has resulted in work by Lane County to update the County code'to adopt specific requirements for telecommunications, faCilities. County staff reviewed code provisions from eight Oregon cities and counties 'and borrowed .liberally from the Eugene and Polk County codes in developing draft COde amendments. The Lane County Planning Commission held a public hearing on the proposed code amendments in November 2001 and is scheduled to forward a recommendation to the Board on December 18, 2001. Public hearing and actiOn by the Board will be scheduled for early 2002. If you have any questions, please Call me'at 682-5208. IV-33 Eugene City Council Agenda page24 ·" CommunicatiOn Facility LocationsATTACHMENT ~<3-.x0-1197-1' Addr~a U S WEST WIRELESS ' 4683 ISABELLE ST i )0.1400-1 · 'AIRTOUCH CELLULAR 1210 WILLAGILLESPIE RD 0-1787-1 ' N-EXTEL COMMUNICATIONS INC 2503 LAWRENCE ST 0.3354.1 VOICESTREAM WIRE. LESS 1601 OLIVE ST · 0.3899-1 N'EXTEL COMMUNICATIONS INc 29786 KELSO ST 0-5096-1 VERIZON WIRELESS 2505 . LAWRENCE 'ST 0-5347-1 NEXTEL COMMUlqlCATIONS INC 29786 KELSO ST .1-1973-1 SPRINT COMMUNICATIONS . 119 N GARFIELD ST 1-333-1 N-EXTEL COMMUNICATIONS INC 2402 W 00011 TH' ' AVE 14093-1 · MASTER. TOWERS 2002 KINTYRE ST 1-4216.1 MASTER.TOWERS 103 S DANEBO AVE · 1~457-1 MASTER TOWERS 72 CENTENNIAL LP 1-4491-1 CRICKET OREGON PR.OPER.TY CO 1035 BETHEL DR 1-4574.1. CRICKET OREGON PROPERTY CO 2620 RIVER RD 1-4615-1 cRICKET OREGON PROPERTY CO 1255 HILYARD ST 1-4740-1 CRICKET OREGON PROPERTY CO . 222 E BROADWAY.' 1-5003-1 CRICKET OREGON PR.OPERTY CO 222 E BROADWAY 1-5056-1 CRICKET OREGON PROPERTY CO ·1210 WILLAGILLESPIE RD 1-5074-1 CRICKET OREGON'PROPERTY CO 29786 KELSO .sT 1-5075-1 CRICKET OREGON PROPERTY CO 65 W 00030TH AVE 1-5094-1 CRICKET OREGON PROPERTY CO 3815 WILLAKENZIE RD 1-5116-1 CRICKET OREGON PROPERTY ~O 2402 W 00011TH AVE 1-5303-1 MASTER TOWERS 103 S DANEBO AVE ...... 1-54.66-1 CRICKET OREGON PROPBR, TY CO 3040 N DELTA I-IWY · ~ 1-5467-1 CRICKET OREGON PROPERTY CO 796 ,W 00013TH' AVE )2-1936-1 VERIZON WIRELESS 1848 GARDEN AVE 2-4573-I A. T & T WIRELESS SERVICES 72 CENTENNIAL LP 2-4942-1 SPRINT P C S 72 ' CENTENNIAL. LP, 98-8130-1 ' .- USWESTWIRELESS LLC 3556 W 00011TH AVE 99-3913-1 CITY OF EUGENE - FIRE STATION 6 2435 WILLAKENZIE RD 994480-1 U S WEST WIRELESS 28855 LOCKHEED DR 99-4480-1 CITY OF EUGENE - PW AIRPORT . 28855 LOCKHEED DR 99-5543-1 N-EXTEL COMMUNICATIONS INC 3040 N DELTA ' 99-5881-1 HILTON HOTEL 66'E 00006TH AVE Eugene City Council Agenda page25 ATrAC~ C ,-.--.,, 9,5750 T~lecommunicaflon Devicep'Siting Requirements and Procedures. ' ~ ~*'~ (1) Purpose. The provisions oft his section, are intended to ensure that ~ ) 'tele~ommtmication facilities are located, installed,' maintained and removed itl a manner that: . (a) Minimi?es the number of transmission towers throughout the community; (b) Encourages the cOllocation 0ftelecommunication fac!lities; (c) Encourages the use of existing buildings, light or utility poles or water towers as opposed to construction of new telecommunication tOwers; (d) Reco~yniTes the need of telecommunication providers to build out their systems over fi~e; and (e) Ensures that all telecommunication facilities, including towers, antennas, and ancillary facilities are located and d~signed to minimize the visual impact on the immediate surroundings and throughout.the community, .. and minimiTe public inconvenience and disruption, Nothing in this · section shall applyto amateur radio antennas., or facilities used exclusively " for the transmission of television and radio signals; . ...(2) · Siting Restricted. No telecommunication facility, as defined'in this land use .code, may be constructed, modified to increase its height, installed or othex~vise located wit~hin the city except as prOvided in this section. Depending on the type and lOcation of the telecommunication facility, the telecommunication facility shall be either an outright permitted use, subject to site review procedures,, or 'require a conditional use permit. (~' '."'"'t. ' (a). Outright Permitted U~es. No land use Permit is required for a ) " telecommunication facil.ity Which, pursuant to subsections (3) through ($) of this section, is an outright permitted use. Such a telecommunication facility Shall require only a development permit or permits. (b) Site Review. A telecommunication facility which, pursuant to subsections '(3) through (5) of this section, is subject to site review.shall be processed in accordance with the site review procedures of this land use code. The criteria contained in this section, as well as the criteria contained in EC 9.8440 Site. Review Approval Criter~.'a = General, shall govern approval 0r denial of the site review, application. In thc event of a conflict in criteria, the criteria contained in this section shall gOver~ No development permit ..shall be issued prior to completion of the site review process, including any lOcal appeal. (c) Conditional Use Permit. A telecommunication facility which, pursuant to subsections (4)"or (5) of this section, requires a conditional use permit shall be.processed in accordance with .the.conditional use permit ' proc~lures of this land use code, except that the variance provisions shall not apply. The criteria contained in EC 9.8090 Conditional Use Permit Ap_re'oval Criteria, General and subsections (6) and (7) of this section shall govern approval or denial of the conditional use permit application. In the event ofa conflictin criteria, the criteria contained in subsections (6) and (7) of this section shall gover~ No development permit shall be ',, issued prior to' completion of the conditional use permit process, including · Eugene City Council Agenda page27 IV-36 · O) Con6eation of Additional Antennas on Existing TransmissiOn'Tower. (a) P~t;l;aill~. Collocation of an additional, antenna on an existing transmission tower shall be considered an outright permitted use if property is zoned OO~ PL, S, C,2, C-3, C-4, I-i, I-2, or I-3 Or ifthe .transmission tower is in any other zone and the city specifically approved, as part ora prior land use process authorizing the transmission tower, collocation of additional antennas. CO) Site Review. Collocation of an additional antenna on an existing transmission tower shall be Subject to site review approval if property is 'zoned AG, R,1, C-1 or PRO and. ap. proval for collocation was not granted through a Prior land'use process, :'(4) Collocation.of Antennas on Existing Buildings, Light or Utility Poles, and Water Towers. In addition to collocation on a tr0nsmission tower, an antenna may'be collocated on existing buildings, light or utility poles, and ~vater towers. (a) ?_~a~[~. Suc~h collocation on a buildinff, light or utility pole, or water tower, shall be Considered an outright permitted use provided that .' the antennas and. ancillary facilities.comply, with the .standards contained· · in EC 9.5750 .Telecommunications Devices. Sitin~ Reauirement~ and .... procedures, the color of the antennas blends in with the existing structure and surroundings, and one of the following is met: · 1. The property is zoned PL, C-2, C-3; C4, R4, I-1, I-2, or 1-3 and -'. the antennas do not exceed the height, limitation of the zone; or 2. The pr.operty is zonedAO, R,1, R-2, R-3, C-l, GO, S, H, or PRO, and the antennas extend no more ~ 18 feet above, and project no · more than 2 feet horizontally away fxom the existing structure. (b) ·Site Review. Such collocation on a building, light or utility pole, or water tower shall be subjectto site review approval provided ti!at the antennas and ancillary facilities comply with the.standards contained in EC 9.5750' TelecommunicatiOns Devices-Siting Rea_trireme_ts and Procedures. the color of the antennas blend in with the existing structure and surroundings, and: ' 1. The property'is zoned AG,-R-1, R-2, R-3, C.1, GO, S, H, or PRO, and the' antennas extend more than 18 feet above, or project more than 2 feet horizontally away from the existing structure. (c) . Conditional Use permit. In all cases other than those listed in' subparagraphs(a) and Co), such collocation shall require a conditional use permit. No exceptions to the standards contained in EC ~.5750 Telecbmmunications Devices-Siting R~uirements and Proce4ures Shall 'tm permitted except as aUthoriz~ by subsection (9) of this section. In no event, shall a conditional use permit authorize a tower.or antennas to exceod the height limitation for a zone as established by Chapter 9 except as provided for in this section. (5) Construction of Transmission Tower. Construction of a transmission tower, or a modification of an existing transmission tower to increase its height, shall be IV-37 Eugene City Council Agenda page28 ,' ..... ~ . allowed as follows: 1. Such construction or modification Shall be considered an outright ... permitted use in the C-4, I-1, I-2 and !-3 zone. 2.. Modification to increase the height of an existing transmission tower shall be considered an outright permitted use in all other · zones if the city approved an increase in tower height, as part of a. prior land use process authorizing the transmission tower. The increase in height allowed under this paragraph shall be.limited to the specific height authorized in the prior land use process. (b) Site Review. Such construction shall require site .review approval, in the - PL; C-2, and C-3 zones. - (c) ..Conditional Use Permit. Such COnstruction shall require a COnditional use permit in the R~l, C- l, S and GO zo/les. (d) Prohibited Zones and Locati0n.~. No new transmission tower shall be permitted in any zones not included in subparagraphs (a) to (c) above, including the AG, R-2, R-3, R-4, H, NR, and PRO zones; or in the. - Willamette Crreenway, on Gillespie Butte above the elevation of 450 feet, .. on the ridgeline as defined in the South Hills Study or on Sudkins Point. · (6) .Applicaiion Requirements. · (a) Collocation of Antenn~: In additionto standard required application · ' material, an applicant for collocation of antennas shall submit the' i~i~'. -. following information; additional application material is required, as · . 'specified in paragraph (c) below, for applications' requiring a site review or conditional use process. .~ ....... 1. A description of the proposed antennas location, design and height. 2. Documentation demonstrating. compliance with non-ionizing · electromagnetic radiation (NiER) emissions standards as ~et forth · by the Federal Communications Commission (FCC) particularly with respect to any habitable areas within the structure on'which the antennas are co-locating on or in structures direly across from or adjacent to the antennas. ' 3. A statement documenting that placement of the antenna is designed to allow future collocation of additional antennas if technologically possible. 4. Documentation that the ancillary facilities will not produce sound lev, els in excess of those standards specified in subsection (7)(0 of this section, or designs showing how the sound is to be effectively muffled and reduced pursuant to those standards. 5. PIans showing the connection to utilities/right-of-way cuts required, ownership of utilities and easements required. 6. DoCuments demonstrating that necessary easements have been obtained. 7. - Plans showing hoTM vehicle access will be provided. · ! 8. Signature of the Property owner(s) on the application form or. a Eugene City Council Agenda page29 IV-38 statement from thg property owner(s) granthag authorization tO proceed with. development permit and. land use .processes. · :'.' 9. If ancillary facilities will be located on the ground, a landscape plan drawn to scale showing proposed and existing landscaping, · including type, spacing, size and krigation methods. 10. DocUments demonstrating,that the FAA has reviewed and approved the proposal, .and the Oregon Aeronautics Division has reviewed the Proposal. Alternatively, when a site'review or " conditional use process is required; submit a statement docUmenting that notice of the proposal has been submitted to the FAA and OregOn Aeronautics Division.' The site review or conditional use process'may proceed and approval may begranted · :.:.' "for the proposal as submitted,'subject to FAA approval. If FAA approval.requires any changes to the proposal as initially approved, then that initial approval shall be void. A new application will 'need to be submitted, reviewed and approved through an additional .. -site review or conditional use process: No development permit ' application:shall be submitted without dOCUments demonstrating FAA review and approval and Oregon AeronautiCs Division review. (b) Construction. of Transmlssion Tower. In adch'tion tO standard required · appliCation material, an applicant for a transmission tower shall submit the following information; additionaI application material is required, as '. spec~ffied in paragraph (c) below, for applications requiring a site reView Or - conditional use procesS: 1.' A description of the p.ro. P6sed tower location, design-and Might. - 2. The general capacity of the tower in terms of the number and type · ' of antennas it is designed toaccommodate. 3. DocUmentation demonstrating compliance with non-ionizing electromagnetic radiation (NIER) emissions stan~ as set forth by the Federal Communications Commission (FCC). 4. A signed ag~ement, as supph'ed by the city, stating that the " applicant will allow collocation with other users, provided all Safety, structural, and technological ~luirements are met. This agreement shall also state that any future owners or operators will allow collocation on the tower. 5. DocUmentation that the ancillary,facilities will not produce sound levels in excess of those standards specified in Subsection (7) of this section, or designs showing how the sound is to be effectively muffled and reduced pursuant to. those standards. 6. A lan~lscape plan drawn to scale showing proposed and existing landscaping, including type, spacing, size and irrigation methods. 7. Plans showing the connection to utilities/right-of-way cuts required, ownership of utilities and easements required. 8. DocUments demonstrating that necessary easements have been Eugene City Council Agenda page30 ,' -~' " 91 P!ans showinghow vchi~e access will be provided; .'. i ) 10; S~gnatu~e of the property owner(s) on the applicatiOn form or a " statement from the property owner(s) granting authorization to · ,proceed with'development permit and land use processes; 11; Documents demonstrating that the FAA has reviewed and approved the proposal, and Oregon Aeronautics Division has reviewed the proposal. Alternatively, when a site review or conditional use process is required, submit a statement dOcumenting that notice of the proposal has been submitted to the FAA and0regon Aeronautics DiVision. The site review or conditional use process may proceed and approval may be ~ranted for. the proposal as submitted, subject to FAA approval. IfFKA approval requires, any changes to the proposal as initially approved, thenthat initial approval shall be void. 'A new application will · need to be submitted, reviewed and approved through an additional · site review or Conditional use process.. No development permit application shall be submitted without documents demonstrating · FAA review and approval and Oregon Aeronautics Division .....(c) '..Site Review and Conditional Use permit Applicati0n.~. In addition to the appliCation requirements specified in parat~ph Co) above, applications for " '~ site review or.conditional use permits also shall include the following .." information: 1. A visual study eontaining,.ata minimum, a graphic simulation · ' showing the. appearance of the proposed tower, antennas, and ancillary facilities from at least 5 points withi~ a 3 mile radius. Such points'shall be chosen by the provider with review and approval by the planning director to ensure that various potential .views are represented. 2. Documentation that alternative sites within a radius of at least 2000 feet have been considered and have been d~termined to be technologically unfeasible or unavailable. For site reviews, alternadve sites zoned C4, I-l, I-2, and I-3 must be considered. 'For conditional use permits alternative sites zoned PL, C-2 and C- 3, C4, I-l, I-2, and I-3 must be considered. ~3. Evidence demonstrating cellocation is impractical, on existing tall buildings, light or utility poles, water towers, existing transmission towers, and existing tower facility sit~s for reasons of structural ~upport capabilities, safety, available space, or failing to meet service coverage area n~l~. '. · .. 4. A eur~nt overall system plan for the city, showing facilities presently constructed or approved and future expansion plans. , 5. A stat~nent providing the reasons for the location, design and ~ . height of the proposed tower or antennas. Eugene City Council Agenda page31 (7) Standards for Transmission Towers and. Antennas. Installation, co--on or modification of all transmission towers, and antennas sb~ comply with the "i following standards, unless a variance is obtained pursuant to the provisions of ""' · subsection (9) of this seetioni - (a) Separation BetWeen Tra,.qm!ssiQn Towers.. NO trans~ssion tower may be constructed within. 2000 feet of any·pre-existing lxansmission tower. Tower separation shall be measuredby following a straight line from the · portion of the base of the proposed tower which is closest to the base of any pre-existing tower. ForpUrPoses of this paragraph, a tower shall- include' ' ' ' ' · any transtmsslon tower for which the city has issued a development permit, or for which an appliCatiOn has been filed and not · . denied, Transmission towers constructed or approved prior to February "~ 26, 1997.may be modified to accommodate additiOnal providers consistent .- with provisions for colloCation'in this section. (b)' Hei_~ht Limi_tation: TransmisSion tower heights shall, be governed by this 'section except as provided for below. No transmission tower shall exceed the maximum heights provided below~ '~n no case shall a variance be granted from the limitations'of subparagraphs (1) through (4) below. 1. in any zones, no transmission toWer shall exceed the height limitations established for buildings and structures in the specified areas, s~~g Skinner Butte contained in EC 9.6715 ~ Limitation Areas of this land use code to protect views to and from SkinnerButte. . .~" 2. In any ZOne within the area east of Willagillespie Road, south of ':...: -'~ Col Young Road, west of Oakway Road, and north of Southwood Lane and Country Club ROad, no transmission tower shall exceed 75 feet in heightto protect views to .and from Oillespie Butte. 3. IfloCated within a PL, C-2, C-3, C-4, R-4, Iq, I-2 or I-3 ~ne, the -.. height limitation, for that zone shall apply. 4. ' If located withiti -an C-l, S or OO zone, the maximum height of a transmissiOn tower, 'including antennas, is 100 feet. 5. Iflocated wlthin an R-1 zone, the maximum height of a transmission tower, including antennas, is 75 feet, unless a variance is granted pursuant to the provisions of subsection (9) of this section. In no event shall a variance be granted to conslmct · such a tower in excess of 100 feet. · (c) 'Collocation. New transmission towers ~hall be designed.to accommodate collocation of additional' providers: 1. New transmission towers ora height of 80 feet or more shall be designed to accommodate collocation of a minimum of 2 additional providers either outright or through future modification to the tower. 2. New transmission towers of a height of at least 60 feet and no · more than 80 feet shall be designed to accommodate collocation of. '. a minimum of 1 additional provider either outright or through :...:::. IV-41 Eugene CRy Council Agenda page32 ""ii'5. future'modification to the tower. .: i (d) Setback. The following setbacks from adjacent property lines and " adjacent streets shall be required unless a variance is granted pursuant to the provisions' of subSeeti0n (9) of this Section: 1. If located within a PL, S, C-2, C-3, C'.-4; I-1, I-2, or I-3 zone, no setback from adjacent property lines shall be require~i beyond that required by this land use code or the provisions applicable to the S ZOIleo 2~ If located within an R-l, C;1, or Cfi) zone, the transmission, tower shall be set back from adjacent property lines a minimum number · of feet that is .equal to the height of the transmission toTM. 3, In the R-l, P L, C-1 and GO zones, transmission towers shall be set back from adjacent public street(s) a minimum_ number of feet that · is equal to the height of the tower. In all other zones, the setback .from adjacent public streets shall be a minimum of 25 feet. (e) ~. In all zones, existing vegetation shall be preserved to the maximum extent possible.. In the C-4, I-1, I-2 and I-3 Zones, no buffering is reqUired beyond that required by this land use code. In all 'other zones, · ~. landscaping shall.be placed completely are .und the transmission tOwer and anoillary facilities located at groundleVel except as required to access the . facility. Such ..landscaping shall consist of evergreen vegetation with a ::.. ,. minimum planted height of 6 feet plac.ed densely So as to form a screen. ~ Landscaping shall be compatible with other nearby landscaping and. shall ':..~ ~i be kept healthy and well maintained. ::. (f) Noise Reduction. In R-l, R-2, R-3, R4, C4, and G-O and in all other zones when the adjacent property is zoned for residential use or occupied by a dwelling, hospital, school, library, or nursing home, noise generating equipment shall be sound-buffered by means of baffling, barriers, or other suitable means to reduce sound, level measured at the property line to 45dBa. (g) 'Status of Location. No permit may be issued for the location of a new telecommunications facility within an R-1 or C-1 zone unless the lot on -. which it is to be placed is vacant or developed witha non-residential use at the time the permit application is submitted. This restriction does not , apply within other zones. (h) Lig. hting. No lighting shall' be pemfitted on'transmission towers except 'that required by the Federal Aviation Administration. No high intensity white lights may be located on transmission towers in an R-I, C-I, or PRO zone. (i) Color. The transmission tower.and attached antennas shall be unpainted galvanized steel or painted neutral colors or such shades as are appropriate. and compatible with the surrounding environment, as approved by the city. (j) Viewshed, The transmission tower shall be located down slope from the , top of a fidgeline so that when viewed from any point along the northern ' IV-42 Eugene City Council Agenda page33 '9.5750 Ellgene Code .. .right'Of-way line of 18th AvenUe,. the tower does not interrupt the profile 'of the ridgelhl, e or Spencer's Butte. In addition, a transmission tower shall not interrupt the profile of Spencer Butte when viewed 'from any location in Amazon Park. Visual.impacts to prominent views .of Skinner Butte, ' Judkln.q Point, and Oillespie Butte shall be minimiTed ~ the greatest extent possible. Approval for location of a transmission tower in a prominent view of these Buttes. shall be given only if location of the transmission tower on an'alternative site is not possible as documented by application materials submitted by the applicant, and the transmission :tower is limited in height to the minimum height necessary to provide the -'·~'? approximate coverage the.tower is intended to provide. (k) Display. No signs, striping, graphics or other attention getting devices are permitted, on the.transmission tower or ancillary facilities except for warning and safety signage with a surface area of no more than 3. square feet. Such signage shall be affixed to a fence or. ancillary facility and-the number of sigx~.q is limited to no more than 2. (8) Standards for Ancillary Facilities. All ancillary facilities shall complY with the standards of subsections (7)(e) and (7)(0 of this section. In addition, all ancillary facilities within an R-1,PL, C-l, GO, and PRO zone must be located underground to the maximum extent technology.allows, unless a variance is obtained pursuant to the provisions of subsection (9) of this section. This restriction does not apply within other zones. (9) VarianCe, (a) Any variance to the requirements of this section shall be granted only pursuant to the following provisions. The criteria for granting a variance shall be limited to this section, and shall not'include the standard variance criteria beginning at EC 9.8750 Purpose of Variances. (b) The city may grant a variance from the provisions of subsectiOn (TI(a) of this section providing the applicant demo~rates that: 1. It istechnologicallY impossible tO locate the proposed tower on available sites more than 2i000 feet' from.a pre-existing transmission tower, and still provide the approximate coverage the tower is intended to provide; . 2. The Pre-existing transmission tower that is within 2,000 feet Of the proposed tower cannot be modified to accommodate another provider; and 3. There are no available buildings, light or utility poles, or water towers on which antennas may be located and still provide the approximate coverage the tower is. intended to provide. (c) The city may grant a variance to the setback and undergrounding requirements of subsections (7)(d,) or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. IV-43 Eugene City Council Agenda page34 9.-5750 " Eugene Code 9.5800. (d) The citY may granta variance to the 75 foot height limitation ia me R- 1 zone to a maximum of 100 feet providing 'the applicant demonstrates that a transmission tower taller than 75 feet will directly ~limiaate the need for 1 or more additional transmission towers in an R-1 zone. (e). 'If the proposed transmission tower or ancillary facility requires site review or a conditional use permit, the request for variance shall be considered as part of the site review or c. onditional us~ permit process. If the proposed trahsmission tower or ancillary facility' is an outright permitted use, the request for a variance shall be processed pursuant to Type II application procedures beginning at EC 9.7.2.00 Oeneral Overview of Type Il Application Pmcedure~ except that the decision shall be based on the criteria in: this section. (10) Removal. Of Facilities. (a) All transmission toWers and antennas shall be removed by the person who constructed the facility, by the person who operates the facility, or by the property owner, within 6 months of the time that the facilities have ceased · being used to transmit, receive or relay voice and data signals to or from wireless communication devices. The city-manager may grant a 6-month extension where a written request has been filed, within the initial 6-month period, to reuse the tower or antennas. (b) If a transmission tower is located within an R-l, PL, C-1 or GO zone, the provisions of subparagraph (a) also shall apply to the tower substructure and all .above ground ancillary-facilities. · (c) The city may require the posting of an open ended bond before development permit issuance to insure removal of the transmission tower, substructure or antennas after the facility no longer is being used. (11) Fees. NOtwithstanding any other provision of this code, the city manager may require, as.part of application fees for building or land use permits for telecommuniCation facilities, an amount sufficient to recover all of the city's costs in retaining consultants to verify.statements made in conjunction with the permit application,, to the extent that verification requires telecommunications expertise. (Section 9.5750, see chart at front of Chapter 9 for legislative history from 2/26/01 through 6/1/02.) IV-44 Eugene City Council Agenda page35 .Bucke Gordon ,,,. 2025 First Avenue, Suite S00 Seattle, WA 98121-3140 Attorneys at Law 206-382-9540 206-626-0675 Fax · ' ' ~www. buckgordon corn August 23, 2004 VIA FACSIMILE and US MAIL Jerome Lidz City Atto rney City of Eugene 360 E. 10th Ave., Ste 300 Eugene~ OR 97401 Re: . Comments regarding Proposed'Amendments to Wireless Ordinance · Eugene Code Section 9.5750 Dear Mr. Lidz: As. we discussed last week, AT&T Wireless Services ("ATTWS") is concerned that several Of the City's Proposed'changes to its. wireless ordinance may negatively affect ATTWS' ability to provide consistent and effective wireless services to its customers living and working in the City of Eugene. This letter sets forth ATTVVS' initial comments regarding the proposed amendments and recommends several changes to the proposed language. ATTWS reserves the opportunity to modify and/or supplement these comments as the proposed amendments are considered Dy the City's Planning Commission and City Council. For ease of reference, we have reproduced the prOposed amendments below, followed by our comments in italics. 9.5750 Telecommunication Devices-Siting Requirements and Pr0cedur~~. (7) Standards for Transmission Towers and-Antennas. Installation, construction or modification of all transmission towers and antennas shall comply with the followir)g standards, unless a variance is obtained pUrsuant to the provisions of sUbsection (9) of this section: (d) Setback. [Thc ~"~",: .... *~'~'~'" from ~j ...... r' vr~,-; ...... and pursuant to [thc .....:~:~"' of] subsection (9) of this section, .new tra#$mission to,ers, and any e~fsti~ transmissio# t¢w¢r h ein.q mod~fled to Increase i~ hei~h~ shall be set hack no/ess than all of the fo//ow/n~ dlstance~, i~applicahle: f, 1000 fa'et ~rom a public school/ 2. 800 feet from al/ reslden~ial/y ~onedProperty/ a~required by this land use i:ode or the provisions applicable to the S zone6); Y:%WP'~AT'r~EUGENE~COMMENT LTR 082304.DOC IV-45 Jerome Lidz - 2'-. AuguSt 23, 2004 ~,/, 'If located.within an [R I], C-1 [7] or GO zone, the [?:n:m!c:ion tawar ......................... J ...... ~, ~,-z ...... ~ mm:mum] number of feet that is equal to the height of the [~] tower, ~ number of feet that is equal to the height of the tower,' ~ m.:,,:mum ~ ] 25 feet ~om a cen~ A ~S Commen~; .. The ad~tion ora YOO~foot setback ~om pub~b schools'and an 800-~ot setback ~om residential zones could dramatical~ a~ A ~S' abili~'to provide wireless s~ice within Eugene. This impa~ couldrise to the level ofa prohibition of se~ce in violation ofthe Federal Telecommunications A~ 47 ~ C ~332(c)(~(B)(1~ · Locating wireless communication ~c#ities in neighborhoodcommerciaizones (Eugene ~ C- T zone) is o~en the best option for se~ing the surroun~g residentialareas. The proposed 800-foot setback from redde ntialzones would~e~ eb~inate many neighborhood commercial optiO n~ thereby making it more di~cult fora ~S and other- wire[ess ~rriers to meet the se~ice needs of their custome~ in Eugene. ·. In eva[uating these proposedamendme~ts, it W°u[dbe he~fu[ to understand the policy choices underdog these changes. For example, it is not clear why the Ci~proposes prohibiting wireless transmiss~bn towers within ~0 ~et of public schools. Prior experience leads us to conclude that the Ci~ is a~empting to allay ~ncerns regar~g the alleged health e~cts of wireless ~c#ities on children. As the Ci~ is aWam, the Federal Te[ecommunicatlons A~prohib[~ cities anti,unties ~om regulating the p[acemen~ con~ru~ion or modi~cation of wire[ess ~mmunication ~cilities. based on. c° n~rns regar~g radio frequency emissions where the ~reless ~cili~ meets FCC standards. 47 · ~ C ~332{c)~)(B)(~. The Ci~ maynot use setbacks to subve~ thisprovision of~dera[ [a~ In a~y case, because these setback requirements wouldapp~ on~ to new and e~ended transmission tower~ this proposed amendment would not a~e~ ~reless carrie~' abili~ to locate wireless communication facilities on bail ~eld~hts or utiii~poies closer than ~000 ~et to a public school · The proposed fOO~foOt setback and 800~ot setback he,me pa~ular~o~bitive when app[ied in conjun~ion with the separation mquiremen~s estab~hed ln existin~ subse~ion (7](a). The combination of these ~o se~ions could create a d~mstan~ in ~ which a wireless carrier cannot collocate on an existing transmission tower because it does not meet these setback ~quirement~ but also cannot ~n~m~ a new ~d[i~ outside of the setbacks because that ~ci[i~ would be within 2000 ~et of the existing ~ci~ located within the setbacks. The standards for a variance ~om e~er these setbacks'or the separation requirement are too stringent to e~e~ive~ ~solve this con~i~ EC ~ 5750(g)(b](f) andproposed EC ~ 5750{g)(c). As a resul~ we request and recommend that the Ci~ modi~ the proposed amendments to address this issue, po~sib~ by eb~inating 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 Jerome Lidz - 4 - August 2'3, 2004 q°mrnunications. As a result, .we request and recommend that the City e{iminate this provision ) from itsProposedamendments to its wireless ordinance. ' (9) Variance. (c) The city may grant a variance to the setback ~qu/reme##s of' .. subsect/on (Y)(d)! and2 onlyifthe applicant demonstrates to the f, That the applicant ia unable to Provide service to a substantial portion of the ci~y and also comply with the setback requirements; and R. That the requested setback variance complies as closely as possible with the required setback reqUirement~ for location or any other location in the ci~y from which It pos#ible to provide comparable service. ·. A T774IS Comments.. · A/though we acknowledge that variances are genera//y designedto be dif~cult to obtain, the amendments proposedin this section make obtaining a va#ance effect/re, impossible. ~reless service is typicaliyprovided through'a networ~ of interconnected and overlapping wire/ess communication facilities.. No singie facilityprovides service to a "substantial portion of the City"; it may, however, be critica/ to provic//'ng service to a particular area of the CIO/. As a result, we request andrecommend that the CiO/change the language of proposed subsection (9)(c)(f] to read as fo/lows: "That it is notpossible for the proposed wireless f~cility to satis~ its function within the applicant's wireless network and also comply with the setback requirements." · Furthermore, the standardofproof- "to the city's satisfaction "- effective/),negates the eftTcacy of this va#ance provision. Without some par~meters on the City's discretion, the City could deny any request for a variance under this subsection, lea~'ng to unnecessary disputes and litigation. · The secondphase in proposedsubsection (~(c)(2), Which provides "o,: any other location in the city from which it is possible to provide comparable service, "is unnecessarily confusing as dra~ed. We assume the intent of this subsection is to k'mit the variance from the setback standards to the minimum necessary to ensure the functioning oft he proposed wireless facility within the applicant's wireless network. We request andrecommend that the City mod[~ the language to make this intent clear (e.g., "any variance granted under this section shal{ be [imited to the minimum necessao, to ensure that the proposed wire]ess facility satisfies [ts function within the applicant's wire]ess network"). (d) The ci~y may grant a variance ~o:the setbac, kand undergrounding requirements of subsections (7)(d)$. 4, San~, or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. IV-48 Y:\WFAA'I'~EUGENE~COMMENT LTR 082304.1:XJC ~Jerome Udz - 5 - ~ August 23, 2004 A 777lV$ Comments: The phrase "obviates the need for comP/lance "is unnecessarily ambiguous, we assume the intent of this phrase is to enable a wireless carder to reduce the setback where existing or proposed screening or CamourTaging mitigate the visual impact oF the proposed wireless facility to a degree equal to or better than if the proposed facility compiled with the standard setback requirement. ~/e request andrecommend that the City modi~ the language to make this intent c/ear. · .' (de) The city may grant a variance to the 75 foot height limitation in the R;I zone to a maximum of 100 feet providing the. applicant demonstrates that a transmission tower taller than 75 feet w~ll direct y eliminate the need for 1 or more additional transmission towers in an R-1 zone. A TTWS Comment: See comment above regarc/lngproposednew section (7)(d)(2). (e~ If the proposed transmission tower or ancillary facility requires site revieTM or a conditional use permit, the request for variance shall be considered as part of the site review or conditional use permit process. If the proposed transmission tower or ancillary facility is an outright permitted use, the request for a variance shall be processed pursuant to Type II application procedures beginning at EC 9.7200 General Overview of Type II Application Procedures except that the decision shall be based on the criteria in this section. A TTW$ Comments: · No changespropo~ed; no comments. ('11) Fees. Notwithstanding any other provision of this code, the city manager' [may] #ha//require, as part of application fees for building or land use 'permits for telecommunication facilities, an amount sufficient to recover all of the city's costs in retaining consultants to verify statements made in conjunction with the permit application, to the extent that verification requires telecommunications expertise. A TTWS Comments: All fees charged should be reasonable and retlect t~o more than the actual cost incurred by the City in reviewing a wire/ess carrier's application. Consequent[y, rather than requiring the City Manager to co]]ect Fees "su~cient to cover al]of the City's costs" at the point the wire/ess applicant submits an application, we request and recommend that the City modify this section Y:\WI:~ATT~uGEN~COMMENT LTR 082304.DOC I¥-4 9 " .Jerome Lidz - 6 - ' ' August 23, 2004 to require the wire/ess applicant to reimburSe the City for its actual andreasonable costs incurred "to veri~y statements made in conjunction with the permit applicat?on. " The City could collect fees at fhe time the wire/ess app]icanipic]cs up itspe~m/t from the Ci~. Thank you in advance {or your consideration of these comments. If you have any questions or comments regarding any of the concerns expressed in this letter~ please contact me or Kevin McGee. I can be reached by email at miawrence@buckgordon.com or by telephone at 206-382-9540. Mr. McGee can be reached by email at kevimmcgee@attWs.com or by telephone at 858-232-399& ·. ' Very truly yours, Molly A. Lawrence MAL:MAL cc: Dan Smith, A~-fWS Kevin McGee, ATTWS IV-50 · Y:\WP"A~UGEN~COMMr:NT LTR 082304.DOC .Jerome LIDZ - Amen .d...m. ents,,to Ceil T~){i ' ~r. dinance (E~ene Code Section 9.57~~ '~ : · From: "Evans, Pat" <Pat. Evans@T-Mobile.com> ".. } ' To: <jerome.s.I dz@harrang.com> .. Date: 7/27/2004 2:35:24.PM Subject: Amendments to Cell Tower Ordinance (Eugene Code Section 9.5750) Jerry: Here are the initial comments that I promised 'to you from T-Mobile on the proposed revisions to the · Eugene Code·. Please keep me posted as to the public hearing dates so that someone from our Office can attend and enter both written and oral comments into the record. Thanks. 1. Is there any scientific or even anecdotal basis for the setback distances proposed? What is causing this concern? While I can understand the desire to keep "adult" bookstores away'from schools, I must take umbrage to having wireless lumped into that same category without some valid, ,scientific or other reason being presented. Further if there is a desire to go forward with a setback distance, could not the same arguments apply to other businesses with whom the City (or lunatic vegetarians) might also have issue, e.g., fast food restaurants who would attract school children away from "healthy" meals in the school cafeteria? 2. If there is some scientific reason.for the proposed setbacks, please share, those with me. Otherwise I must assume that the distances are.not based in fact but rather on something else....perhaps the dreaded "EMF" which, as you are well aware, cannot, by Federal preemption be considered in either the . development or enforcement of local zoning code. 3. Has the City of EUgene done any GIS (Geographic Information System) study to determine the amount of land available for siteing of wireless facilities currently and what the impact would be if the proposed changes were enacted? Our recent experieince With another jurisdiction in Oregon has shown that these types of proposed changes, when subjeCted to scientific analysis using GIS, could result in a defacto prohibition against Wireless facilities within a large portion of the municipality. I Would strongly suggest that such an exercise be complete before these changes go any further. This analysis is at best a three hour', internal exercise that can .be readilY carried out by existing staff Lising existing data bases. And, when this study is complete, please forward us a copy of those results. 4. Has any' thought been given to the discriminatory nature of the statute against the wireless industry? Do similar types of setbacks or other prohibitions exist against other businesses in the City of Eugene? Or, as I suspect, is wireless being singled out for "unique" treatment based on the misguided fears of a "lunatic fringe"? 5.. The issue of being "...unable to provide service to a substantial portion of the City" (Section 9.5750(9(c)(1))...is likewise problematic for a number of reasons: First: there is no definition of what a "substantial portion" of the City consitiutes; Second: payment for our FCC license did not contemplate the ability Of a subservient judsdiciton being able to withdraw a portion of its geography from our ability to provide service; Third: The issue for mature wireless sytems is not to "provide service" but rather to provide additional services or capacity to areas allready covered. This proposed language allowS·the Oity to "second guess" the reasons a wireless provider would use to locate new or additional equipment..:without the City itself either having the technical resources.on staff to make such a review or without, again, subjecting similarly situated applicants under the Zoning code to equivalent scrutiny. 6. We strenuously object to the ability of the City to have open ended access to our corporate funds for the purpose of the City reviewing our application. If this is required there must be a reasonable and fixed limit to the amount of financial liability to which wireless providers can be exposed. You should be aware that short of a "Professional Engineer" (PE) designation, there is absolutely no criterion by which to. evaluate the knowledge 'or experience of the "so called" industry experts that'the City would hire. We have, in the past, objected to an organization thatthe City has engaged, which represents itself as ~ "industry experts" while in fact none of the individuals listed in the company's CV are credentialed as wireless engineers. And finally, IV-51 LIDZ - Amendments to Cell Toy' - 3rdinance (Eugene Code 9 7. I would call your attention to Section 9.5750(9)(c)(2). After reading this section several times myself and having staff read it none of us are able to come up with any idea of what this paragraph is driving at. Perhaps a re-write for clarity is in order. Patrick Evans, Manager, Development Oregon and SVV Washington T-Mobile USA 1500 NE Irving Portland, Oregon 97232 PCS: (503) 914-8977 - NEW NUMBER Fax: (503) 736-3014 "Be the change you want to see in the world." - Gandhi pat. evans(~t-mobile.com cc: "Bailey, Lance" <Lance. Bailey@T-Mobile.com>, "Altschul, Laura" <Laura.Altschul@T-Mobile.com> From: KULLBY Kent R <Kent. R.KULLBY@ci.eugene.or. us> To: ELGIN Lynette K <lynette. e gin@harrang corn> Date: 7/27/2004 8:15:03 AM SubjeCt: Public Notification on Cell Tower Ordinance proposal Lynette , Please notify and send a copy of the Telecommunications Ordinance changes to: · James Barta Voicestream/T-Mobile Wireless .. 1500 NE Irving St. suite 530 Portland OR 97217 Sarah Medary City Parks & Open ·Space ' 1820 Roosevelt Blvd Eugene, OR 97408 Note that I have a pending Site Review Permit application, city file (SR 03-16), for a cell monopole telecommunications facility in Westmoreland Park. ' The proposed location is about 300 feet setback from a residential are and 300 feet. setback from Jefferson Junior High SchoOl. Their application is currently incomplete and on-hold waiting for more information to be submitted. · Kent Kullby, AICP Planning Division, City of Eugene 99' West lOth Avenue Eugene, OR 97401 telephone: (541) 682-5453 facsimile: (541)682-5572 e-mail: kentr, kullby@ci.eugene.or, us <mailto:kent. r ku. by@ci.eugene.or, us> IV-53 RECEIVED July :~6,.~,oo4 . JUL 2 9 ~0(}/~ City A~torney city Eugene 36o East ~ot~ Ave., Suite Soo Eugene V401 . ge: anendments to Cell Tower Ordnance (Eugene Co e Dear CityAttorneys: I am writing in response to a request from your office for comments on the proposed amendments to EC 9.575o. Having spent over two years organizing a fight against a tower in my own neighborhood, I am well aware of the strengths and deficits in the current ordinance. In section (7)(d), I was pleased to see the proposal for setbacks of 8oo feet from residential zoning, and zooo feet from public schools. A strong setback requirement preserves residential property values, and helps protect the City from lawsuits brought by aggrieved homeowners. It also addresses the iSsue of attractive nuisance. However, I noted with concern that the proposed code makes an exception to thiS requirement in C-z and GO zones. It is not dear to me whether the language in (7)(d)2, which states" 800 feet from ALL residentially zoned property" (emphasiS mine), would allow new towers located on C-1 or GO zoned property to be set back a minimum distance equal to the height of the tower from adjacent property lines and streets, or whether the 800 and loo~foot setbacks would still apply, ifa public school or residential zoning were within those distances. Clarification iS needed. A review of the City zoning map makes it clear that C-~ and GO zoned properties are scattered throughout the City, and occur most frequently in mixed-use areas. Therefore a lesser setback in Cq and GO will inevitably impact residences. An ordinance which facilitates building towers in mixed-use areas will devalue properties, create visual blight, and in general, make those areas less desirable. This is at odds with the City's nodal development program, which I believe has the goal of making Eugene's mixed use areas' more livable, and more desirable. I strongly recommend that the setbaCk requirements should apply without exception, in all zones. If there iS a call from the industry for areas of reduced setback, these should be allowed only in the heavier industrial ZoneS. Another concern I had iS with (9)(d), variance. The amendment as written seems to assume that visual blight iS the primary reason for setback. Property values can be impacted negatively bY the proximity of a tower, regardless of how visible or how ugly it is. This is because potential buyers may be wary of potential health hazards associated with radio frequency emissions. The Federal ' Telecommunications Act of 1996 forbids local jurisdictions from regulating tower placement' based on health concerns, but it does not forbid local governments IV-54 from setting up regulations that preserve property values, or protect a~ainst attractive nuisance. A strong setback requirement is the backbone of the. ordinance. This variance proposal as written weakens the whole ordinance, gives the upper hand to industry, and leaves homeowners without recourse. I do not understand the rationale for spending City funds to amend the ordinance if the changes will result in a loophole of this nature. On the other hand, the amendment to section (11) has my heartiest approval. Independent technical reviewis much needed, and will relieve Planning staff of a task for which they are not qualified. I appreciate the'opPortunity to comment on these proposed changes to the ordinance, and I would love to see the language that is submitted to the Planning Commission. · Kind Regards, Eugene OR 97404 IV-55 .CEIVED July 22, 2004 · City Attorney City of Eugene360 East 10th Ave:, .Suite 300 . Eugene, OR 97401 · Re: Amendments to Cell Tower Ordinance:' (Eugene Code Section 9.5750) This is in addition to my comments dated July 20. 2004. The last item addressed in your revision is "Fees." The change from. "may" to "shall" does strengthen this provision. Yet the "shall" seems to only ensure that a fee is required to cover the costs of an independent peer review of technical information. Yet given the history of this provision (to my knowledge it has never been utilized), there seems no langUage providing guidance as to when independent technical review is needed. It · would seem the letter of the law would only guarantee the funds be available. Of course, there would be times when a review would not be required- e.g. in an industrial area with no homes or schools in the vicinity. However, say that a service provider seeks a variance to site closer than the 1000 ii or 800 ii setback, it would seem then that independent technical review of that application, should be mandatory. Again, thank you for this opportunity. l~mber: Citizens for ~ Placement of Cell Phone Transmission TowerS 87140 Territorial Rd. ~ Veneta, OR 97487 Also,' a Eugene home owner · · IV-56 .. "."~.Ci~.of Eugene ' .,...:....::.'/:~Plmg Dep~ent . 'APR 1.'0 2004. REC.EIVED ~" ."M~a Jonson ~d I w~ted to get ~s packet of i~o~afion reg~g ~e Eugene Te]eco~Cafion Or--ce to You. It seres to be a work in pro~ess M~ addifion~ items c~ling for yet ~other cover le~er. ' O~ i~ti~ approach ~ October 2002 w~ to provide ~ ~ysis of~e emire Teteco~ Ore'ce. E~er ~s ye~, bo~.M~a ~d I met M~ sever~ Co~cil members ~d ~e Mayor ~d prodded P~kets to those we did not meet M~ personally, co--ems.by some of~ose we spoke M~ led m to conclude ~at a comprehensive approach to re. siting ~e. Eugene ore.ce might not be succeSs~ ' ':.'~ .where~ ge~g to ~e core of o~ concerns ~d suggesting ~e most dkects approach to resolv~g some of ~ o~'issues might be more productiVe. We felt a setback pro.sion w~ ~e most direct approach. From read~g the s~ff obse~ations subdued t° the Co~cil along M~ ~e vis~ ~, my impression is · at ~e Planing Dept. feels ~at ~e exist~g ord~ce is ~cfioffing just fine.' I have worked M~ sever~ neighborhoo~ in Eugene on ~e siting of cell phone ~mission.towers. The suggestion ~at ~e n~bers of applications may not w~t rehsiting t~s ord~ce does ~ ~j~tice to ~ose nei~borhoods ~pacted not O~y by ~e ac~l facili~ berg located ~ ~ek midst but ~so ~e public '"process M~ W~ch ~ey have to contend. The time, ener~, ~d reso~ces ¢oth emotion~ ~d franciS)" req~ed on ~eir p~ to fi~t ~ ~appropriate p]acemem of a tower ~e ~ a~ly ~gh price for ~e public to pay when ~ere may be a be~er approach. Hahng recemly been.involved M~ T-Mobile proposes ~ Hillsboro ~d Newberg, I ~ve Mmessed how · e ~e ~d inte~i~ of coverage deemed necess~ by prodders is generating ~e dem~d for more faci~ties. Wo~dn't it m~e se~e to have ~ ord~cc that ~ticipates what may come ~ opposed to one · at Only reflec~ p~t experience? .~so, one brief cogent on We~esday's ~scmsion, ~ere is a distinction be~een public need ~d Public w~t ~at should to be ac~owl~ged. I t~ ~at distinction w~ missing d~g ~e April 14~ dipole. I have included ~e recem decision ~ ~e US Dis~ict Corn, T-Mobile vs ~e Ci~ of Hillsboro, OR. T~s decision Mll ~ve broad.~plicadons in the ongo~g discussion of~e fi~ts of loc~ j~sdictions in dete~g ~e placement of these ~smission towers M~n ~e s~c~e of ~e 1996 Feder~ " Co~cafions Act. As ~ ~ide, Judge Mosm~ is considered a conse~ative judge. Cit~ens for ~e Responsible Placement of Cell Phone Tr~smission Towers is loo~ng fo~d worhng .' M~ the Ci~ in ~s upcoming endeavor. .~6na Lins~omberg cc: Sus~ M~r IV-57 : 301 F.Supp.2d 12S1 Page 1 (Cite as: 301 F.Supp.ld 12~1) United States District Court, 414k36 Most Cited Cases D. Oregon. 'Under Oregon law, city can prohibit proposed use VOICE STREAM PCS I, LLC, d/b/a T-Mobile, of property on sole ground that use is offensive to Plaintiff, aesthetic sensibilities. Golden Road Baptist Church, Involuntary Plaintiff, v. [3] Zoning and Planning C~)384.1 CITY OF HILLSBORO, Defendant. 4141084.1 Most Cited Cases Civil No. 03-365-MO. Under Telecommunications Act (TCA), local zoning board is entitled to make aesthetic judgment Feb. 2, 2004. in ruling on conditional nad application for wireless telecommunications tower, as long as judgment is grounded in specifics of case, and does not evince Background: Wireless telecommunications .merely aesthetic opposition to cell-phone towers in service provider brought action under general.. · Communications Act of 1934, § Telecommunications Act (TCA) seeking to overturn 332(c)(7)(B), 47 U.S;C.A. § 332(c)(7)(B). city's decision to deny its conditional use application to erect wireless telecommunications [4] Zoning and Planning ~384.1 tower in..,residentially zOned area. 4141084.1 Most Cited Cases Holdings: The District Court, Mosman, J., held Substantial evidence supported city's decision to that: deny, on aesthetic groun&, conditional use (1) substantial evidence supported city's decision application for wireless telecommunications tower to deny application on aesthetic grounds; in residentially zoned area, despite applicant's (2) city's decision did not effectively prolu'bit contention that decision was based solely on wireless services in city; and general, unsubstantiated aesthetics concerns, in light (3) city did not unreasonably discriminate agai,~t of evidence, that city considered specific scene in provider, which proposed tower would appear, city gave consideration to proposed tower's distance from Judgment for city. surrounding homes, and proposed tower would not " have filled complete void in coverage but instead would only have improved indoor coverage. West Headnotes Communioations Act of 1934, § 332(c)(7)(B), 47. U.S.C.A. § 332(c)(7)(B). [i] Zoning and Planning C=~708 414k708 Most Cited Cases [5] Zoning and,Planning C:~685 414k585 Most Cited Cases Court reviewing local zoning decision affecting 'wireless telecommunications towers pursuant to In seeking to overturn city's decision to deny Telecommunications Act (TCA) must examine conditional use application for wireless entire record, including evidence contradictory to telecommunications tower in residentially zoned local govermnenfs decision, in determining whether area, burden is on applicant. Communications Act substantial evidence supports - decision, of 1934, § 332(c)(7)(B), 47 U.S.C.A. § 332(c)(7)(B) Communications Act of 1934, § 332(c)(7)(B), 47 U.$.C.A. § 332(c)(7)(B). [6] Zoning and 1)lanning C~642 [2] Zoning and Planning ~=:,36 414k642 Most Cited Cases Copt. © West 2004 No Claim to Orig. U.S. Govt. Works IV-58 http://printwesflaw.¢om/d¢livery.html?dcs~atp&dataid=A0055800000066180001978611.. 4/14/2004 page 3 of 12 301 F.Supp.2d 1251 Page 2 (Cite as: 301 F.Supp.2d 1251) District court reviews record de'nero to determine bears burden of establishing that city engaged in whether it supports applicant, s claim that city's unreasonable discrimination in violation of rejection of application for wireless TeleCommunications .4~t (TCA). Commttllications commulficalions tower effectively prohibits such Act of 1934, § 332(c)(7)(B)(i)(I), 47 U.S.C.A. § towers in city. Communications Act of 1934, § 332(c)(7)(B)(i)(I). · 332(e)(7)(B)(i),47U.S.C.A.§332(c)(7)(B)(i). '1253 Christopher P. Koback, Davis Wright Tremaine, LLP, Portland, OIL for Plaintiff. [7] Zoning and Planning ~=~384.1 414k384.1 Most Cited Cases Pamela J. Beery, Paul C. Eisner, Beery &Elsner, LLP, Portland, OR, for Defendant. Single zoning 'decision can give rise to effective prohibition of wireless services in violation of Telecommunications Act ('rCA). Communications OPINION AND ORDER Act of 1934, § 332(c)(7)(B)(i), 47 U.S.C.A. § 332(c)(7)(B)(i). MOSMAN, District Judge. '[8] Zoning and Planning ~=~384.1 ' Plaintiff Voice Stream PCS I, LLC ("plaintiff') 414k384.1 Most Cited Cases brings this lawsuit under the Telecommunications Act of 1996 ("TCA"), seeking to overturn the City City's decision to deny conditional use application of Hillsboro's decision to deny plaintiffs for wireless telecommunications tower in conditional-use applicati°n to erect a residentially zbned area did not effectively, prohibit wireless-telecommunications (or, as commonly Wireless services in city, in violation of called, a "cell-phone")tower in a residentially Telecommunications Act ('rCA), where proposed zoned area. The issues in this case pit the TCA's tower would have simply improved existing indoor intention to deregulate the wireless telephone coverage, not filled complete void in coverage, industry-against the' traditional control over local applicant could have' achieved its objectives by -land use maintained by municipalities. For the installing two towers at other locations, and cit,fs reasons discussed below, municipal control prevails ' decision was based on specific circumstances in thiscase. -presented, not on unsubstantiated general observations. Communications Act of 1934, § I. Background 332(c)(7)(B)(i), 47 U.S.C.A. § 332(c)(7)(B)(i). Personal wireless services are dependent upon low [9] Zoningand Planning ~=~384.1 power, high frequency radio . signals that are 414k384.1 Most CitedCases tnmsmitted from antennae placed on preexisting structures, such as water towers, or on newly City's decision to deny conditional use application coustmcted towers. See generally Southwestern for wireless telecommunications tower in Bell Mobile b~y$., v. Todd, 244 F.3d 51, 56-57 (lst .residentially zoned area did not unreasonably Cir.2001); Sprint'Spectrum, L.P.v. IVilloth, 176 discriminate against applicant, in violation Of F.3d 630, 634-35 (2d Cir.!999). As a subscn'ber Telecommunications Act (TCA), even though city travels within a cellular provider's service area, the had previously granted conditional use permits for cellular call in progress is transferred from one cell two other wireless communication facilities ia site to another without noticeable interruption. T.o residential areas, where there was no evidence of increase quality of service and therefore attract any relevant similarity other than common zoning subscribers, providers usually have an incentive to designation.~ CommuRications Act of 1934, § increase the number of cells and correspondingly 332(c)(7)(B)(i)(I), 47 U.S.C.A. § 332(c)(7)(B)(i)(I). decrease the geographic coverage of each cell. In furtherance of this plan to improve service, [10] Zoning and Planning ~:=~685 coverage within an area is maintained by arranging 414k685 Most Cited Cases antennae in a honeycomb-shaped grid. When the grid is placed over a city map, desired tower Unsuccessful applicant for conditional use locations of course often fall in residential areas. application for wireless telecommunications tower And because wireless technology is. relatively Copr. © West 2004 No Claim to Orig. U.S. Govt Works IV-59 httnr//nrint we.~tl~w e,r~m/dellvRrv htrnlgrleet=--ntn,eo-rlntnld=Ailil~Rfif~fl(l(l~l~l Rlqilf~ 1 Q'7~1 I a/1 Page 4 of 12 301 F.Supp,2d 1251 Page 3 (Cite as: 301 F.Supp.2d low-powered and requires line-of-sight to a tower, COnvenience, because the tower would improve the necessary antennae generally must be placed on indoor cellular telephone COverage (although the towers which loom over the landscape, commonly council found the. plaintiff did not prove its giving rise to opposition especially in residential assertion the tower would improve communications areas, for public-safety personnel). The COuncil further found the property was suited for the proposed use, Plaintiff submitted an application for a since the church's lot is large enough to COnditional-use permit to construct and maintain a a~commodate the tower and no other infrastructure 120-foot tower on residentially zoned property wOUld be necessary .to service the site. As for owned by the Golden Road Baptist Church in the requirement (e)the council found this was met. City of Hillsboro. The church site is surrounded on . all sides by residentially zoned property. Many of The council denied the permit because it 'the surrounding homes are 'between 100 and 200 determi.ned the proposal would not be in the public feet from the proposed site. As revealed by the interest' and would have a substantial adverse effect record, the proposed site'is in an area commonly off surrounding property owners' rights. Both of described as scenic, as it is surrounded by fir trees these findings were based on generally the same and is near wetlands and a greenway. Neighbors, evidence: There was no showing denying, the therefore, banded together to oppose plaintiffs application would harm the public interest since the permit application, tower would only improve what plaintiff calls "urban" coverage, meaning coverage indoors. In The Cit?s Zoning Hearings Board held public addition, both plaintiff and oPPonents testified hearings and accepted neighbors' opposition letters, plaintiff alternatively could have erected two towers The board also accepted a petition of over 50 at other sites, although plaintiff suggested this residents expressing opposition. "In addition,' the alternative would not have served its needs. The board had before it maps, simulated photographs, council further found the proposed tower would and aohart depicting the location of the city's negatively affect the aesthetic character of the wireless- telecommunications facilities. The board neighborhood, relying primarily on residents' applied Hilisboro Zoning Ordinance ("HZO") COncerns about the tower's effect on the 'No.1945, Section 83(9). This o/'dinance provides neighborhood's-natural surroundings, which include as follows: . an undeveloped greenway. The COuncil further The Commission or Hearings Board shall grant relied on simulated pictures showing what the tower approval only if the proposal, '1254 as wouldlook like. In addition, the council adopted the conditioned, is determined to conform to the board's findings distinguishing two prior permits following criteria: that had been granted to wireless providers for (a) The granting of the application would meet residential~area facilities: One of the facilities, the some public need or convenience, board found, was placed on an existing' light pole at (b) The granting of the application is in the public an athletic riel& The board also observed that the interest, other facility is located near a busy street and across (c) The property in question is reasonably suited from a commercial district. · for the use required. (d) The use requested would not have a While the council found there would be a negative substantial adverse effect on the rights of the aesthetic impact, it found the evidence inconclusive owners of surrounding properties., as to whether the tower would cause property values (e) The use requested would conform to the maps to decline. Plaintiff had submitted an expert report and the goals and policies of the Hillsboro which studied the effects of towers in other Comprehensive Plan. neighborhoods and which concluded there would be The board ultimately issued a written decision no adverse effect, In response, residents submitted denying plaintiffs application. Plaintiff appealed three letters from local realtors who concluded the the board's denial to the city council. The city tower would negatively affect property values. COuncil issued a written decision, adopting in part Based on this conflicting evidence, the COuncil did the board's written decision and ~ing the not base its decision on property devaluation and board's denial. The council found granting the determined property devaluation was not necessary application would meet a public need or for it to deny the application. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-60 http://print.west~aw.~~m/de~ivery.htm~? dest=atp&dataid=A~~5 58~~~~~~66 ~ 8~~~ ~ 9786 ~ ~... 4/14/2004 Page 5 of 12 301 F.Supp.2d 1251 Page 4 (Cite as: 301 F.Supp.2d 1251) II. l)iseussion TCA restricts zoning boards' authority to base their denials on perceived adverse environmental effects, The TCA permits parties to bring cases like this in since that issue is heavily regulated by the federal federal court: government. Id. § 332(c)(7)(B)(iv). Congress also Any person adversely affected by any final action delineated three situations at issue in this case in or fallur~ to act [regarding siting a cell-phone which federal courts can reverse a local zoning tower] by a State or '1255 local 'government or board's, denial of a permit for a cell-phone tower.. any instrumentality thereof.., may, within 30 days (1) when the board's denial is not "supported by after such action or failure to act, commence an substantial evidence contained in a written record," action in any court of competent jurisdiction~ (2) when the board's decision "prohibit[s] or ha[s] 47 U.S.C. § 332(c)(7)(B)(v). Congress therefore the effect of prohibiting the provision of personal expressly intended for local zoning decisions which wireless services," and (3) when the board's affect cell-phone towers to be reviewed by federal decision "unreasonably discriminate[s] among courts. A driving force behind this decision was providers of functionally equivalent services;" Id. § Congress's conclusion that" 'siting and zoning 332(c)(7)(B). Plaintiff contends that the city's decisions by nOn-federal units of government[ ] denial violates each of these three provisions. [FN2] have created an inconsistent and, at times, conflicting .patchwork of requirements which will inhibi¢ "the development and growth of wireless FN1. Notably, the House version of the services. Omnipoint Corp. v. Zoning Hearing Bd. of bill would have given the FCC (rather than Pine Grove Township, 181 F.3d 403, 407. (3d local zoning entities) authority to regulate Cir. 1999) (quoting H.R. Rep. 104-204, at 94 (1995) tower siting. See generally Sprint , reprinted in 1996 U.S.C.C.A.N. 10, 61). Thus, Spectrum £.P. v. Parish of Plaquemines, generally speaking, the TCA reflects Congress's No. 01- 0520, 2003 'WI, 193456, at *5 intent to expand wireless services and increase (E.D.La. Jan. 28, 2003)(discussing TCA's competition among providers. Todd, 244 F.3d at 57; legislative history). But, as Section see also H.R.Rep. No. 104-458, at 113 (1996), 332(c)(7)(A) shows, Congress made a reprinted in 1996 U.S.C.C.A.N. t24, 124 (stating 'conscious. decision to reject any. scheme TCA intended "to provide for a pro-competitive, revoking local control over zoning deregulatory national policy framework designed to decisions, even at the cost of inhibiting the aocelemte rapidly private sector deployment of growth ofwirelessservices. advanced telecommunications ... and services to all Americans by opening all telecommunications markets to competition"). Flxl2. Although no formal motions have been filed with the court, the parties agreed But despite Congress's intention to 'advance at oral argument the c~e is ready to be competition among wireless providers, Congress decide, ch also acknowledged "there are legitimate state and local concerns involved in regulating the siting of such facilities ... such as aesthetic values and the A. Substantial Evidence costs associated with the use and maintenance of public rights-of-way." H.1L Rep. 104-204, at 94-95 Plaintiff argues that the city's denial of plaintiffs (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61. conditional-use application was not supported by Consequently, the TCA expressly preserves local "substantial evidence." '1256 Plaintiff essentially zoning authority regarding the placement of · argues that the 'city's decision was improperly based equipment such as cell-phone towers: on nothing more than general, speculative aesthetics Except as provided in this paragraph, nothing in concerns. this chapter shall limit or affect the authority of a State or .local government or instrumentality [1] While the Ninth CirCuit has not yet decided a thereof over decisions regarding the placement, case under the TCA provisions at issue in this case, Construction, and modification of personal other federal courts agree "substantial evidence," as wireless service facilities, used in the TCA, was meant generally to track the 47 U.S.C. § 332(c)(7)(A). [FN1] However, the standard of the same name set forth in the Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-61 htto://orint.westlaW.com/deliverv.html?de.qt=atnI~.dataid=AOO,iSRO00(}OO661 gOOO107g~1 1 1/1 ~'/Ol~l~a Yage o et : 301 F.Supp.2d 1251 Page 5 · (Cite as: 301 F.Snpp.2d 1251)' ) Administrative ProcedUres Act. See, e.g., Preferred .showing tho decision was not supported by Sites, LLC v. Troup County, 296 F.3d 1210, 1218 substantial evidence. See iff. at 830. (llth Cir.2002); Todd, 244 F.3d at 58; Omnipoint Corp., 181 F.3d at 40%08; Cellular Tel. Co. v. At the outset, the terms of the applicable zoning Town of Oyster Bay, 166 F.3d 490, 494 (2d ordinance must be evaluated. The ordinance at Cir. 1999); MetroPC$, Inc. v. City & County of San issue here directs the city to reject a proposed Francisco, 259 F.Supp.2d 1004, 1009 conditional use when it concludes permitting the use (lq.D.Cal.2003). Although. the TCA does not itself would not be in the "public interest" or would have define "substantial evidence," legislative history "a substantial adverse effect on the rights of the supports the decision to follow the Administrative owners of surrounding properties.'~ HZO § 83(9). Procedures'Act standard. See H.R. Conf. Rep. In this case, the city made both Of those findings, 104-458, 'at 208, reprinted in 1996 U.S.C.C.A.N. which plaintiff challengos. 124, at 223 (stating TCA standard is intended as "the traditional standard used for judicial review of The city council interpreted "public interest," as agency actions"). Substantial evidence, therefore, used in the ordinance, to contemplate a r means" 'such relevant evidence as a reasonable consideration of the public health,, safety, and mind might accept as adequate to support a welfare of the community. P~.38. The coRncil conclusion.' "Pierce v. Underwood, 487 U.S. 552, further concluded the ordinance's "substantial' 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) 'adverse effect" language does not require any (quoting Consolidated Edison Co. v. NLRB, 305' property-value devaluation but instead contemplates U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). a consideration of whether an '1257 owneffs Substantial evidence is not'a large or considerable property use and enjoyment will be affected by the amount of evidence," and the fact two different proposed use;1L40. conclusions could have been reached does not mean there is not substantial evidence. Id.; see also Todd, [2] As with most such zoning ordinances, the 244 F.3d at 58-59..As measured by degree, open-ended nature of the ordinance's substantial evidence is usually considered to be conditional-use criteria evinces an intent to grant ~ "more than a mere scintilla" and less than a wide discretion to the zoning board when making ~' preponderance. Universal Camera Corp. v. NLRB, conditional-use decisions. Cf. $chad v. Borough of 340 U.S. 474, 477, 71 S.CC 456, 95 L.Ed. 456 Mt. Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 68 (1951). In short, the governing standard is "highly L.Ed.2d 671 (1981) ("The power of local deferential"to the local government's decision but governments to zone and control land use is does not amount to a mere mbber stamp. Second undoubtedly broad and its proper exercise is an Generation ProPs., L.P.v. Town of Pelham, 313 essential aspect of achieving a satisfactory quality F.3d 620, 627 (lst Cir.2002). The court must of life...."); Berman v. Parker, 348 U.S. 26, 33, 75 'examine the entire record, including evidence S.Ct. 98, 99 L.Ed. 27 (1954) ("The concept of the contradictory to the local government's decision, in public weffare is broad and inclusive. The values it determining whether substantial evidence supports represents are' spiritual as well as physical, aesthetic the decision. See Todd, 244 F.3d at 58; MetroPC$, as well as monetary. It is within the power of the 259 F.Supp.2d at 1010. legislature to determine that the community should be beautiful as well as healthy .... "(citation In searching for' substantial evidence, the omitted)). ,amd under well-established Oregon law, government's decision is analyzed under the a city can prohibit a proposed use of property "on applicable zoning ordinance; " 'It]he TCA's the sole ground, that the uso is offensive to aesthetic substantial evidence test is a procedural safeguard sensibilities." Oregon City v. Hartke, 240 Or. 35, which is centrally directed at whether the local 46, 49, 400 P.2d 255 (1965). Accordingly, in light zoning anthority's decision is consistent with the of the applicable ordiaance's broad language, the applicable zoning requirements.'" VoiceStream city had the power to deny plaintiffs permit, on Minneapolis, Inc. v. St. Croix County, 342 F.3d grounds of "aesthetic considerations." Oregon City, 818, 830 (7th Cir.2003) (quoting ATC Realty, I.,LC 240 Or. at 49, 400 P.2d 255. The TCA, however, .v. Town of Kingston, 303 F.3dgl, 94 (lst Cir.2002) requires this court to evaluate the evidence to ). The party seeking to. overtura the local ensure the city's decision was not "irrational or government's decision carries the burden of substanceless." See Todd, 244 F.3d at 57. Copt. © West 2004 No Claim to Orig. U.S. Govt. Works IV-62 http://print.westlaw.com/delivery.html?dest=atp&dataid=AO05 5 80000006618000197 8611... 4/14/2004 Page 7 of 12 301 F.gupp.2d 125i Page 6 · (Cite as: 301 F.$upp.2d 1251) As plaintiff recognizes, even under a substantial like," and health concerns, a basis generally evidence review, zoning ' decisions based on improper Under the TCA, "dominated. the speakers' aesthetic concerns can be valid. See St. Croix statements"). County, 342 F.3d at 831; Troup County, 296 F.3d at 1219; Todd, 244 F.3d at 61; Pine Grove [3] But even under the TCA, the board is entitled Township, 181 F.3d at 408; AT & T Wireless.PCS, to make an aesthetic' judgment as long as the Inc. v. City Council of the City of lqrginia Beach, judgment is "grounded in the specifics of the case," 155 F.3d 423, 430-31 & n. 6 (4th Cir. 1998); see and'does not evince merely an aesthetic opposition also H.R. Conf. Rep. 104-458, at 208, reprinted in to cell-phone towers in general. Todd, 244 F.3d at 1996 U.S.C.C.A.N. 124, at 222 (contemplating that 61; see also Petersburg Cellular P'ship v. Bd. of localities properly can base decision on aesthetic Supervisors of Nottoway County, 205 F.3d 688, 695 impac0. Plaintiff does not cite, and the court could (4th Cir.2000) ("[If a zoning board] denies a permit not find, any authority holding that the TCA renders based on the reasonably-founded concerns of the aesthetic concerns an invalid basis upon which to commUnity then undoubtedly there is 'substantial base a permit denial. As summarized by the evidence'" (emphasis in original)). Accordingly, Seventh Circuit, "[n]othing ' in the when the evidence specifically focuses on the Telecommunications Act forbids local authorities adverse visual impact of the tower at the particular from applying general and nondiscgmlnatory ' location at issue more than a mere scintilla of standards derived from their zen/rig codes, and ... evidence generally will ex/st. aesthetic harmony is a' prominent goal underlying almost every such code." Aegerter v. City of Plaint/if nevertheless insists the evidence before Delafield, 174 'F.3d 886, 891 (Tth Cir. 1999). the city in this case amoUnted to.no more than Moreover, consistent with traditional zoning unsupported and vague objections. See Plaint/fPs standards, local government ii "entitled to make an Pre-Hearing Memorandum at 9. But a proper aesthet/c judgment" about the proposal "without review of the record shows there was more than a justifying 'that judgment by reference to an scintilla of evidence l'grounded in the specifics of economic or other quantifiable impact" such as the case." Todd, 244F.3dat 61. property value. Todd, 244 F.3d at 61. For example, neighboring residents submitted Plaint/fi, however, correctly observes that' cases letters objecting to the tower"s proposed location .have found general, unsubstantiated aesthetics because the tower would infringe 'upon the concerns to have marginal eviclentiary value. See, neighborhood's prized natural setting, comprised of e.g., PrimeCo Personal Communications, /_an v. fir and evergreen trees as well as a greenway. See, City of Mequon, 352 F.3d 1147, 1150-$1 (Tth e.g., R. 191, R. 195, R. 197, R.205, R.207, R.220, Cir.2003) ("The only 'evidence' bearing on aesthetic R.222, R.407, lL420. At the site, there is no considerations was the testimony of three or four significant commercial development; nor are there residents that they don't like poles in general; they existing commercial towers or above-ground power didn't say they would object to a flagpole in the lines. R.26, R.205, R.407, R.420. In addition, on church's [the proposed, site's] backyard..~. IT]here is each' side of the tower is a single-family residential no'evidence that Ve 'nzon's proposed flagpole would zone; the record shows 'the tower would be if erected in the churchyard be considered unsightly surrounded by existing residences. See, e.g., by the neighbors...."); D'oup County, 296 F.3d at tL247-58, P~769, R.816. Residents stated' they 1219 (finding insufficient petitions which gave "no relied on the natural~ residential character of'the articulated reasons for the opposition" and a single neighborhood in purchasing their homes, which affidavit reciting "generalized concerns" about the they would not have purchased had pla/ntifl~s towe~s negative aesthetic impact when there was no proposed tower been standing. R. 191, R. 199, other evidence in the record); Oyster Bay, 166 F.3d tL205. The city properly relied on the evidence at 492, 495-96 (finding insufficient evidence of showing the tower would be incompatible with the 'visual blight because '1258 "[v]ery few residents character of this particular neighborhood. .See, e.g., expressed aesthetic' concerns at the hearings," Todd, .244 F.3d at 61 ("The five limitations upon comments suggested that the "residents who local authority in the TCA do not state or imply that expressed aesthetic concerns did not understand the TCA prevents municipalities from exercising what the .pwposed cell sites would actually look their traditional prerogatives to restrict and control Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-63 Page 8 of 12 301 F.gupp.2d 1251 Page 7 (Cite as: 301 F.$upp.2d !251) d~olo~mt b~M upon a~o~o ~3. ~ oouR r~oo~s mo~ oo~id~rafiom...."); d~gener, 174 F.3d at. 890-91 appear mon~onM ~ o~ hom~ (uphol~g ~mg bo~'s &~i of o~Rwhono w~oh ~ ~in 100 f~t of a ooR-pho~ ~wer ~cause ~e tow~ would be "mi~fly" ~d ~wer. ~137. However, ~e si~ ~e not "~oonsis~nt" ~ ~e neighborh~ ~ w~ch ~ W~on Co~W. Mo~ver, ~id~ bou~t ~eff homes ~ re~ce on ~e ~ca~d above, ~e co~ ~& it neigh~rhood's ex~g r~i&n~ c~c~r). ~ si~cmt ~t p~s ~m, ~ough o~on~ ~de gene~ ~se~o~ exp~-"[a]~r fil~g ~e n~b~ of about ~e na~ of cell-phone towers, ~ey ~o sites for ~mh," ~269"-chose fo~ 'co~ide~ ~e specific scene N wNch ~o proposed homes wNch ~ at le~t 3~0 f~t ~om Wwer would appel. ~H~hone Wwem ~ ~e sit~ most ~pwpdate for p~oses of ~aw~g a Moreover, ~e ci~ also gave co~idmfion to ~e comp~son to pl~fiffs Proposed site. propos~ Wwegs dis~ce ~m s~o~g homes. ~e ci~ co~cil cit~ ~ appr~s tes~ony ~t no o~er ceR-phone .faciliW ~ &e ciW si~ ~ close ~oupled wi~ &e ci~s a~efic j~t ~ &e to ~id~ces ~ would pl~s propos~, tower. ~ct &e propos~ tower would not ~1 a comple~ R.39. ~ &e bond's wor~, "~e ceR ~wer ~ ~ void ~ coverage but ~ad wo~d o~y ~prove ~e would be ~ ~e he~ of ~ R-7 s~gle f~y ~door or, ~ pl~s te~, "~" coverage. msid~al nei~borhood ~d wo~d be ~e ~16; s~ Pl~s R~ly Memor~d~ at 3. ~o~o~ eq~t of plao~g a ce~ tower ~ ~e ~ining whe~er ~o ~w~ wo~d c~ter of a ~b~iom" R.27. ~ a~tio~ ~e "pubic ~te~s~" ~e ci~ w~ '~&in i~ au~ofi~ to bo~d ~ca~y dis~shed ~e ~o o~er wei~ ~e.benefit of merely ~pro~g ~e e~g pre~6~ly approved ce~-phone fac~i~es w~ch sit ~vemge ag~t ~e nega~ve a~efic ~pact ~ s~gle-f~ily residen~ zone. R.27. ~e bo~ tower wo~d ca~e. See, e.g., Ci~ of Mequon, 352 obsewed -~t one of ~e e~s~g ~c~ties w~ F.3d at 1149 ("A ~o~ble d~ision whe~er to plac~ on ~ e~s~g ~ght pole at ~ a~e~c field ~prove ~e com~c~ of ~ ~t~ for .~d *1259 ~t &e o~er si~ ~ ably sec~on of ~e cellphone. ~mm~oa~o~ ~e8 b~c~ ci~ ac~ss .~m a co~erci~ d~ct. R:27. At ~e comidem~om. ~e ~t ~ ~e con~bu~on ~t propos~ site, ~e r~ord ~dicates ~t m~y of ~e ~t~ ~ m~e ~ ~e a~i~ of ce~phone neighing hous~ ~ be~e~n 100 ~d 200 feet s~c~. ~e second ~ ~e a~e~c or o~er h~ '~om ~e proposed tower. ~ one ~mess obsesS, ~t ~e ~t~ ~1 ca~e."). Such a poHcy-b~ed "It]he p~posed ce~ tower site reg~s of where d~ion ~ p~ely &e ~e of decision Con, ss plac~ on ~e prope~ wo~d be within 100 feet of left to 1~ zo~g ~&. a s~gle-family site." ~769. [4] Keep~g ~ mind ~e s~d ~ mealy "mo~ ~ fac~ ~ ~ aRempt ~ comp~ ~e proposed site ~ a s~" ~d less ~ a pr~nder~ce, to o~ sites where homes ~e ne~ ~-phone ci~ b~ i~ de~ on. ~ci~t e~d~ce. fac~iti~, pl~s o~ exp~ ~mess picked fo~ Ce~y, m pl~ ~n~&, it ~ ~ss~lo to "~bj~t" homes w~ch ~e no l~s ~ 350 feet ~nc~ &e p~os~ tow~ wo~d not be a ~om ~e newest ce~-phone fac~. ~265, b~ght, ju~ by ~e s~ photo~p~ ~269-70, K.279, ~289. ~ch of &e expea's fo~ ~o~. ~s co~'s role, however, ~bj~t homes is ~ W~gton Co~ (w~ch ~te~ect i~ o~ judgment, but ra~er to apply ~cludes ~e Ci~ of Hfl~boro) ~d one of ~e defe~n~ s~d of ~bs~ e~ce to hom~ ~ ~ ~e ci~. No~bly, W~on Co~ ci~'s jud~enC S~ To~, 2~ F.3d at ~8 ("~e ~cor& ~cate ~ of ~e expe~'s chosen homes ~ssib~ of ~g ~o ~comistent conclusiom ~a~y ~e over 450 feet ~om &e ne~st cell- ~om ~e e~nce does not preyer phone faci~, ~ one of ~ese ~ee homes berg a~inis~ve agenc~s ~g ~om berg 900 feet away. R. 138-39. ~m &e ci~ ~ ~fore ~ by subs~ e~nce."); Aege~er, 174 it pl~ffs o~ e~d~ce ~ca~g ~e propos~ F.3d at 888 ("~e &e ~ncl~iom site is simcity ~ffer~t ~om ~e ~a's most ~ached may not be ~e offiy ~ss~le ones, ~ey ~d c0mp~ble sit~. ~3] ~ppo~ ~ &e ~R~ ~o~ ~d ~fom mint be ~c~."). ~le' ~e ~ ~ ob~gated to ~ew Copt. ~ West 2004 No CI~ to ~g. U.S. Go~ Wor~ IV-64 http://print.westlaw.com/delivery.html?dest=atp&dataid=AO055800000066180001978611... 4/14/2004 Page 9 of 12 301 F.Supp.2d 1251 Page 8 (Cite as: 301 F.Supp.2d 1251) the evidence, given the TCA's express reservation Tel. of Greater Tulsa, LLC v. City of . of local control, the court also must be sensitive to Broken Arrow, 340 F.3d 1122, 113%38 the. difficulties involved in applying inherently (10th Cir.2003) (" Me doubt that Congress policy-based' standards such as "in the public intended local zoning boards to pay for interest" to tower-siting decisions. See, e.g., '1260 experts to prove that there are alternative Sprint Spectrum, L.P.v. Parish of Plaquemines, sites for a Proposed tower.' ") (quoting No. 01-0520, 2003 WL 193456, at, '19- 20 Petersburg Cellular P'ship, 205 F.3d at' (E.D.La. Jan..28, 2003) (finding substantial 695). In any event, as discussed above, the evidence to satisfy the ordinance's "public interest" city's decision is supported by sufficient standard where many residents expressed aesthetic evidence. concerns, keeping in mind that even under the TCA "'[1]and use decisions are basically the business of State and local governments' ") (quoting Am. Tower, B. Effective Prohibition L.P. v. City of Huntsville, 295 F.3d 1203, 1206 (llth Cir.2002)). Plaintiff further argues the city's denial effectively prohibits wireless services. Plaintiff specifically [5] In sum, plaintiff does not carry its burden to argues that because the city's denial was based on show the City of Hillsboro's decision was not general aesthetic concerns, no tower could' pass the supported by substantial evidence. The city city's revi0w, since no one would praise the 'grounded its decision to deny plaintiffs application aesthetic virtue of a cell-phone tower. See in "the specifics of the case," Todd, 244 F.3d at 61, Plaintiffs Pre-Hearing Memorandum at 17. not on merely unsupported and vague objections about cell-phone towers in general, as plaintiff [6] The TCA permits a federal court to overturn a contends.[FN4] local government's zoning decision when the decision has the "effect of prohi'biting the provision of personal wireless services." 47 U.S.C. § FN4. 'Plaintiff argues "[i]f the City had 332(c)(7)(BXi). Unlike the substantial evidence concerns other 'than · aesthetics, those inquiry, a district court reviews the record de novo concerns could have been addressed by a to determine whether it supports an effective conditional approval." See Plaintiffs prohibition claim. St. Croix, 342 F.3d at 833; 1Vat'l Pre-Hearing. Memorandum at i4-15. Tower, LLC v: PlainviIle Zoning Bd. of Appeals, Specifically, plaintiff argues, "had the City 297 F.3d 14, 22 (lst Cir.2002). had lingering concerns over either the lighting requirements or maintaining the [7] Most cases have held that a single zoning large trees bordering the Golden Road decision can give rise to an effective prohibition of location" the city should have conditioned wireless services. See, e.g., Second Generation approval on plaintiffs taking measures to ' Props., LP v. Town of Pelham, 313 F.3d 620, 629 alleviate those concerns: Id. But because (lst Cir.2002) (citing Town of Amherst v. the ci~s decision was not based on the Oran!point Communications Enters., Inc., 173 F.3d isSUe of lighting or trees, the court need not 9, 14 (lst Cir. 1999)); APT Pittsburgh LP v. Penn ' consider this issue. Moreover, plaintiff Township Butler County of Pa., 196 F.3d 469, does not point to evidence in the record 479-80 (3d Cir. 1999); MetroPCS, Inc.~ 259 showing what, if any, "reasonable F.Supp.2d at 1013; Airtouch Cellular v. City of El conditions" were feasible and that would Cajon, 83 F.Supp.2d 1158, 1167 (S.D.Cal.2000). 'have effectively alleviated the city's The Fourth Circuit, however, has held that only concerns. See ORS § 197.522 (providing . blanket bans. of wireless services implicate the that local government can deny a permit TCA's effective prohi"oition provision. See. City application when it "cannot be made Council of Va. Beach, 155 F.3d at 428. The weight consistent through the imposition of of authority, and the more persuasive reasoning, reasonable conditions of approval"). In concludes that an effective prohibition can be seeking to overturn the city's .decision, the shown either with a blanket ban or a single decision.. burden is on plaintiff. See St. Croix, 342 As courts have recognized, construing the effective F.3d at 830; cf. United States Cellular prohi'oition clause" 'to apply only *1261 to general Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-65 Page 10 ell2 301 F.Supp.2d1251 Page 9 (Cite as: 301 F.Supp.2d 1251) bans would lead to the .conclusion that, in the important, plaintiff does not show "further absence of an explicit anti-tower policy, a court reasonable efforts are so likely to be fruitless that. it would have to wait for a series of den/ed is a waste of time even to try." Second Generation, applications before it could step in and force a local 313 F.3d at 629. For instance, the record indicates government to end its illegal boycott of personal plaintiff could have achieved its objectives by wireless services.' "St. Croix, 342 F.3d at 833 installing two towers at other locations. R. 117, (quoting Sprint Spectrum, LP v. Willoth, 176 F.3d 1L513-15. Although the record suggests one of the 630, 640-41 (2d Cir. 1999)). Thus the court should two alternative towers would be three feet above consider whether, as plaintiff contends, the city's FAA regulatory limits, R.425, R.517,19, plaintiff denial in this case' amounts to an effective does not point to any evidence showing the effect prohfoition, reducing the one tower bX three feet would have on service prOvided by thb tw°-tower alternative. In invoking the effective prohibition clause," 'the Instead, in response to the FAA regulatory limits, it burden 'for the carder ... is a heavy one.' "Second appears plaintiff submitted a prOposal taking into Generation, 313 F.3d at 629 (quoting Town of account only one proposed tower. R.425, R.575. Amherst, 173 F.3d at 14); see also MetroPC$, 259 Such an attempt does not suffice to carry plaintiffs F.Supp.2d at 1013 (stating a provider challenging a burden to show any further reasonable efforts would permit denial on effective prohibition grounds be fruitless. Similarly plaintiff does not attempt to "bears a 'aeavy' burden of proof'), show that the proposed tower was the "only feasible plan" or that "there are no other potential solutions [8]. As an initial matter, in determining whether a to the purported problem." St. Croix, 342 F.3d at den/al is an effective prohibition, courts have 834. [FNS] looked to whether the proposed tower would close a "significant gap" in coverage., St. Croix, 342 F.3d at 835 n. 7; Omnipoint Communication~ Enters., FN5.~ That the possible alternative would LP. v. Zoning'Hearing Bd. of Easttown Township, have required two towers does not make 331 F.3d 386, 397-98 (3d Cir.2003); Second the Golden Road proposal the only feas~le Generation, 313 F.3d at 631. In addition, the option. Although plaintiff might believe provider must show, not just that this permit its one-tower alternative is the more application was denied, but that further " attractive option, the city could have 'reasonableefforts are so likely to be fruitless that it reasonably believed two towers in other is a waste of time even' to try.' "Second Generation, locations is' 'better than one tower in the 313 F.3d at 629 (quoting Town 'of Amherst, 173 proposed location. See, e.g., Parish of F.3d at 14); accord St. Croix, 342 F.3d at 834. Plaquemines, 2003 WL 193456 at '19-20 Under this standard, the provider must show its" (noting, even though the alternative site 'existing application is the on/y feas~le plan' and ... would require "two towers at other 'there are no other potential solutions to the locations," the city could reasonably prefer purported prOblem.'" St..Croix, 342 F.3d at 834 "two or more towers" at other locations (quoting Town of Pelham, 313 F.3d at 630, 635). instead of one tower at the location Sprint Plaintiff caanot meet the applicable standard- chose); see also Town of Amherst, 173 F.3d at 15 ("Ultimately, we are in the First, plaintiff does not establish its prOposed tower realm of trade-offs: on one side [is] the would close a "si~ificant gap" in coverage. A opportunity for the carrier to save costs, significant gap does not exist simply because an pay more to the town, and reduce the area with coverage also has "dead spots" (i.e.," number of towers; on the other are more 'Is]mall areas within a serv/ce area where the field costs, more towers, but possible less strength is lower than the minimum level for offensive sites and somewhat shorter reliable service' "). Second Generation, 313 F.3d at towers."). 631 (quoting 47 C.F.tL § 22.99). It is undisputed plaintiffs tower would simply im~ve existing indoor coverage, not fill a complete void in '1262 And contrary to plaintiffs contention that coverage. See, e.g., Phflntiffs Reply Memonmdum .the city rejected the tower simply because the tower at 3. This at most appears to be a dead spot. More would have been visible to the neighbors, the oity Copr. © West 2004 No Claim to. Orig. U.S. 'Govt. Works IV-66 htt~://pfint.westlaw.com/deliverv,html?dest=am&dataid=A00558000000661800010786 P~g~ ! 1 of 12 301 F.Supp.2d 1251 Page 10 (Cite as: 301 F.Supp.2d 125!) based its decision on the 'specific circumstances providers have been permitted to build similar presented in the case, not on unsubstantiated structures on similar sites while it has been denied." general obserVations equally applicable to any cell- Id. at 1012 (citing cases). That is, plaintiff must phone tower. In short, plaintiff does not carry its show the city treated a competitor more. favorably burden to show the city's denial has the effect of "for a functionally identical request." Id. In prolu"oiting wireless services, determining whether unlawful discrimination occurred, a court must remain mindful that cities C. Dbcrimination retain" 'flexibility to treat facilities that create different visual, aesthetic, or safety concerns [9] Plaintiff generally contends the city's denial differently to the extent permitted, under generally results in unlawful discrimination, because the city applicable zoning requirements, even if those previously has granted conditional- use permits for facilities provide functionally equivalent services.'" two other wireless-communication facilities in Id. at 1011 (quo.tingH.R. Conf. Rep. No. 104-458, residential areas. Plaintiff speculates that the city at 208, reprinted in 1996 U.S.C.A.A.N. at 222). denied the Golden Road permit simply because the Thus a zoning board can treat one provider's neighborhood at issue is affluent. Plaintiff contends application differently from another provider's · a municipality should not be permitted to 'deny a application based on-"traditional bases of zoning conditional-use application, on the sole ground the regulation." City of Va. Beach, 155 F.3d at 427. proposed location' is in a neighborhood more affluent than others: While plaintiffs position may Plaintiff does not carry its burden to establish be laudable, it points to no evidence showing the unreasonable discrimination. Plaintiff cites a map city based its decision on the alleged wealth of the showing the city has '1263 approved two other residents. As discussed below, plaintiff docs not permits for wireless facilities in residential zones. otherwise offer sufficient evidence supporting its R. 779-81. However, neither this map nor plaintiff 'argument the city engaged in unreasonable establishes any relevant similarity (other thtm the discrimination.'[FN6] common zoning designation) between those other two locations and the Golden Road location at issue here. The record shows the other' facilities are "at FN6. It is worth noting that plaintiffs different locations within the [city]." MetroPCS, argument, regarding discrimination, i.e., 259 F.Supp.2d at 1012 (holding that a mere that other, similar permits have been showing facilities were permitted in different granted, is at least partially inconsistent locations within a district was not "unreasonable with its argument regarding effective discrimination under the Telecommunications Act, prolu"oition, i.e., that the city is effectively asa matter of law"). In fact, the board specifically prolu"oitingwireless serviCes, distinguished the other two sites. 'See infra at 1259-60. Nor does plaintiff show that the two other residential area permits were approved, as in this The TCA prohibits zoning boards from case, to improve indoor coverage rather than to fill unreasonably discriminating *'among providers of a complete void in coverage. In sum, functionally equivalent services.'* 47 U.S.C. § There is no evidence that the City Council had 332(c)(7)(B)(i)(I). As with claims'under the any intent to favor one company or form of effective proh"oition clause, there is no deference to' service over another. [Instead] the evidence the local governmenfs findings. Airtouch, 83 shows that' opposition to the application rested on F.Supp.2d at 1164 (citing Cellular Tel. Co. v. traditional bases of zoning regulation: preserving Zoning Bd. of Adjustment of Ho-Ho-Kus, 197 F.3d the character of the neighborhood and avoiding 64, 71 (3d Cir. 1999)). aesthetic blight. If such behavior is unreasOnable then nearly every denial of an application such as [10] The TCA allows discrimination among this will violate the Act, an obviously absurd PrOviders as long as the discrimination is result. reasonable. See grilloth, 176 F.3d at 638. Plaintiff City of Va. Beach, 155 F,3d at 427. · bears the burden of establishing the city engaged in unreasonable discrimination. See MetroPC$, 259 HI. Conclusion F.Supp.2d at 1011-12..Plaintiff must show *'other Copt. © West 2004 No Claim to Orig. U.S. Govt. Works IV-67 Page 12 o! 12 301 F.$upp.2d 1251 Page 11 ~ (Cite as: 301 F.Supp.2d 1251). · i For the reasons discussed above the court affirms the city's denial of plaintiffs application for a conditional use. The city's decision was based on more than a scintilla of evidence, does not effectively prohibit wireless services, and does not · discriminate amo~ providers. 1T IS SO ORDERED. 301 F.Supp.2d 1251 END OF DOCUMENT Copt. © West 2004 No Claim to Orig. U.S. Govt. Works I~-68 http://print.~st~aw.c~m/de~ivery.htm~?dest=atp&dataid=A~558~66~8~9786~ 1... 4/14/2004 To: Eugene City Council and Mayor TorreY; Dennis Taylor, City Manager From: Citizens for Responsible Placement of Cell Phone Transmission Towers Regarding: Revisions to Eugene's Telecommunications Ordinance 1/7/04 Ladies and Gentlemen: Our original submission to the City Council, dated 10/2/02, is attached for your review. This includes our analysis of the existing telecommunications Code; a model ordinance from Great Barrington MA; information on property devaluation · · associated with cell phone towerS; as well as copies of the Lane County Code and EC '9.5750. The Lane County Telecommunications Code has been amended, since we originally compiled this packet, and the updated verSion is · included as Attachment G. Lane County's .Telecommunications Code requires a setback of 1200 feet from the nearest residence or School. It is time for the City Of Eugene to take comparable actions in service of its citizens. We have added a letter from the National League of Cities in support of the federal Local Control of Broadcast TowerS Act (S3102), and Local COntrol of · Cellular Towers Act (S3103). You Will find this in your packet as Attachment I. The letter from the National League of Cities makes clear that conflict over tower siting has been problematic for cities all over the U.S. The best solution will be federal legislation which restores local control over siting .and construction of telecom infrastructure. Until that happens, local governments must take action to pr. ote. ct citizens.from attractive nuisance, property devaluation, and visual blight reSulting from inappropriate siting of transmission towers. To quote from the concluding paragraph of the letter: '~/Vhile local zoning control over cell towers may seem burdensome to telecommunications providers, it is no greater a hurdle than that faced byall other businesses who are applying to build in any giv n city or town." Respectfully, Mona Linstromberg and Martha Johnson Citizens for Responsible Placement of Cell Phone Transmission TowerS IV-69 -.- ..... -. Attachment I / Letter from National League of Cities 'I'h~ltonombl= Pmfl~ Lnhy Wa~hinglnn, D,C. 20510 -,.mm Ot~ behalf of ~he mambenhip of~c Nmto~ ~ of~fim, wc go ~ng.to ~es. ~ s~mg mppo~ ~ ~c ~ C~! ~Bm~ ~W~s ~ Cg.3102) ~~ ~ ~ ~hO[ of Ce~ Towns ~ ~103~ We ~e ~.1~6 ~ ~' m~ ~uld ~rc ~ abili~ oflo~ ~v~m~ m cff~ve~ ~ce ~e ~~1 As you ~w, ~e 'rclcm~ml~ ~ of 1~96 leiM~on ~fl~ ~e f~eu.l " e ~d l~i 8ov~ment ~fl~ o~ d~t~ ~~ tow~ ~[~g, {t dd sp~oally ~t ~. ~ty or.to or leffi 8o~rm~ts to ~," ~ Am 2~ ~v~ sma ~d loal ~omme~ ~a pm~bt~g "~o pm~ offal Wi~c~ s~h~' ~ ~cflm also ~s ~O ~ ~ P~ ora ~Os~ role ~g ~e'~pfiou of Sm~.~ Jo~ ~g IV-70 Pt~eTwo We believe ~het Con~s must rnave ~ ~n~ ~c ~ o~e ~t~ ~ well Is ~ °v~ SJDO~, ~w D~ To: Eugene City Council and Mayor. Torrey; Pam Berrian; Jerry Jacobson; Jan Childs From: Citizens for Responsible Placement of Cell phone Transmission Towers Regarding: Revisions needed to Eugene Code 9.5750 10/2/2002 Ladies and Gentlemen: Over twenty mOnths agot we became involved in the issue of appropriate placement of wire[ess transmission facilities. Our group~ Citizens for Responsible Placement of Cell Phone Transmission ToWers, has ~cused on working with Lane County to craft a meaningful ordinance. This has NOT been about stopping any and all new towers. This HAS been about protecting the residents of Lane County from the intrusive impact · of these facilities whi[e still enabling-service providers to provide adequate coverage. We are dose to achieving that goal - Lane Coun. ty's Telecommunications Ordinance ~4th soon to be approved amendments. However, we have not limited our efforts to rural Lane County. Ms. Linstromberg persona[[y was active in opposing the SBA/Sprint application for the proposed site on Vi[lard Street (SR 01-32). Martha Johnson has led'opposition to the proposed Master Towers site on Oakleigh off River Road ISR 01-33). Because we are familiar with the City's existing Code 9.5750 as written and as it has been app[ied~ we t~rge the Eugene City Council to revisit an ordinance that was innovative in 1997. That ordinance now needs revision to protect Eugene's neighborhoods from the intrusive nature of telecommunications infrastructure. At'the time Eugene's telecommunications ordinance was enacted~ most [0cai cell towers were being appropriately placed in heavy commercial or industrial zones. Since then~ several factors have combined to bring more applications into residential areas. First~ the newer digital PCS systems operate on a d~erent frequency, and transmission facilities must be placed closer together than with the old cellular systems. Second, the wireless telephone industry has experienced explosive growth, and multiple providers have raced to compete for market share, and set up infrastructure. However, current market activity seems to indicate that the telecom industry has over-anticipated the demand for all things wireless. In light of this recent downturn, our area may already have adequate coverage and a surfeit of facilities. In the following proposal for revisions to EC 9.5750, there are three major themes: stronger regulation; increased setbacks from homes and schools; and independent technical review of applications. We are Well aware of the restrictions placed on local governments by Section 704 of the federal Telecommunications Act of 1996 (TCA). Section 704 of the TCA has been used by service providers to bully local jurisdictions. Closer reading of Section 704 finds that local jurisdictions, if they are proactive, can still protect their citizens from the intrusive nature of these facilities. The revisions we propose require much larger setbacks from homes and schools than current code, but will not be in violation of the TCA. This is because the rationales for larger setbacks are: IV-72 preservation of property values, protection ~against attractive nuisance, and protection from other public safety hazards. These rationales can be stated in the Purpose section of the revised code. None of these rationales involves restricted siting of wireless communications facilities based on "environmental effects of radio-frequency emissions," as stated in section 704 of the TC^. Thus we submit to you the following analysis of Eugene's ordinance and our recommendations for revision. We are not formally trained in land use planning or radio frequency engineering. However, we have reviewed telecommunications ordinances from around the nation, and have Contacted the individuals who have formulated and enforced those ordinances. We hope that the following will provide some insight into the current ordinance and how these towers are negatively impacting neighbOrhoods. Along with our proposed revisions, you will find a number of supporting attachments. We have much more available in our files than we coUld include here. Feel free to contact us if you want more information, either for your education or to verify our statements. Kind ~Regards, Mona Linstromberg afrd.~.artha~ohnson . Citizens for RespOnsible Pl~c~nt of Cell Phone Transmission Towers IV-73 To: the Eugene City Council and Mayor Torrey; Pam Berrian; Jerry Jacobson; Jan Childs From: Citizens for Responsible Placement of Cell Phone Transmission Towers Regarding: Revisions needed to the Current Eugene City Code on Siting and construction of Telecommunications Devices A list of revisions we propose to Eugene City Code 9.5750 follows. The list follows the same order in which the current code is written, with sections and subsections numbered as you will find them in the current code. For your convenience, EC 9.5 750 is included in your packet as Attachment H. EC 9.5750(1 ). Purpose. The Purpose section is commendable, but could be strengthened with references to preservation of property values; avoidance of public safety hazards; avoidance of attractive nuisance; protection of scenic and natural resources, and other values. See Purpose section of Attachment A (p195 of article by T. Blair) for more details. MoreoVer, principles from the current Purpose section are not applied as approval Criteria. This results in a watered down ordinance that fails to protect property values for owners of homes and businesses near proposed cell tower sites. EC 9.5750(3) Collocation of Additional Antennas on an Existing Tower. We propose that no additional antennas may be added to an existing tower unless the tower is brought into compliance with the updated code. For example, if an existing tower is closer to a residence or school than updated setbacks allow, no new antennas may be added. At the time this revision comes into effect, there will .be pre-existing telecommunications 'facilities as well as permit applications still in process. These will of course fall under the regulations in effect at the time of application. Nonconforming fadlifies may continue in use but shall not be expanded, altered, or modified other than as necessary for murine maintenance and repair, unless brought into compliance with the revised provisions of this ordinance. EC 9.5750(4) Collocation of Antennas on Existing Buildings, Light or Utility Poles, · and Water Towers. Current code allows collocation as an outright permitted use in certain zones. We propose revising this so that collocation is subject to site review process in zones C- 3, C-4, I-1, I-2, and I-3. In all other zones, collocation should require a cOnditional use permit. This would necessitate rewriting mOst of subsection (4). The rationale {hr ~fricf~r limik nn cnllnr'nfinn i¢ nr~<~n/nfJnn n( r~¢icl~nfinl nnrt h,,~in~ nrnn~rt,,/ IV-74 2 EC 9.5750(5) Construction of Transmission Tower. The current system is a tiered approach, based on zoning of the proposed site. Current code allows construction of new towers as an Outright permitted use in the' C-4, I-1, I-2, and I-3 zones. We propose that even in the C-4, I-1, I-2, and I-3 z°nes, construction of new towers should be subject to a site review approval process. This will ensure compliance with all provisions of this code, particularly an independent technical review of RF aspects of the application. Zones in which towers are currently prohibited are AG, R-2, R-3, R-4, H, NR, and PRO. We propose that R-1 and RA should be added to this list, since the vast majority of residential neighborhoods in the Eugene area are either R-1 or RA. RA must be added because the Lane County Board of Commissioners recently adopted EC 9.5750 to apply on county lands within the Urban Growth Boundary, and most of the residential neighborhoods outside city limits and inside the UGB are zo'ned RA. Applications for towers in C-2 zoning should be subject to a Conditional Use Permit, rather than the current Site Site Review process; because there are a significant number of neighborhoods in which C-2 zoning is adjacent to residential zoning and/or use. Conditional use permits should be required in PL, C-2, C-3, S, and GO. EC 9.5750(6) Application Requirements. (a) Collocation of antennas. EC 9.5750(6)(a)1. Current code requires the applicant to give 'A description of proposed antennas' location, design, and height." The application requirements should also include engineering specifics such as effective radiated power (ERP), mounting angle of proposed antennas, and if antennas are to be placed on a rooftop, documentation by an independent RF engineer that the ERP will not be in · excess of FCC standards for rooftop installations.. For example, in February of 2002, we contacted the City of Eugene about an antenna array placed on the Bedac Building (EUG 0243) across from the then operational Santa Clara Elementary School. There are 16 antennas on the rooftop, and the newest six have an ERP of 1805 watts each. This newest installation puts the cumulative ERP at the Berjac Building in excess of the total 2000 watts FCC allows for rooftop installations. In response to our concern, Mr. McKerrow stated: "According to the City's telecommunication ordinance an applicant wishing to install telecommunication devices must meet all of the application requirements. One of the requirements Js documentation that shows the proposed equipment will meet FCC standards for electromagnetic radiation. The application for this permit included a report from a radio frequency engineer indicating FCC-approved equipment will be used and FCC guidelines met. The requirements of Eugene Code Section 9.5750(6) were satisfied and the permit was approved." IV-75 3 From A LOCAL GOVERNMENT OFFICIAL'S GUIDE TO'TRANSMITTING ANTENNA RF EMISSION SAI:.~ ~ Y: RU~ F$, PROCEDURES, AND PRACTICAL GUIDANCE (FCC): "Moreover, the limits (On RF exposure) themselves are many times below levels that are generally accepted as having the potential to cause . adverse health effects. Nonetheless, it is recognized that any instance of noncompliance with the guidelines .is potentially verY serious, and .the FCC has therefore implemented procedures to enforce compliance with its rules. At the same time, state and 'local governments may wish to verify compliance with the FCC's exposure limits IN ORDER TO PROTECT THEIR OWN CITIZENS." The City seems to be verY accepting of the industry's affirmation of compliance, but is the City Considering the cumulative effect of multiple antenna array? Is the City aware that the FCC has inadequate capability to monitor or enforce compliance? Has the City considered its exposure to litigation from its own citizens? Appendix A of'the above-referenced FCC publication, under Evaluation Required If, states: "Pers. onal Communications Services, building-mounted antennas: total power of all channels > 2000 W ERP." The situation just described serials out serious signals that the City has been remiss in the area of compliance. See Attachment C, Berjac Bldg. EC 9.5750(6)(a) 2. "Documentation demonstrating complianCe with non-ionizing electromagnetic radiation (NIER) standards as set forth by the FCC..." The FCC's standards do not address NIER specifically. The relevant FCC standards are based upon Maximium Permissible Exposure (MPE) to radio frequency radiation at specific power densities. The Code's reference to NIER in this context suggests a flawed understanding of RF prindples.' Code language should use proper terminology. EC 9.5750(6)(a) 8. "Signature of property' owner(s) on the application form or a statement from the property owner(s) granting authorization to proceed with the development and land use processes." Current code lacks any provision that would require the' telecommunications tenant to make their landlord aware of his/her potential future liabilities, including costs for removal if it becomes defunct. Having reviewed a number of telecommunications leases, we have found it is fairly common practice for the wireless tenant to make his landlord potentially responsible for costs of future removal of the facility should it become defunct. We propose that the landlord should be informed of this potential liability at the time he or she signs the application or authorization to proceed. EC 9.5750(6)(a) 9. With respect to ancillarY fadlities, whether located on the ground or on a rooftop, site plans should address the need for adequate ventilation of the battery cabinet, and plans to prevent and/or contain leakage of hazardous chemicals. The rationale for this is prevention of chemical hazards, fires and explosions. Regarding chemical hazards, sulfuric acid is present in a typical telecommunications array of 16 one hundred pound batteries in sufficient quantity IV-76 to warrant notification of the presence of hazardous material to local fire and safety authorities, per EPA regulations. Regarding the need for proper ventilation, battery rooms and cabinets are notorious for explosions when hydrogen' created by electrolysis and mixed with oxygen is ignited by a spark. The proliferation of backup batteries at communications sites has spread the hazard from the private concern of the battery users to the public at large. Battery cabinets, vaults, and rooms are now scattered like time bombs all around the world, many where an explosion could injure or kill unaware bystanders. Many vaults have exploded and recently a communicatiOns shelter in Yuma, Arizona blew up, shattering the windows of a neighboring house. Regarding structure fires at electronic equipment, rooms, more than 1000 structure fires are reported each year to US fire departments in electronic equipment rooms. See Attachment D, Battery Hazards. EC 9.5750(6)(b) Construction of Transmission Tower. 'EC 9.5750(6)(b) 2. Current code requires the applica~nt to state "The general capacity of the tower in terms of the number and type of antennas it is designed to accomodate." We propose that this provision require the applicant to provide the following information: exact location, in longitude and latitude; ground elevation; height of tower; type of antennas; antenna gain; height of antennas on tower; output frequency; number of channels; power output and maximum power output per channel. ECg.5750(6)(b) 3; Regarding NIER standards, we have the same comment as above in section (6)(a)2. EC9.5750(6)(c) Site. Review and Conditional Use Permit Applications. EC 9.5750(6)(c) 1 .If there is residential property near the proposed site, we propose ~that the required visual study should include views from residential areas, and that the visual study include a balloon test, as follows: Within 35 days of submitting an application, Applicant shall arrange to fly, or raise upon a temporary mast, a three foot (minimum) diameter brightly colored balloon at the maximum height' and at the location of the proposed tower. The dates (including a second date, in case of poor visibility on the initial date), times, and location of this balloon test shall be advertised, by the Applicant,' at 7 and 14 days in advance of the first test date'in the newspaper with a general circulation in Eugene. The Applicant shall inform the Eugene Planning Department, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours between 8:00 AM and 5:00 PM of the dates chosen. For model of enacted ordinance which requires a balloon test, see Attachment A, p 210. Prior to submitting application, applicant shall hold a public meeting which area property owners and residents will receive notice of. Lane County's recently adopted code on construction and placement of telecommunications fadlities requires this type of neighborhood me ting. For further details, see Attachment G, IV-77 5 Lane' Code 16.264(3). Application shall indude evidence of compliance with this requirement. EC 9.5750(6)(c) 2. Alternate Sites. The current code allows applicant to consider alternate sites only in more intensively uSed commerdal a~d industrial zones. In many areas, this results in a dearth of potential alternative sites. Applicants should be required to submit'documentation of having considered any feasible sites within the required radius, both in more intensively zoned properties, and in the same zone as the subject property. This provides a larger pool of potential alternative sites, and could make it possible to meet both commUnity and telecommunication provider needs more easily. The required radius should be increased from 2000 to 2600 feet. This is because the coverage footprint for PCS antennas has a diameter of approximately 4 miles, and the antennas can be placed anywhere within a 25% radius of the center and still provide adequate service (radius of a 4mile circle -- 2 miles, 25% of 2 miles ~ one half mile, or 2640 feet). Again, Planning staff lacks the technical expertise to -determine verity of an applicant's statements regarding RF coverage areas. This points to the need for i.ndependent review of ALL applications by a qualified RF engineer, whose fee shall be Paid by the applicant. EC 9.5750(6)(c) 3. Collocation on existing structures. Current code language (regarding the applicant's attempt to collocate on existing structures rather than build a new tower) is so broadly written as to allow the applicant to forego collocation at the wave of a hand. Under current code, an applicant can get out of collocation merely by stating that it is "impractical". In general, there are two types of telecommunications applicants: wireless service providers, and tower contractors. Wireless service providers generally are amenable to collocation, because it saves' the expense of putting up new towers, and gets them on the air faster. Tower contractors are more likely to avoid collocation if possible, since they make their money by building new towers and leasing space on them to wireless service providers. In order to preserve property values for homeowners, Collocation on existing structures should be required unless the applicant can document with an independen{.RF engineering report that it is impossible. Wherever possible, mini- cell technologY on light and power poles should be required. This is another provision that cannot be administered effectively without independent review of ALL applications by.an RF engineer. EC 9.5750(6)(c) 5. Current code requires the applicant to submit 'A statement Providing the reasons for the location, design, and height of the proposed tower or antennas." To ensure that the applicant's claims are .accurate, a provision needs to be added, either in the telecommunications code itself, or better, in site review and conditional use permit criteria, which specifies that applications found to contain false or misleading statements or information will be suspended, and if already approved, will be denied. We have found numerous examples from both Lane County and the City of Eugene in which telecommunications providers have stated IV-78 that their proposed location, height, or design were the only ones which' would would allow their network to function. In the face of community Opposition, the providers' staunchly held assertions for the above needs have been revised. Lane Code contains a similar provision regarding denial of applications which contain false of misleading information.' See'Attachment E, Lane Code 14.700(3)(iii). EC 9.5750(7). Standards for Transmission Towers and Antennas. EC 9.5750(7)(a) Separation between transmission towers. Based on the data cited above regarding RF footprint size for PCS sysytems, the required minimum separation between towers should be at least 2600 feet. EC 9.5750(7)(c) Collocation. Current code language allows applicants to meet standard by merely stating in the application that their tower is' DESIGNED to · accomodate collocation. Code should be revised to require that the proposed design be independently reviewed and approved by a qualified RF engineer as having the capacity to accomodate collocation by most telecommunications providers. SR 01-33, Master Towers, a stealth tower which the applicant claims is designed for three providers, was approved by the City. Not long after its approval, Mericom submitted a preapplication for a tower only 400 feet from Master Towers site, stating that Mericom needed an additional new tower because Master Towers' design would not accomodate their needs, specifically, that "the, proposed flagpole tower would not have sufficient diameter and drcumference to place Verizon's antennas inside the flagpole." EC 9.5750(7)(d) Setback. In terms of preserving property values and protecting the City from lawsuits, this is the MOST IMPORTANT provision of the entire code on telecommunications facility siting. Howard Richter & Associates, a 26 year-old Chicago real estate appraisal firm, found as much as 15% devaluation in homes within 270 feet of a cell tower. To illustrate from a recent local example, within 270 feet of a proposed site on River Road, there are approximately 30 homes. The average sale price for a home in the Eugene area is currently $153,860 (£ugene/~'G, 2/3/02). 'A 15% devaluation is equal to a loss of value of $23,079 for each home, or a neighborhood total of $692,370. A quote from the Chicago Tribune 2/1/99: "the bigger issue that has municipal leaders closely watching the case is potential liability of villages that have allowed such towers to be built" In North Barrington, IL, 21 residents sued the Village of North Barrington and Ameritech Mobile Communications for property devaluation' in January of 1999. The final Outcome of that case was not available 'at the time of this writing. In Harris County, Texas, a jury ordered GTE Wireless to pay $1.2 million to a Hooston couple who sued for nuisance, mental anguish, and property devaluation after a 100 foot cell tower was constructed.20 feet from their property line. The City. was also named in the lawsoit, but settled out of court for an undisclosed amount It would seem in the best interest of the City of Eugene to IV-79 " 7 increase setbacks from residences in order to reduce its exposure to potential litigation by aggrieved homeowners. See Attachment B for full text articles and citations regarding property devaluation. In the interest of consistency with recently adopted Lane County Code 16.264, we . propose a 1200 foot minimum setback from the nearest residence~ (Although Lane Code 16.264 now calls for a 1000 foot' setback from homes, work is underway to amend the setback to 1200 feet, from homes and Schools.) See Attachment G, Lane County Code 16.264. ^ 1200 foot setback from schools is needed because cell towers have been identified as an "attractive nuisance." Children and teenagers are attracted to climb towers, and have fallen to their deaths in other communities. ^ 1200 foot setback from' schools is among the soon-to-be adopted revisions to Lane County's new telecommunications ordinance. With regard to mechanical safety in case of tower failure, we p~ropose that in addition to the setbacks from homes and schools as proposed above, towers in all zones should be set back from the property boundary a distance that is equal to at least the height of the tower. Current code language requires little or no setback from property boundaries in some zones, which could result in property damage~ 'injUry, or death in case of tower failure. EC 9.5750(10) Removal of facilities. Again, the landlord should be made aware of his potential liability up front. Current code states that the city "may require the posting of an open-ended bond before development issuance t° ensure removal..." This language should be strengthened' so that a bond is required as part of the application process. Recent economic downturns in the telecommunications industry highlight the need for this provision. If a service provider goes bankrupt but posted a bond with their application fee, the cost of removal is already covered. EC 9.5750(11) Fees. Existing code has a provision for independent technical review of telecom applications; however, it is weakly worded and cumbersome to implement, due to the need for the City Manager's involvement. It is telling that this provision has never yet been utilized. To illustrate, EC 9.5750 (11 ) Fees~ states: "notwithstanding any other provision of this code, the city manager may require, as part of application fees for building or land use permits for telecommunication facilities, an amount su~cient to recover all of the city's costs in retaining consultants to verify statements made in conjunction with the permit application, to the extent that verification requires telecommunications expertise." See Attachment H (full text of EC 9.5750). ' During public comment on the Villard proposal (SR-01-32), the Fairmount Neighborhood requested that there be independent technical review of the IV-80 .. 8 application. We were informed that the City could not seek independent review because no mechanism was in place to hire expert review at that point in the process. We also learned that the.City had NEVER used the existing provision for independent technical review. It is well established in Oregon land. use case law that when there is question as to whether a proposal will meet application criteria, the burden of proof rests solely upon the apPlicant. Nonetheless, it was up to the FairmoUnt Neighborhood to seek out an acoustics analyst to refute Sprint's noise analysis. This study, paid for by the Fairmount NeighbOrhood, figured in the hearings officer's denial of Spdnt~s appeal. EC 9..5750 (11 ) as currently written provides only lip service. A method is needed to ensure it can be implemented and used. The following is from correspondence with Martin Connor, AICP, City Planner, Torrington, CT: "Your ordinance, or fee' Schedule should be written to allow you to hire experts at the applicant's expense to review the application. We hire an RF Engineer to review the appli'cation and be available during the public hearing process. That was key in a denial which went to litigation when I worked for the ToWn of Litchfield, CT. Our denial held up in Federal Court as the technical information Was woefully inadequate. We would not have known that without our own RF Engineer." Independent technical review of ALL applicatiOns for construction of new transmission towers by a qualified RF engineer is of cdtical importance to the effectiveness of Eugene's telecommunications code. Planning staff lacks the technical expertise to vedfy statements in applications regarding RF coverage footprints; height needed to achieve adequate coverage; potential for collocation on existing structures in the area, etc. The FCC's publication A Local GOvernment Official's Guide to Transmitting Antenna Radi° Frequency Emission' Safety: Rules, Procedures,, and Practical Guidance, p. 11, .states, "Many larger cities and counties, and most states, have radio engineers on staff or under contract." This indicates that independent review is common practice in many jurisdictions. As regards the expense of such review, current code correctly requires that the applicant shall pay the cost of the review. In conclusion, we propose the addition of some provisions which existing code does not address at all. First, telecommunications applicants will insist that they need blanket RF coverage for their networks to function. This is not true, nor does the FCC require towns and cities to guarantee blanket coverage for service providers. See Attachment F, excerpt from FCC Fact SheeL City code should modified to spedfy that there may be gaps in' service coverage areas. Second, the applicant should be the service provider, or in cases where the apPlicant is a tower contractor building a transmission tower for lease, he should have a signed lease agreement with at least one service provider. This ensures that new towers will not be built on speculation, but to meet an existing need. IV-81 9 Finally~ we are not certain whether the City makes use of a savings and severability clause such as that applied by lane County: "If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be' deemed a separate, distinct, and independent provision, and such holding shall not affeCt the validity to the remaining portions hereof." We strongly recommend that such a clause be added to this ordinance, to preserve the remainder of the ordinance, if any particular provision should be deleted in the future. Many thanks for your time in consideration of our thinking on this issue. ~,~',~'~l,,'~'-'"'"Respect~ully Submitted, ~~ ~ Martha~ohnson and Mona Linstromberg Citizens for Responsible Placement of Cell Phone Transmission Towers IV~82. List: of A'L'~chments A. Tony Blair. Planning and Zoning Regulations: Some Local Solutions NB: this attachment Should be reviewed in full,, as it details the crafting of a telecommunications ordinance, using as its basis an ordinance enacted in Great Barrington, MA. We have anumber of Other enacted ordinances in our files. B. Citations and full text articles on property devaluation C. Berjac Building information. D. Battery Hazards E. Lane Code 1&.700(3)0ii) F. Excerpt from [998 FCC fact sheet G. Lane Count7 Code 16.26z~ (new telecommunications ordinance, ! adopted 04/02) H. Eugene Code 9.5750 IV-83 Attachment A 186 Chapter 13 Planning and Zoning Regulations: Some Local Solutions By: Tony Blair Let's assume, for the moment, that you live in a town with no cellular towers and you want to help the town create zoning regulations that Will allow for maximum, control and oversight, consistent with federal · law. Or, maybe your town has already been approa~ched by wireless' service providers. You have applications for cell towers pending and you have discovered that your current regulations do not adequately protect the community. How do you get effective regulations in place, or tighten the ones you have? What are the rights and responsibilities of the average citizen to effect change at the local level? What is reasonable to ask of municipal agents? Where do you start? What ~ti~ns Can Do ~.. Perhaps a cell tower or wireless installation has been proposed in ~'~ your neighborhood. You've hit the panic button and don't know where to start. The fa'st tasks at hand are to educate yourself about the existing regulations in town, persuade the proper officials to recognize the need for a solid planning approach, and to bring effective, persistent political pressure on decision makers until they do what is necessary and consistent with their mandate to protect the health, safety,, and welfare of the community. · Organizing. at the local level takes hard work. The very first step is to educate yourself about the local process and find out which board or office is responsible for draRing land-use regulations or zoning codes. A copy of such regulations can usually be gotten from the town or city clerk, the building inspector,, or the zoning enforcement officer. Find out which board Or office is responsible for permitting special uses such as cellular towers. Is it the zoning board7 The zoning board of appeals? The city council? The planning board? Every state is different in how land-use powers are vested. Land-use regulation often differs from town to town. IW84 187 CELL TOWERS CELL TOWERS 188 You will need to know which, board is responsible for writing such An Ovm,iew of Zoning: regulations. It may not be tho same board as is given the siting powers, or What It Can -And CatmotDo-According To Fed~alLa~. later --- enfOrcement powers. For instance, in Massachusetts, tho planning board may.write the regulations, but a Special Permit Granting Authority The parameters of zoning for "personal wireless servi~e ($PGA) may be the board of selectmen or the zoning ~d of appeals are set out in federal law, in the Telecommunicnttions A~t of 1996, Section (ZBA). 704.' Once you've determined the specifics of your situation, find out '"~:,, Cutting through the le_g~eso of the Telecom Act, a community when and where the decision-making board meets. Attend some meetings still regulate many aspects of tower siting, Where a tower is located, how to get a flavor for the personalties of the board members and a s%se of tall it can fl~, what can go on the tower, and how stroh installatio~ am tho way they approach their work. i monitored or radiofrequency (RF)'omi.nsions to make ~ ' · .: ---' tl~ are m It helps to contact other municipalities for information, or local! comphance .ws? ..the. FCC_ standards ~ among many other things, still fall nc'wspapers that have run articles about other tower*siting scenarios. under l?cal j_unsdwtion. But, there are better and certainly worse ways of Network. You will find that people who have been active in this field love going about the exercise of'that control. . to share their stories, expertise, and resources. Consider placing an ad in . ' .The Tei .c~. m .A~ also stipulates that.communities must be th~ local ~*wspaper to attract other citizens who.are concenled. An ad as'' . m denying permits. Denials should be for substantial reasons ct~nlted ma simple as: "Interested in the issue of cellular towers in our neighborhoods? written rcco~ of thc p~. The better the zoning regulations are, Call me at...' .will cost only a few dollars and may help you begin a .thc bett~ will be the' template for denials when siting requests are srou that the wor oad: are It's fair to Say one person cannot'do this alone. Few people have acuons, snomo mat come to pass. the spare fi~e, energy,, or tenacity to move SUch issues onto center stage . , Vvrhat. a comm~. 'ty cannot, do is to completely ban personal and pressure public officials to act constructively. Plus, there is power in. vnremss service i~om that commumty. Does that mcan it must allow numbers... No city council, or planning board can afford to ignore a room .~ tower or base station wi~ia thc conanunitY? Not ncc~ly. If th~ full of' people who have a clear agenda. But they have little problem ~....~ company could provide service from another adjacent comm-n'_qy, and is ignoring one citizen (or even a small group) whom they can dismiss as .~..:'ialready located on a tower in that ncarhy town, whcr~ by adding . By organizing your neighbors and others throughout the ~ antenn~as they could also cover your town ~ then you might be abl to keep that company from building a new tower in your town.a The basic community, you will develop a larger voice that will attra_c~ the local legal argument is that your town is not preventing tl~ company fi'om media. When you attend municipal' meetings t° speak about the issues, 'i~i providing service to the community but rather disallowing.a n~w base you will be-heard in a very different way than before. .:~ ~, station to bc erected within town boundaries. The reason for doing so is Om* local group in Great Barrington, Massacbusetts ~ Folks for ~:* that the company can already provide ser-~ce from an existing tower to Appropriate-Cellular Tower Sites, or FACTS .~ became a force to bc '' .', which the company already has legal accel. reckoned with when it could consistently, and .on very short notice, get ' ~ Under the Telecom Act, conanunities cannot "unreasonably'* fifty or .so people to any meeting where the .tower issues were up for * discriminate among providers. This means the town cannot block one discussion, It did not matter than only about three or four of'those people ~ cellular company from providing' service in the community if' oth~ were really wo~i-g diligently on the iSSU ~ Thc.grOup took on a force far gte, am' than the individual effoms of the members. / ..... : ~,. 2Recent case law supportsthis~ Sa~ Jan~ Hobsou's ~ ~T.'~lm~ CELL TOWl~P-~ 19~ providers have already i~tablished service.~ But towns can ~ and usually ~In addition, towns can require monitoring to make sure that all do ~ require th~ new Company to codocate on an existing tower. That is facilities meet the maximum FCC emissions guidelines -- no matter how rea~m~le discrimination -- allowing them both to cover the same area many providers are co-located at a particular site. Very few people at tho from-the ~ location. You might hear carriers arguing that they want a local level understand that the responsibility for compliance monitoring belte~ location, or.to provide better service -- but your town is not has shit~ed to municipalities. required to pll:ntide the carriers the absolute best possible location -- just a reasonable ~on. If another carrier is already providing service from an Hiring existing location, then it is probably good enough. ' In addition, your community must act within a reasonable period Telecommunications regulation and application-review is one of of time in dealing with applications. Towns cannot put service providers the most complex forms of land-use law today. Done correctly, it is unlike off indefinitely. State statutes establish precise timelines on land-use ~ anything that most planners and zoners have been called upon to do. Many applications. In some .slates or municipalities, a permit is automatically shy away from it because of the complexity. But what individual board granted if a doc~ision-making board does not act within a specified fi'me members are unfamiliar with.can -- and should -- be provided by hiring frame. It's a decision by default. ' outside expertise. One of the most vexing clauses in the Telecom Act -- for citizens One of the first things you will need to know is what in particular who are worried about health effects ~ concerns the telecommunications coverage already exists in your area. It is not enough restriction on considering the environmental effects of RF. Municipalities to speculate that a company "ought" to be able to provide coverage from carmot use the environmental effects of radio frequency radiation -- somewhere else. Wireless coverage is a function of tower height, signal which is widely interpreted by many, though not all, to include health strength, frequency, antenna direction, topography and several other effect~ in humans -- as a basis for making a siting decision "to the extent factors. You need to know with precision if another location can work. that such facilities comply with the Commission's regulations concerning And to know, you need expert assistance from an independent RF such emissions." engineer who is working for the municipality ~ not the Although towns cannot regulate for RF, it is important to know telecommunications industry. Such an RF engineer will be. familiar with the~ are other concenm that parallel environmental and health concerns the systems and technology of radiofrequency communication and will that can be reed as a basis for zoning. Examples include the use of large . help the town'determine if the information on an application is accurate, or. setl~cks and vegetative screening. This will prevent facilities from being if other solutions would be better for the town's interests. sited too close to dwell~ reduce visual impactS,' and help protect ~ A telecommunications engineer can be helpful Whether an propel~ values. Large setbacl~ will also reduce the potential damage if a ~ application is pending or not. One proactive approach used by tower collapSe~ or lure ice fall from it. Another important avenue is the fact communities is to hire an engineer to help create a telecommunications that 1ms, ers can create an "attra~ve .nuisance" ~ especially to students .~ master plan or overlay district, where facilities can be placed to provide' who may dare each other toclimb them. Aii~sctive nuisance is a legal term * adequate serAce- while still protecting the town's vital inter~. By that could come in handy when denying applications near schools, i having an expert do a few radial or file plots -- diagrams that model RI: All such provisions can result in the tower being located at a ~ coverage patterns ~ of likely sites, it can help town officials, as well as · reasonable distance from residential areas and schools, thereby reducing , interested citizens, understand how topography and demography work as a RF exposure~ but without directly depending on that rationale to do so. , whole. If a town can anticipate what the carriers want and do their own ; prior assessment, rather than passively wait for the industrY to define its' s own goals in town, a win~win situation may result. ~ Them is receat ca~ law on this ~ ~h~t_ appears to be in direct conflict with tie ~ The town will have to front money for an RF engineer but the ~ :~gom Act. Se~James HobsoR, Clmpter 9, pn~sentation, APT Pittsburgh v. Penn ~, expense is worth-it. A master plan will help with better siting decisions 191 ~.1. TOWERS C~-I- TOWISt$ 192 and f~.v~' law. its by the indu~ (if applications ~e d~), or by ~ Mor~o~ ~i~ (ffsit~g d~isions ~ ~r on~.) A '~t~ of ~fio~ however, is w~ted. ~ not invite ~ in~ ~' on ~ly pl~ing effo~s in the ~o-of listing ~ "s~ld~.' Be ~ When ~y '~nt to help the to~.' ~ey ~e i~ ~pli~ions ~ be a~pt~ .~efore no 1~ oberon ~ m ~ on ~i~ ~ ~~ ~e 1~! pm~ ~d you may find yourmlf pull~ ~em A momofium is esp~i~iy help~ be~re ~pH~om ~me ~ It ~ ~' ~~fing ~e~ ne~s t~n your o~. Such c~p~on ~11 ~ve ~e ~ ~ ~btle. It often gems ~endly. They want to help you "avoid hw zo~ng r~lafions. Ifa mi~' -- w~ch ~ be a veil~ ~t. Inviting ~ to ~e piing ~ble for tel~m sit~ will ~ply t° w~ev~ r~om ~11 ~ pm~e ~. ~ly window into to~ d~ics ~d. give ~em ~ge ~ on. appli~ions just ~om ~e s~ of a me--urn ~ ord~ W avoid ~-~ ~ note of ~ufion: most teleco~u~tions en~mfing real,om. f~ wo~ 'for ~e indust~ ~d so .wo~d have a.~ict of int~t in The FCC Ms ~t om vol~ mo~ ~i~ for wo~ for a ~u~. But ~ere ~e ~mpetent independent en~nee~ ~u~ti~. w~ ~ pm~de what'~e to~ n~s. T~s is where ne~o~ng wi& for obs~on. They ~not be inde~te. o~ to~ ~ ~i~ly help~l: You may be able to find out ~e ~es effo~s W of o~ ~ rare ~n~ ~om other to~ bo~ds. ~ nog ~ 1o~ wi~ a ~mon~. ~e ~e ~ e~ it w ~ mon~ ff n~. ~v~ ~ en~n~ing depmmen~. ~e ~ N~o~ ~ r~~s ~de~ndem ~n~ to mu~cip~iti~.4 ~ for referen~ ~om o~ to~ the individu~ ~ worked for. ~en you ~ntaa ~o~ reft, y~ ~11 Mve found a g01d mine of i~o~tion- not j~t ~t ~e ~n~r you ~e thi~ing a~ut h~ing but ~ about ~e pr~ ~ o~ to~ went ~ou~ ~e l~ns they 1~, ~d ~e piff~ls ~ey en~nter~. ~e o&er impon~t ~pen you will n~ is a la, er who f~fi~ with ~e r~t tele~u~tions ~e law. ~ 1996 when ~e Tel~m Act ~ p~ ve~ little such ~e law e~st~' re~ng wh~e ~ t~olo~ interns with ~e rights of 1~ govern. T~ay, ~at . + On~ a mo~fium is ~ pla~, ~ ~~ ~ ~ q~ ~ law is a~mulating. Many impoR~t d~isio~ in f~e~ ~u~ b~k ~ on ~e bylaws you ~1 be dr~ng. 1~ d~ision-~ing ~wers. The t°~'s municip~ attorney may not be f~ili~ with ~e implications of these decisions. ORe~ ~e mu~cip~ H~Do YoU~?. auomey d~fines ~s or her mandate ~ avoiding law,its for ~e to~ ~d ~y ~ the path of l~t resist~. But, this not ~e b~t ~se of " It helps to define yo~ go~s up ~ont: a~on ~ ~ p~cul~ issue. To~s n~d not roll over for ~e tel~m indu~. · u What ~e we ~ng to ~mplish7 + ~ Is o~ go~ to pl~ ~ciliti~ ~ s~ific lo~io~? ~ ~ ~'~ Flor ~t~. " CELL TOWERS 194 o For how many carriers do we anticipate needing to provide service? o What is the infrastru~re already in place -- here and in neighboring *' .s~_~is_!s- .n~ot the a,ver,.ag.e.three, bedroom colonial house proposed for a communities? ' , ,~;~,u~ut~a~ pto~ or.a suo..mwston request, ca Am ther~ areas you really want to avoid -- scenic ridgelines, other * · ~reat Barrington, Massachusetts, was one of the first communities ' In the country to incorporate the requirement for such RF engineering vulnerable areas? ~ detail, as well as thorough monitoring, and proof of liability coverage for c~ Am there appropriate and acceptable town-owned sites where the'town could gain some revenue? the town, into zoning regulations. (Numerous communities across the o How nrc you going to handle the NIMBY phenomenonV Are we the ~ country have subsequently 'used this model, with various adaptations.) It ~Y phenomenon? ' - set the bar for telecom siting regulation at a .new high for. a local ca 'How have neighboring communities fared in their dealings with the ' municipality'7 carriers? ~, Great Barrington is located in the southern Berkshire Mountains of o Do we need a whole new bylaw, or a revamp of the existing bylaws7 + Massachusetts. The area is scenic and laden with historic assets to protect Its economy is heavily dependent on tourism dollars. InaPPropriately: a Is there a process for input from citizens and from experts into the end + placed telecom towers are seen as a direct threat to the local eCOnomy and product? Who has control over that process7 Is that Board or person on your side? the underlying aesthetic sensibilities of the community. + The following bylaw was written while the town and some private a ~ sides are likely to be drawn up during this procesS? Who is likely to be opposing whom? citizens were involved in a court case, appealing a special permit for a + cellular tower on a private schoOl campus near a residential neighborhood. ca Do you have a consensus about these and other questions as you start? (ARer six years, the case was won by the town.) Or are you going to have to work out these issues 'as you go forward? ca Is an application already pending? ~ The following Great Barrington bylaw, with italicized comments, ca Are the necessary experts in place? Are you going to be.using the town g is fourteen pages long. Some towns have expanded it to 30-40 pages:' The attorney for lesal advice as you proceed? What is that person's -' point is to be thorough and adapt it to your town's needs. Note that it is I written to conform with both Great Barrington existing 'bylaws (so the orientation on this subject? Are they up t° speed on wireless numbering is Specific to Great Barrington) and with Massachusetts law. telec~mmunicaiiions issues and case law?' If not can they consult with another finn that is? ' I Any adaptations must be consistent with your own state. The basic attitude you take into the process will often determine what you get out of it. The more professional you are, the better. ' Understand that, =cordia8 to the Telecom Act, you may have to allow +' these facilities somewhere. You are trying to' balance the best interests of your community with those of the telecommunications providers. The best way to accomplish that balance is to create a stringent, thomush,.and fair bylaw to locate wireless facilities that will be adequate for the carrie~s, and have the least detximental impact pOssible. ~ Good Telecom Regulations + As mentioned before, this is a different kind of land-use regulation 7 The Great Batrington regulations effect many of thc same provisions used by the mn most planners or zoners are familiar with. It requires a lot of Connecticut Stung Council - a state agency With vastly greater resources - in reviewing ngineering detail for wireless energy ~ something invisible that exists in telecom proposals. s See Appendix D, for fl~e regulations of Cabot, VT. CELL TOWERS CELL TOWERS Gzeat l~rdngtonPetsonal W'weless Service Facilities and Tmvers B~Lmv Services; b) tboy are not intended to bo used to um'ea~nably discriminate among providers of functionally equivalent Services; 171- 120.Purposes: c) they. do not regulate Personal Wireless Service~ on. tbe basis of Tho purposes of 'this Personal Wireless Service Facilities and the environmental effects of radio frequency emi:k~ions to the Towers Article are to:. ' extent that the regulated Services and Facilities comply with the A. Preserve the. character and appearance of the Town while FCC's regulations concerning such emissions. simultaneOusly allowing Adequate Personal Wireless Services to be developed. This language allOws the SPGA to demonstrate that. B. Protect the scenic, historic, environmental, and natural or man- they were cognizant of the federal las, and are made resources of the community, striving to comply with it. C. Provide standards and requirements for regulation, placement, construction, monitOring, design, modification and removal of Ill § 171-122, Defhlitions and word usage; Personal Wireless Service Facilities. As used in this Personal Wireless Service Faci_'!_iti__'es Article, the D. Provide a procedural basis'for ~ction within a reasonable following terms shall have the meanings indicated. The word period of time for requests for authorization to place, construCt, "shall'' or "will" indicate mandatory requiremems; "may" is operate or modify Personal Wireless Service Facilities. ' advisory and indicates recommendations which are not mmut~tory. E. Preserve property.values. ACT - The Telecommunications Act of 1996. P.-.-Minimize the total number and height of Towers throughout ADEQUATE COVERAGE - Coverage'is considered to be · the community. "adequate" within that area smTo!mdlo~.o a Base Station ~ G. Locat Towers so that they do not have negative impacts, such the predicted . or measured median field slre~th of az, but not limited: to, attractive nuisance, noise and falling transmitted signal is'greater than -95 dBm- It is acceptable for objects, on the general safety, ' welfare and quality of life of the there to be holes within the area of Adequa~ Covera~ whore · · the signal is less than -95 dBm, as long az tbo ~ re~ains II..Require owners of Towers and Personal Wireless Service strength to greater.than -95 dBm fiuthm' away fi.om tho Facilities to configure them so as t° minimize and mitigate the I Station. For the limited purpose of determining ~ the use adverse visual impact of the Towers and Facilities. : of a Repeater.is n~cessary or desirable, ~ shall be deemed L Require Tower sharing and the clustering of personal Wireless ~ not to be Adequate .Coverage within said holes. Th~ outer Service Facilities Where possible. ".~ boundary of the area of.Adequate Coverage, however, is that · A insof Wo% it your Io io. which tho of Special Permit Granting Authority (SPGA) what it '"~ greater than-95 dBm. is trying to accomplish, and gives it the reasons it ~t The te!elcommunications imtusto, was upset that the needs if' it is going to deny the permit. It also to~n defined its own signal strengtl~ ,Vuc. h a right addresses one of the Telecomm Act issues ~ timely has subseque~y been reserved to the towns and cons. ideration~ upheld in federal case law in Sprint 2~eco'um v. ~llo& It is VERY important that YOU defin~ the 171- 121. Consistency with l~ederai I~w: level of signal strength that is 'adequate. Th~ is an ~ regulations are intended to be consistent with'The .engineering detaiL'DO NOT l. b~l'l~ff, CAR~IFR,V Telecommunications Act of 1996 in that: a) they do not Prohibit or · DEFINE EITHER ADEQUATE COVERAGE OR have the?~rect~ of prohibiting the. provision of Personal Wireless i i~. .... ,4DF,~UATE CAPACITY! You ham the right t~ C~LL TOWERS CELL TOWERS 198 these ~eter$. as long as they are reasonable interference shall be considered when .making this. and do not have the. effect of prohibiting the determination. ¢ztrrlers from providing service. )VOTE: The EMF- Electromagnetic FreqUency Radiation de~tion needs to be updated to the signal strength . FACILITY SITE- A property~ or any part thereot~ which is owned Ira,els that are appropriate for today's equipment or leased by one or more Personal wireless Servic~ Providers and for technol~es that have evolved since this and upon .which one or more Personal Wireless Service was written. Facility(s) and required landscaping are located. FCC - Federal Communications CommiSsion. The Govermnent ADEQUATE CAPACITY . Capacity is considered to be agency responsible for regulating telecommunications in the *adequate* iftbe C,-rade of Service is p.05 or better for at least United States. 50% of the d~y~ in a preceding month, prior to the date of · FCC 96-326 - A Report and Order which sets new'national Application, aa measured using direct traffic, measurement of' Standards for emissions of Radio-Frequency emissions from the Personal 'Wireless Service 'Facility in question, where the' FCC-regulated transmitters. call blocking ia due to frequency contention at the antenna(s). GHZ - Gigahertz: One billion hertz. ANTENNA - A device which is attached to a Tower, or other GRADE 'OF SERVICE - A measure of the percentage of calls ~mcturefortnmamiaing and receiving electromagnetic waves, which are able to connect to the Base Station, during the AVAILABLE SPACE -. The space on a Tower or structure to busiest .hour of the day. Grade' of Service is expressed aa a which Antennas of a Personal Wac, less Service Provider are number, such as p.05 - which means that 95% of callers.will both Structurally Able and Electromagnetically Able to be connect on their first try. A lower number (p.04) indicates a ~ta(~l. · better Grade of Service. BAb~ STAT/ON - The primary .sending and receiving site in a HERTZ ~.' One hertz' is the frequency of an electric or magnetic wirel~ telecommunications network. More than one Base l field which reverses.polarity once each second, or one cycle Station and/or more .than one variety of Personal Wireless per second. Service Provider can be located on a ~ingie Tower or structure. MAJOR MODIFICATION OF AN EXISTING FACILITY - Any - CHANNI~ -The ~'gment of the radiation spectrum from an ! change, or proposed change in power input or output, number Anteana which carries one signal. An Antenna may radiate on k ' of Antennas, change in Antenna type or model, repositioning many Clumnels simultaneously. ~ of Antenna(s), change in number of Channels per Antenna. COMMIYNICATION EQUIPMENT SHELTER - A structure ~ above the maximum number approved under an existing located at a Base Station designed principally to enclose i Special Permit. ~ ~ in connection with Personal~ Wireless Service ~ tran~aissions. ~, MA/OR MODI~CATION OF AN EXISTING TOWER - Any .increase, or proposed increase in dimensions of an existing and dBm - Unit of measure of the power level of an electromagnetic ~ permitted Tower or other structure designed to support signal ~ in decibels referenced to I milliwatt. ; Personal Wireless Service. transmission, receiving and/or ELE~OMAG'2qLrFICALLY ABLE - The determination that the ~ relaying antennas and/or equipment. ~ ~ignai from and to the proposed new Antennas will not ~ ~- Megahertz: One million hertz. significantly interfer0 with the existing signals from and to · ; MONITORING- The measurement, by the use of instruments in other Facilities located on the same Tower or structure as ~ the field, of the radiation from a Site as a whole, or from ~ determined by a qualified professional telecommunications , individual Personal WireleSs Service Facilities, Towers, ~ engineer. The u~ of available technologies to alleviate such ~. Antennas or Repeaters. 1~ ~ TO~ ~ TOWERS 200 MONITORING PROTOCOL - The testing Protocol, initially the SPECIAL PERMIT GRANTING AUTHORITY (SPGA) - The Cobbs Protocol. which is to be used to monitor the emissions Board of Selectmen shall be the SPGA for thi_s Article. fi.om existing and new Personal WireleSs service Facilities STRUCTURALLY ABLE - The determination that a Tower or -.upon adoption of this Article. The SPGA may, as the strucltlre is capable of carrying the load imposed by the .technology changes, .require, by written regulation, the use of proposed new Antennas under all reasonably predictable other testing protocols. A copy of the Monitoring Protocol shall conditions as determined by professional structural engineering be on file with the' Board of Selectmen and the Town Clerk. analysis. MONOPOLE - A sinsle self-supporting vertical pole With. no guy TELEPORT - A facility utilizin8 satellite dishes or,rearer than 2.0 · wire anchors, usually consisting of'a galvanized or other meters in diameter deSigned to uplink to communications unpainted metal, or a wooden pole With below grade satellites for'transmittin8 in the C-Band (4 - 6 (H-Iz).specUum. foundations. TOWER - A lattice structure or framework, or Monopole, that is PERSONAL WIRELESS SERVICES - Commercial Mobile designed to support Personal Wireless Service transmission, Services, unlicensed wireless services, and common carrier receiving and/or relaying antennas and/or equipment. wireleSs exchange access services. TheSe services include: ceHuiar services, personal communications services (PCS), IV § 171 = 123. Exempted Wireless Telecommunications Uses: Specialized M°bileRadi°Services, andPagin8Services. This Article specifically exempts the following wireless PERSONAL .WIRELESS SERVICE 'FACILITY- All equipment telecommunications facilities: police, fire, ambulance and other . (including any Repeaters) with Which a Personal' Wireless emergency dispatch; amateur (ham) radio; citizens band radio; any Service Provider broadCaSts and receives the radio-frequency existing commercial, radio tower;, radio dispatch services for local waveS which carry their services and all locations of said businesseS. No Personal Wireless Service Facility shall be equipment or any pan thereof. This Facility may be sited on considered exempt from this Article. for any reason whether or not one. or more Towers or structure(s) owned'and permitted by said Facility is proposed to share a Tower'or other structure with another owner or entity, such exempt uses, PERSONAL WIRELESS SERVICE PROVIDER - An entity, licensed by the FCC to provide Personal Wireless Services to You don't want to in~erfere with your local individuals°rinstituti°ns' emergency services or antagonize'HAM radio 'RADIATION PROPAGATION STUDIES OR RADIAL PLOTS- operatora But ~oU also don't want Ham operators Computer generated estimates of the radiation emanating from to lease their towers to other carrier& Re, lie Antennas or Repeaters sited .on a specific Tower or structure, dispatch for local businesses is a judgment c~l. The The height above ground, power input and output, frequency Telecom Act only preempts local 'autla~ty for output,, type of antenna, antenna gain, topography of the site ' cellular ~elecommunications service~ Broadca~ and its surrotmdin~s are all taken into account to create these facilities for TI/and radio can still be banned simulations. They are the primary tool for determining whether outright in communffie~ a site will provide Adequat· Coverage for the Personal W'treless Service Facility proposed for that Site.' V § 171 - 124. prOvision of Independent Consultants: RI~F, ATER ' A' small receiver/relay transmitter of not more than A. Upon submission of an Application for a Special Permit under 20 watts output designed to provide service to areas which are this Article, the SPGA shall hire independent consultants not able to receive Adequate Coverage directly from a Base whose services shah be paid for by the Applicant(s) under the Station, ·. /-'-. terms of Selectmen's Policies and Procedures in accosgance · .. . : with Chapter 593 of the Acts of 1989. These Consulta 101 CELL TOWERS CELL TOWERS 202 each be qualified professionals with a record of service to Details of the aPPlication process are specific to municipalities in one of' the. followin8 fields: a) Great Barrington, andwould need to be adaptedto · tele~o~~ona engineering, b) structural engin~-rin~ c) fit your local and state requirements. We require monitoring of electromagnetic fields, and, if determined ~ by the SP(}~ d)other consultants, two different Oq~es of permits because the .first carrier, who may build a tower will need to get both B. The SP(3A shall select the Independent Consultant(s) after consultation with the Planning Board, the Board of Health, and a Tower permit and a Facility permit, but subsequent carriers, co-locating on that Tower, the Conservation Commission, which may propose a list of need only get a Facility permit. However, note that. qualified candidates. Major Modifications also require new permits. Bec, m~_se applications for these facilities (when they : B. Adequate Coverage, Adequate Capacity, and Justificati n inchtde eveo~ng they should) are voluminous a,d ~ of Need: tectmiaal, you need to be able to hire independent 1. Applicant shall 'provide 'written documentation of any con~tant(s). The Applicant shouM pay for ~ts, not the Town. This language allows ~. Facility Sites in Great Barring, ton, in abutting towns and that to happen. Again, note the'reference to in Mount Washington, MA, in which it has a legal, or equitable interest, whether by ownership, leasehold or M~ law and change as necessary, otherwise. From each such Facility Site, it shall VI § 171 - 12~ Prohibition of TeleP°rts: demonstrate with written documentation that these FaCility Sites are not already providing, or do not have There shall be no Teleport(s) within the Town of Great Barrington. the potential by adjusting the Site, to provide Adequate. COverage and/or Adequate Capacity to the Town of Great Te~ create a lot of radiation, are not protected Barrington. The documentation shall include, for each in the Telecommunications Act, arut you don't want them anywhere near residential areas. Facility Site listed, the exact location (in longitude and latitude, to degrees, ·minutes and seconds), ground ~11 § 171- 126. Al~iieation Reqnirements: elevation, height of Tower or structtire, type of Antennas,. A. No Tower or Personal Wireless Service Facility shall be Antenna gain, height of Antennas on Tower or structure, output frequency, number of channels, power input and ~ constructed, or installed without first obtaining a maximum power output per channel. Potential Special Permit from the SPGA. One or both of two kinds of Special Permits are required; a) for new Tower construction (or adjustments to these existing Facility 'Sites, including Major Modification Of An Exi~ng Tower); b) for Personal changes in Antenna type, orientation, gain, height or Wireless Service Facilities (or Major Modification Of An power output shall be specified. Radial Plots from 'each of these Facility Sites, as they exist, and with adjustments as F_zdsting t~acility), to be mounted on an existing, or newly above, shall be provided as part of the Appiicatio~ permitted, Tower or structure. If Applicant is applying for both 2. Applicant shall demonstrate with written documentation Permits, they shall be submitted and examined concurrently. Appli~ shall .be submitted using the Long Form that they have examined all Facility Sites located in Great Barrington, in abutting towns and in Mount Washington, Application (SP-2), in accordance with. the requirements of ~ Atl~e X of the Bylaw. The following additional information MA, in which Applicant has no legal or equitabl interest, ,o whether by ownerzhip, leasehold or. otherwise to to must also be submitted: determine whether those.existing Facility Sites can be used to provide Adequate Coverage and/or 203 CELL TOWERS CELL TOWER$ 2O4 Capacity to tho Town of Great Barrington. The docmncntafion 'shall include, for each. Facility Site The purpose of this section is to require the cringers examined, the exact location (in longitude and latitude, to to show what they can already provide and to degrees, minutes and seconds)~ ground elevation, height demonstrate conclusively that they need the new of Tower or structure, type of Antennas proposed, facility they are applying for. It may be that they proposed Antenna gain, height of proposed Antennas on want the new facility (because it may produce Tower or structure, proposed output fi'equency, proposed income for them as they rent out space on the new number of channels, proposed power input and proposed tower to other competitors), intt they may be .able to maximum power output per channel. Radial Plots from Provide completely adeqUate coverage from an each of'these Facility Sites, as proposed, shall be existing tower (on which they wouM be paying .... provided as part of the Application.. .rent). In this circumstance, the town is not rextuired .3. Applicant shall demonstrate with written documentation to allow a new tower, but couM insist tt~t the that they have analyzed the feasibility of Repeaters in carrier co-locate on the existing tower. conjunction with all Facility Sites listed in. compliance with VJI,B,I&2 (above) to provide Adequate Coverage C. Required Documentation: and/or Adequate Capacity to the Town of Great 1. Copies of all submittals and showings perteini~ to: FCC. .Barriagton. Radial Plots of all Repeaters considered for licensing; Environmental Impact ,Statemei~ use ia conjunction with these Facility Sites shall be of Construction or Alteration; Aeronautical Studies; and, provided as part of the Application. all data, asaunptions and calodations relating.to service 4. .Notwithstandin$ anything else in this §t71-126.B coverage and power levels regardless of whether (entitled "Adequate Coverage, Adequate Capacity, and categorical exemption from Routine Environmental Justification of Need"), Applicant may request that the Evaluation uader the FCC roles is claimed. requirement to provide written documentation as to any existing Facility Site (as specified in §171-126.B. 1 and It is very important to obtaitt all the data §171-126.B.2) be waived or modified as to any such : you need from the carricrl The following existing Facility Site outside the Town of Great sections spell this out in detail. Batriagton .which is located more than four miles from any boundary of the Town of Great Barrington. Such a 2. Copies of all information submitted in compliance with request shall be submitted by the Applicant..in writing and requirements of Massachusetts Depamn0nt of Public shall be supported by a statement of reasons and Health, 1'05 CMR 122 Fixed Facilities .Which Generate supporting material.. The SPGA may waive or modify ELF, CTROMAONETIC: FIELDS IN THE FREQUENCY RANOE OF said requirement only if it finds that consideration of the 300 KHz TO 100 GHz AND MICROWAVE OVENS, or any docmnentation regarding any such existing Facility Site revisions thereof as the Department of Public Health may, as to Which the Applicant seeks a waiver is not necessary by written notice, create. because the intended technology is clearly not technically feasible for use at said site. The SPGA's finding as to the This is a ~tts regulation, but there may waiver request shall be based on ali the evidence, which- ' be something sitnilar inyour state. Chec~ with your may include but is not !!re_ired to: then-cun'ent industry State's Health Department to see. standard~..goV°mment regulatory .sl~andard~ or material~, · ,,"~xnd input from the SPGA's Independent Consultant. ~ 3. The exact legal name,, address or principal p~ · of 20.$ CELL TOWEP,~ CELL TOWEP-.S 206 ' busine3s and .phone number of the AppliCant.' If any You will wa, t this lattguageifyott are ettcouragi/tg APplicant is not a natural person, it shall also give the co-l°Catiott. Some bylaws itt fowl's where the vistta! stat under wt~h ~,~ a~ated ororgan d, impact is a high priority use the Overlay District 4. The name, title, address and phone number of the person approach {see the ettd of this bylaw] .~td require to whOm correspondence or communications in regard to towers to be camouflaged a~M as Iow #t height as · the application are tO be sent. Notice, orders' and other possible. They do not i, clude this tang~tage, si, ce oapors may be served upon the person so named, and co-location ge!terally increases 'the ,ecessary such service shall be deemed to be service upon the height of a tower. 5. Name, address~ phone number, and written consent to 2. . If Applicant is' not simultaneously applying for a perSOnal apply' for this"permit, of the owner of the property on Wireless Service Facilities Special Permit, it shall which the proposed Tower shall be located, or of' the provide a copy of its'existing lease/contract with a owner(s) of the Tower or structure on which the proposed Personal Wireless Service Provider. A Tower Facility shall be located. Construction Special Permit shall not be granted for a ~. Details of proposed method of financial surety as Tower to be built on sPeCUlation.' required in §171-131. · 7. Required Plans and engineering plans, prepared, stamped /t is important/tOt to allow towers tO be built itt the and signed by a Professional.. Engineer licensed to hopes that a service provider will come. On~v allow I:n'a~'~ in 1Massachusetts. (Note:. survey plans should a tower if the applica,t is a service provider. The also be stamped and signed by a Professional Land Telecomm Act preempts local zoning forservice $~r registered in Massachusetts.) Plans shall be on providers m ,ot tower builders/ Some towns 24" x 36" sheets, on as many sheets as necessary, and at .require that the tower owner, service provider, aztd scales which are no smaller (i.e. no less precise) than la, dow, er--all of whom may be different entities listed below, and which show the'following information: ~ be signatories to, ~ld responsible, for a~i a. Each plan sheet shall have a title block application, otherwise the application is incomplete indicating the project title, sheet title, sheet attdcatt be ttt~teddowtt..dH share'liability. This is number, date, revision dates, scale(s), and original one way to stop towers lndlt o~t specttlatio~t. seal and signature of the P.E. and other professionals who prepared the plan. 3. The following plans and maps: a. Location Map: 'Copy of a portion of' the most recent D. ltos'ntnv Trover constrnction, or Major Modification Of An U.S.G.S..Quadrangie map, at a scale of 1:25,000, Kxisting To,vet, a Tower Constrnetion Special Permit is and showing'the area within at least two miles from mqni~ed, the proposed tower site. Indicate the Tower location 1. Applicant. shall provide a written, irrevocable com- and the exact Latitude and LongitUde (degrees, mitment valid'for the duration of the. existence of the minutes and seconds).. Tower, to rent or lease Available Space for co-location on b. Vicinity Map at a scale of 1" --- 200' (1:2400) with. ~ the Tower at 'fair-market prices and terms, without contour intervals no greater than 10 feet (3 meter) ~ discrimination to other Personal Wireless Service showing the entire vicinity within a 2000' radius of · '- Providers. ' the Tower site, and including the topography, public and private roads and driveways, .buildings and 207 CELL TOWERS CELL TOWERS 208 structures; bodies .of' Water, wetlands, landscape structures to'those boundaries; and dim nsions features, historic sites, habitats for endangered o£allproposedimprovem nts. species. Indicate the proPerty lines of. the proPOsed ii. Indicate proposed spot elevations at the base · Tower Site Parcel and ot~ all abutters within 300' of of. the proposed Tower and at th~ base of any 'the Tower Site Parcel, (from assessors maps or 'guy. ~ and the comers of all appurtenant available surveys). 'InClude the names of all abutters structures. within 300' of the Tower Site Parcel. Indicate any iii. Proposed utilities, including distance from access easement or right of.way needed for access source of power, sizes of Service availabi and " from a public way to the Tower, and the names of required, locations of any proposed utility or · all abUtters or..propeny Owners along the access communication lines, and whether easement Or who-have deeded rights to the underground orabovegrO.und. easement. 'iv. .Limits of areas where vegetation is to be c. Existing Conditions. Plan: A recent survey of the cleared or altered, and justification for any Tower Site at a scale no smaller than 1" = 40' such clearing or alteration. (1:480 or metric equivalent 1:500) with topography v. Any direct or indirect wetlands alteration drawn with a minimum' of 2' (0,6 meter) contour proposed. intervals, showing existing utilities, property lines, ~ vi. Detailed plans for drainage of surface and/or existing buildings or structures, stone walls or fence sub-surface watec, plans to control erosion and lines~ wooded areas, individual trees with diameters sedimentation both during consUuction and as 8renter than 12" Within a 200' radius from the base a permanent measure. of thc proposed. Tower (labelled with their current vii.' Plans indicating locations and specifics of heights). Show the boundary of any wetlands or proposed .screening, landscaping, ground floodplains or watercourses, and' of any bodies of cover, fencing, etc; any exterior fighting or water included in the Watershed Protection District signs. within 200' from the Tower or any related facilities viii. Plans ofpropesed access driveway or roadway '~ or access Ways or appurtenances; The survey plan and parking area at the Tower Site. Include must have been completed on the ground, by a grading, drainage, travelled widtK Include a Professional Land Surveyor,. within two years prior cross section of the access drive indicating the to the appllcation date. width, depth of gravel, paving or surfa~ d. Proposed Site Plans: Proposed Facility Site layout, materials. ' - grading and utilities at the same scale or larger than the Existing Conditions Plan. e. Proposed Tower and Appurtenances: i. ~Proposed Tower location and any i. Plans, elevations, sections and details at appurtenances, .including supports and guy appropriate scales but no smaller than 1' - wires, if any, and any accessory building 10'. ~Communication Equipment Shelter orother), ii. Two cross sections through proposed Tower · Indicate property boundaries and setback drawn at right anBles to each other, and · die, aces to the base(s) of the Tower and to showing the ground profile to at least 100 feet .~-~ the nearest comers of each of the appurtenant beyond tim limit of clearing, and sho~ip8 any · ~ .. guy wires or supports. Dime~ ~ the 200 CI~LL TOWlmS CELL TOWIm5 210 proposed height of tower above average ~rade beginning at True North and continuing clod- at T wer Base. Show all .proposed antennas, wise at forty-five de~0'ee intervals. including their location on the Tower. ii. A plan map of a circle of two (2) miles radiu~ iii. Detsils of proposed Tower foundation, of the Facility Site on which any visibility of including cross sections and details. Show all the proposed Tower from a public way shall ground attachments, specifications for anchOr be indicated. bolts and other anchoring hardware, iii. Applicant shall utilize · the U.S.G.S. iv. Detail proposed exterior finish of the Tower. Quadrangle maP, at a scale of 1:25,000, and v. Indicate relative height of the Tower to the submit profile drawings on a horizontal scale tops. of surrounding trees as they presently of 1"= 400', with a vertical scale of 1"= 40'. exist, and the height to which they are Trees shall be shown at existing heights and at expected to grow in ten years, projected heights in ten years. vi. mustration of the modular structure of the h. Balloon Test: proposed Tower indicating the heights of Within 35 days of submitting an Application, sections which coUld be removed or added in Applicant shall arrange to fly, or raise upon a the future to adapt to changing'corn- temporary mast, a three-foot diameter .brightly munications conditions or demands, colored balloon at the maximum height and at th ' vii..A Structural Professional Engineer's written location of the proposed Tower. The dates, descripti°n of the proposed Tower structure (including a second date, in case of poor visibility . and its capacity to support additional on the initial date), times, and location of this Antennas or other communications facilities at balloon test Shall be advertised, by the Applicant, at different heights and the ability of the Tower 7 and 14 days in advance of the first test dat in a to bo shortened if future communications newspaper with a general circulation in the Town of facilities no longer require the original height. Great Barrington. The Applicant shall inform the viii. A description of Available Space on the SPGA and the Planning Board, in writing, of the tower, providing illusi~afions and examples of dates and times of the test, at least 14 days in the type and number of Personal Wireless advance. The balloon shall be flown for at least four Service Facilities which could be mounted on consecutive hours sometime between 9:00 am and the structure. 5:00 pm of the dates chosen. f. Proposed Communications Equipment Shdter:. L Floor Plans, elevations and cross sections at a . Balloon Tests are an effective way to visualize the scale of no smaller that 1/4" = 1' (1:48) of any Tower's height attd impact. But the test must be run proposed appurtenant structure, whet~ people are aware of it attd whett the balloons ii. Representative elevation views, indicating the can be seen! .root~ facades~ doors and other exterior apPearance and materials. E. For stew Personal Wireless Service 'Facility, or Major ~ ~r Sight Line~:. . Modification f An Existing Facility, a Pers nai Wirel~s i i. A minimum ofeighf (8) view lines in a zero (0) to Service Facility Special Permit is required. o, two (2) mile radius from the site, shown 1.The following Plans.and maPs: . ' a. Location Map: Copy of a portion of ~e. most ' · .211 CELL 'lOWERS ~ TOWERS 212 recent U.S.G.S .Quadrangle map, at a scale of and Longitude. 1.'.25,000, .and .showing the area within at least two m. Mounting locations on Tower or structur~ · · miles fi-om the proposed Facility Site. Indicate the including height above ground. location of the proposed Personal Wireless Service iv. ' Anteama type(s), manufacturer(s), model FacilitY, .or of.the Facility undergoing Major number(s). Modification, and the exact Latitude and Longitude v. For each Antenna, the Antenna gain and (degrees, minutes and seconds).' Antenna radiation pattern. b. Proposed Facility Plan: A recent survey of the vi. Number of channels per Anteama, projected Facility Site at a scale, no smaller than 1" = 40' and maximum (1:480 or metric equivalent 1:500) showing: vii. Power input to the Antenna(s). i. Horizontal and radial, distances of Antenna(s) to viii. Power output, in normal us~ and at maximum nearest point on property line. - output for each Antenna and all Antennas as ii. Horizontal and radial distances of Antenna(s) an aggregate. to nearest dwelling unit. ix. Output frequency of the Transmitter(s). iii: Proposed utilities, including distance from Souroeofpower, sizes of service available and This inforn~tjon is critical as it gives your required,, locations of any propo~xl utility or independent consultant the irfformation needed lo communication lines, and whether assess the coverage and to generate a Radial Plot underground or above ground, to determine whether the information being iv. Any changes to be made to the e0dsting provided by the currier is accurate aod cotnple~. Facility's landscaping, screening, fencing, Do not be tempted to jettison the engineering detail lighting, drainage, wetlands, grading, just becamse it is technical,..or because you do not . driveWays or roadways, parking, or other understand the meaning of the term~ It is not infi-as~ct~e as a result of. this proposed necesmw),for laypeople to under~mw.h detail. If MOdification of the Facility. this detail is not required in tl~ applic~on, the .-c. .Proposed Communiemtions Equipment Shelter: it~__;.stry does not have to provide it. Your engin~r i. Floor Plans, elevations and ero~S sections at a will then.be working with incomplete informatior~ scale of no smaller that 1/4" = 1' (1:48) of any proposed appurtenant structure. · VIII § 171 - 127. General Requirementm ii. Repro~entatj.'ve elevation vieW~, indicating the A. New Towers shall be set back at least one (1) time tho height of · root~ facades, doors and other e~terior the Tower, plus $0', from all boundaries of the'Site on which appearance and materials, the Tower is located. .d. Propo.~d Equipment Plan: . B. ff the Facility or Tower Site is in a wooded area, a vegetated i. plans, . elevations, sections and details at buffer strip of undisturbed tree~ shall bo retained'for atleazt 50 appropriate scales but no smaller than 1" = feet in width around the entire perimv~.,r ~raT~pt where the 10'. - ace, s drive is located. Applicarm fl~l obtain a finamial ~ur~ty ii. Number of Antennas and Repeaters, as well as to cover tho cost of tho rom0diation of any damage to'the .... tim exact locations, of Antenna(s) and of all landscapowhichoeeur~ duringthe ¢lmringofthe Site. ,. Repe, aters (if any) located on a map as well as C. Fearing and Signs: Tho ~ around tho Toji~r and ~- by degree, minute, z, and second~ of Latitude .... i Co~municaRion F, quipmeaR Shdt~s) ~ bo ¢ ~letoly 213 CELL TOWERS CELL TOWERS 214 fenced for security to a height of six feet and gated. Use of razor Wire is not permitted. A sign no greater than two (2) Whe. this regulation was written, Great Barri.gtou ~lUare feet indicating the name of'the facility owner(s) and a is hopi.g for just one ('ugly) tower, but other towns 24-hour emergency telephone number shall be posted adjacent (especially where they have used the overlay district to tho entry gate. In addition, No Trespassing or other warning approach) w~tt multiple, smaller 'and less ~ may be poated on the fence, conspicuous towers. U..fortunately with the advent D. Communication Equipment Shelters and Accessory Buildings of the digital PCS systems, which are higher shall be designed to be architecturally similar and compatible freque.cy a~td therefore lower power, malty more with each other, and shall be no more than 12 feet high. The installatio.s may be required. PCS claims to .ced buildings shall be Used only for the housing of equipment atttennas every 1-5 miles apart. related to this particular site. Whenever possible, the buildings ~ be joined or cius~,~n~ so as to appear as one building. H. The use of Repeaters to assure Adequate Coverage, or to fill' E. New Tower~ shall not exceed the minimum height necessary to holes within areas of otherwise Adequate Coverage, while provide Adequate Coverage for the Personal WirelesS Service minimizing the number of required Towers is permitted and Facilities proposed for use on the Tower..Applicant may encouraged, An Applicant who has' received a Personal · zubmit a requeat for additional height to accommodate future Wireless Service Facility Special Permit under this. Article, abating, and shall provide design information to justify such may, with at least 30 days written notice to the SPGA, the' additional height. Planning Board, Board of Health, Conservation CommiSSion, Building Inspector and Town Clerk, install one or more additional Repeaters by right. Site Plan Review before the' Some towns place a maximum tower height number Planning Board shall 'be required. The Planning Board shall in this area, based ot't the RF F~tgineer's analysis publish written notice of the public meeting date at least 14 and the vegetation in the area where, the tower is days in advance. Applicants shall detail the number, location, propose& The tower may be allowed to be fifteen pow. er output, 'and coverage of any proposed Repeaters in their or so .feet above surrounding growth, for instance, systems and ·provide engineering data to justify their use.. Also, because towers fail bt various ways w meaning, they don't just break at the base and fall Repeaters may be a use. fid tool to allow a carrier to neatly over w many towns require larger fall zones, use att existi.g tower sittce they cart help fill holes sometimes ttp to four-times the height of the tower, itt the coverage area. Great Barrington decided to ~ontower-failure modeling, allow them by right -- no Special Permit is required, as a "carrot" to encourage their use. F. Tower Finish: blew Tower(s) shall 'have a galvanized finish Other towns require full permitting. Because unlezs otherwiae required. The SPGA may require the repeaters are still RF generating sources, towns Towe~s) to be painted or otherwise camouflaged to minimize vary ht how high they allow them to be, at~ how the adve~ viglal impact, close they will allow thereto dwellings~ ~3. Towns). muzt be of a type which will maximize P°tenfial ' H ~utring. Lattice type structures are preferred, but where a I. If primary coverage (greater than 50%)from'proposed Personal ? Monopole is requested, Applicant must demonstrate the future Wireless Service Facility is outsid Great Barrington, then oo utility of ~ue.,h ~uctta'o for expansion of service for Applicant permit may be denied unless the Applicant can show that they 215 CELL TOWERS C~!-L TOW-I/RS 216 are Unable to locate within the Town which is primarily services. 'These distances are justifiable by receiving service from the proposed. Facility. reference to the opening 'Purposes' (especially I: If your town is being used to provide service to primarily on attractive nuisance. Bttt attother town, get the carrier to go to the other (below} that we are also mentioning that we are town! Regional approaches, where there is a taking radiation into account in case emissiOnS t~egional master platt for wireless telecom, exceed FCC_euide[ines. munications would be ideal, but they are rare. Most towns keep their fingers crossed that towers "won't 2. No Repeater shall be located closer than 50' to an existing happen to them." Few towns cooperate with each Dwelling Unit, nor less than 25' above ground. other for a regional approach. Until then, your 3. Within any of the following prohibited areas: ' obligation is toyour own town. a. Mas~achuse~ or federailyregulated wetland; b. A Massachusetts Certified Vernal Pool; J. Commercial advertising shall not be allowed on any Antenna, ¢. The habitat of any State-listed Rare or Endangered Tower, or Accessory Building or Communication Equipment Wildlife or Rare Plant Speciea; Shelter. d. Within 100' horizoatally-from any Massac~ IC Unless-required by the Federal Aviation Administration, no regulated wetland; "night lighting of ToWers, or the Personal Wireless Service e. Withi~ tho 200' ho. rizontally of the Outer Riparian Zone Facility, is permitted, except for manually operated emergency · measured horizontally from any river or perennial lights for use only when operating personnel are on site. stream; L. · No Tower or Personal Wireless Service Facility that would be f. Within 500' horizontally from any Hi,eric District or classified as a hazard to air navigation, as defined by the propmy listed .or .eligible to be listed on the stat._.e or Federal AviatiOn regulations (Title 14 CFR) is permitted, federal l;h~gister of Historic Places; M. No ToWer or Personal Wireless' Service Facility with the g. Within 500' horizontally from any known '" exception of Repeaters shall be located: archaeological site; l. a. Closer'than 1500', on a horizontal plane, to any N. Parameters of appropriate, siting: structure, existing at the time of Application, which is, .1. Towers and Personal 'Wireless Service Facilities ahab be or is able to be, occupied or habitable, on the property located so as to minimize tho following potential of any ~hool (both public and private), impacts: b. Closer than 750', on a horizontal plane, to an existing a. Visual/Aesthetic: Tower~ shall, when possible, b~ sited Dwelling Unit, or, day-care center, hospital, nursing off ridgelineS, and where their visual impact is least home, church, synagogue or other place of worship. . detrimental to highly'rated scenic areas.~ b. Diminution of residential property values: Siting shall These setbacks are the teeth 0£ this bylaw -- telling b~ in as low population density areas as possible. where a tower or facility may go.itt r¢latiOtt to other c. Saf©ty: In ca~s of suuotural failure and attractive Uses. l/Ye checked by doing radial plots and found nuisance. · that there were still areas itt towtt where a carrier · could locate attcl have adequate coverage, before _ ~ we set out these distances, Otherwise we might · /-"~,,e "had the effect of prohibiting" the provision of 217 CELL TOWERS CELL TOWEES 218 d. Saf'ety ~rotn excessive 'electromagnetic radiation.' In B. In addition to the findings required by the Bylaw in Section case the Tower or Personal .Wireless Service Facilit~ is 171-45, the SPGA shall, in consultation with. the Independent ~xmnd to e~ceed the FCC guidelines. ConsultantO), make all of' the applicable findings before 2. The foil wing locations are ranked in orde~ of'preference: granting the Special Permit, as f'ollows: a. Shared use of' existing Personal Wireless Service 1. That Applicant is not already providing Adequate Coverage Fac. ilitiesshall be encouraged, and/or Adequate Capacity to the Town of Great b. Clustering of Towers: Applications for Towers adjacent Barrington; and to Existing Towers shah be encouraged. 2. That'Applicant is not able to use .Existing Towers/Facility c. The use of municipal lands which comply with other Sites either with or without the use of Repeaters to requirements of this Article, and where visual impact provide Adequate Coverage and/or Adequate Capacity can be minimized and mitigated, shall be encouraged, to the Town of Great Barrington; and d. The use of Repeaters to provide Adequate Coverage 3. That the Applicant has agreed to rent or lease. Available without requiring new Tower(s) shall be encouraged. Space on the Tower, under the terms of a fair-market e. The use of land, distant from higher density residential lease, without discrimination to other Personal Wireless properties, and where visual impact can be minimized Service Providers; and shall be encouraged. 4. That proposed Personal Wireless Service Facility or Tower 3. Towers and Personal Wh'eless Service Facilities shall be will not have an undue adverse impact on historic located so as to provide Adequate COverage and resources, scenic views, residential property values~ Adequate Capacity with the least number-of Towers natural or man=made resources; and and Antennas which is technically and economically 5. That the Applicant has agreed to implement all reasonable feasible, measures to mitigate the potential' adverse impacts of 4. The SPGA shall request input fi.om the Chiefs (or their the facilities; and designees) of Fire, Police and other Emergency services 6. That the proposal shall comply with FCC Reg 96-326 regarding the adequacy for emergency access of the regarding emissions of electromagnetic radiation and planned drive or roadway to the site. that the required Monitoring program is in place and IX § 171 - 128, li'.valnation by Independent ConsUltants. shall be paid for by the Applicant; and A. Upon submission of a complete Application for a Special These findings create the basis for approval or denial. If Permit under this Article, the SPGA shall provide its the application does not comply with the requirements of Independent Consultant(s) with the full Application for their the bylaw, crud the SPG,4 can include that determination in analy~ and review, a written recora~ it has a good chance of prevailing in a B~ ApPlicants for any Special Permit under this Article Shall denittl of the,4pplicatio,. obtain permission from the Owner(s) of the proposed pr0peqy(s) .or Facilities Site(s) for the Town's Independent C. Any' decision by the SPGA to deny an Application for a Consultant(s), to conduct any necessary site visit(s). Special Permit under this Article shall be in conformance with .SEC. 332 [47 U.S.C. 332] (7)(BXiii) of the Act, in that it shall X § 171 - I29. Approval Criteria: be .in writing .and supported by substantial evidence contained A. In acting on the Special Permit Application, the SPGA shall in a written record. proceed in accordance with the procedures and timelines established for Special Permits in Article X ofthe Bylaw. 21~ CELL TOWERS CELL TOWE1LS 220 XI § 171- 130. Monit ring andEvaluation fCompliance: of non-compliance. Failure to accomplish this reduction of A. Pre-testing: After the granting of a Special Permit and before emission within 15 business days of initial notification of non- Applicant's Personal Wireless Service ~Facilities begin compliaacx shall be a violation of tho Stm:ial Permit and transmission, the applicant shall pay for an Independent subject to penalties and fines as specified in Article Xll, §171- Consultant, hired by the Town, to Monitor the background' 65 of tho Bylaw. Such fines shall be payable by tho owner(O of levels of EMF radiation, around the proposed 'Facility Site ,, the Facilities with Antennas on the Facility Site, until and/or any Repeater locations to be utilized for Applicant's compliance is achieved.. Personal Wireless Service Facilities. The Independent D. Structural. Inspection: Tower Owner(s) shall pay for an · Consultant shall use the Monitoring Protocol. A report of the Ia. dependent Consultant (a licensed profe~onal structural Monitoring results shall be prepared by the Independent engineer), hired by the Town, to conduct inspections of the · Consultant and submitted to the Board' of Selectmen, the Tower's structural integrity and safety. Guyed towers shall be Planning Board, the Board of Health, the Town Engineer, the inspected every three years. Monopoles and non-guyed latti~ · Building Inspector and the Town Clerk. towers shall bo inspected every five years. A report of the B. Poet-testing: ARea'transmission begins, the owner(s)of any inspection results shall, be prepared by the Independent Personal Wire, less Service Facility(s) located on any Facility ConSUltant and submitted to the Board of 8zl~n, the Site sha/I pay for aa Independent ~ Consultant, hired by the Planning Board, tho Board of Health, the TOwn Engineer, the Town, to conduct testing and Monitoring of EMF radiation Building InSl~gor, and th~ Town Clerk. Any Major emitted from said Site, and to report results of said Monitoring Modification of Existing Facility which inolude~ chang~ to as follows: Tower dimensions' or antenna numbers or ~ shall require 1. There shall be routine annual Monitoring of emissions by n~w'stmctural inspectiom the Independent Consultant' using actual tield E. Unsafe Structure: Should the inspection of any Tower reveal measurement of radiation, utilizing the Monitoring any stmcmrsl defect(s) which, in the opinion of tho Protocol; This Monitoring shall measure levels of ElVlF Independent Consultant render(s) that Tower unsafe,, the radiation from the Facility Site's primary Antennas as following actions' must be taken. Within 10 business days of well as from Repeatea~ (if any). A report of the notification of unsafe structure, the owner(s) oftho Tower shall Monitoring results shall bo prepared by the Independent submit a plan to re, mediate the structural defoe(s). This plan Consultant and submitted to the Board of Selectmen, shall bo initiated wit~_hin 10 days of tho submission of the tho Planning Board, the Board of Health, the Town remodiation plan, and completed as soon as reasonably Engineer, the Building Inspector, and the Town Clerk~ possible. Failure to accomplish this remediation of structural 2. Any Major Modification of Existing Facility, or tho defect(s) within 10 business days ofinit~ notification shall be activation of any additional permitted~Channels, shall a violation of tho Special Permit and subject to penalties and require new Monitoring. fines as specified in Article XH, §171-65 of the Bylaw. Such C. F.,xee~ive Emis~iens: Should the Monitoring cfa Facility Site fines shall be payable by the owner(s) of 'the Tower, until reveal that the Site exceeds thc FCC 96-326 standard, then the complianc~ is achieved. owner(s) of all Facilitie~ utilizing that Site shall be so notified. Tho owner(s)shall, submit to the SPGA and tho Building Xll .~§ 171- 1~;1. Removal Requirements: lnspe~or a plan for the reduction of emissions t°a level that Any Personal Wireless Service Facility which ceases to operate for · complies with the FCC 96-326 standard within 10. business a period of eno ye, ar shall be removed. Ce, as~ to citrate i~ defined · .days of notification of noncompliance. That plan shall miu~' as not porfo _rro__i_ng the normal functions associated with tho · ~,-~missions to the standard within 15 days of initial notification .9 Personal Wiroless Service Facility and its cquipme~-~On a 221 (71~.I. TOWERS CELL TOWERS 222 contimm~ and ongoing basis for a period of One year.. At tho time ~ Overlay Districts of renmmll, the Facility Site shall be remediated such that all . .. Personal Wh'eless Service Facility improvements which have The advantage of an "overlay district" is that the mUnicipality can ceased to operate are removed. If all Facilities on a Tower. have map out where the facilities can go, and restrict them to those areas. Thus, ceased to operate, the Tower shah also be removed, and the Site the town controls the sites where the carriers can place the facilities. The shall be revegetated. Existing trees shall only be removed if disadvantage is that it may be politically di~cult to come up with sites necessary to complete the required, removal. Applicant shall, as a that don't raise concerns of abutters. condition of the Spe~al Permit, provide a financial surety or other Overlay districts are a proactive approach.' They work less well form of financial guarantee, payable to the Town of Great when a carrier is already considering a site in your community. Under Banington and acceptable to the SPGA,.to cover the cost of such reactive ~ircumstances, overlay districts are often seen as a NIMBY removal of th~ Personal WireleSS Service Facility and the effort by the proponents, and are less likely to be politically acceptable. remedhttion of the landscape, should the Facility cease to operate. But with carefi~l consideration of possible sites, determined with the help of an RF engineer, towns should be able to place the overlay districts .xm § 171 - 132. Fees and Insnranee: where the adverse impacts are as minimal as possible. A. Towers and Personal Wireless Service Facilities shall be If you want to create an overlay district, it needs to be dOne before inmred by the Owner(s) against damage to pemons or pwperty, you write the bylaw. If your zoning bylaw already defines certain districts' The owner(O shall pwvide a Certificate of ~ce to the m and most do, then the definition of the telecommunications overlay ~'s Office on an annual basis in which the. Town of district goes in that section. It has been adequate in the Berkshires to Great Barrington shall be an additional named insured, define the overlay district by reference to the asse,~r's maps and parcel B. A sclledule of fees for Towers and Personal Wireless Service numbers, which~ although not a surveyed definition, is close enough for Facilities ~mitfing and renewal, any Monitoring of emissions the purposes your town will need. mad inspection of structures, and any other fees Shall be It is important to, include in the zo. ning language that the established by the SPOA as provided for in Article X, §171- telecommunications overlay district, is mapped 'over other districts. It 40.B. of the Zoning Bylaw. This schedule may be amended modifies -- and where there .is inconsistency, supersedes -- the regula- from time to time. fions of other districts. Except as so modified or suPerseded,' the regu- lations of the underlying districts remain in effect. This clarifies that the XlV §171- 1~3. Severabillty Clause: overlay district does not result in an overall rezoning of the area affected. The invalidity of any section or provision of this Article shall not invalidate any other section or pwvision hereof. Fihal Thoughts There are many challenges your town will face. as it prepares to use ******** zoning to regulate the location of wireless telecommunications facilities. But with carefi~l and thowugh work, your community can exercise a great deal of control. That is the end of the Great Bardngton by-Iaw. Be aware that the telecommunications industry continues to try, by · a variety of means; to reduce the degree of local control availabl to i.. oommunities across the country. So it is critical to remain vigilant with ~~ to~ed 5oth federal and state regulations and laws. MassaChusetts nearly .c a ztatewide law Iast year that would have allowed a new o . cations facility on existing structures with a simple building C~LL TOWi~RS 223 ' ' st -written law was promoted as community ffiendlyl permit: This md.u ry. J_eA~, s,.,, ~,n v after intensive lobbying by the This law went oown to aetm~, ,,~. .... Ij many folks who have been active in local efforts to retain local control. Tony Blair Former Member of the Planning Board and the Board of Selectmen 17 Round Hill Rd. Great Barfington. MA 01230 Email: TonyBiair~w°rldnet'aa'net IV-lO3 Attachment B Property Devaluation Citations on Prooertv Devaluation of Homes LoCated Near Cell Tower~ 1. Joe Catalano, Similar Houses, Different Prices? It's Time to Look at the *' Externals, Newsday, Mar. l& 1997. 2. Editorial, Control Cell Tower siting, Eugene Register Guard, June 9, 2001. 3.Susan L Martin, Communities and Telecommunications Corporations: Rethinking the Rules for Zoning Variances~ 33 American Business Law Journal 235, n.59, 1995. 4. John F Cahill, An Introduction to the Indoor Pollution Problem, 40 Prac Law ZT, 52, 1994. 5. Daley, 253 Cal. Rptr. lq4. The court discussed the scientific controversy about health risks associated with EMF. The court pointed out that 'several jurisdictions, perhaps a majority, have recognized that buyer fear of potential dangers associated with power lines, electromagnetic radiation in particular, have a depressing effect on the market value of adjacent propertieL The opinion lists literally dozens of Cases which follow this rule. 6. Connor v. City of Univ. Park, 142 S.W. 2d 706, 712 CTex Civ. App. 19qO:) ?. RObert M ·Anderson, American Law of Zoning 35 2.03 (:3~ edition' 1986). 8. Anika M Scott, Cellular Tower Leads to Lower Assessments, Chicago Tribune, Feb 21, 1999. 9. George Brandon, Defending Against EMF Property Devaluation Cases, Public Utilities Fortnightly, Feb 1, 1995 10. The Home Environmental Sourcebook: 50 Environmental Hazards to Avoid When Buying, Selling, or Maintaining a Home. Wireless base stations are included in the list of 50. 11. 1998 American Bar' Association Annual Meeting, Stigmas, Contamination, and the Environment: Their Znfluence on Property Valuation for Tax Purposes. Microwave and cellular towers are included in.the list of stigmas. Aug 3, 1998. 12. Microwave News, A jury in Harris COunty, Texas ordered GTE Wireless to pay a Houston couple with a cellular tower installation 20 feet from their.property line: $720,000 compensation for nuisance and invasion of properly; $225,000 for mental anguish; $28,000 for property devaluatiuon; $230,000 for legal fees · plus interest - for a total of 1.2 million dollars. March/April 1999. IV-lO4 13. Phil Brozynski, Howard Richter and Associates, a 26 year Chicago real estate appraisal firm, found as much as 15% devaluation in a home within 270 feet of a cell tower. Pioneer· Press Barrington Courier Review, 1[28/99. la~. Christine Woodside, "Cell Phone Towers Are Sprouting in Unlikely Places", New York Times, Section l&, 1[9/2000. 15. Allenton PA Real estate ·apPraisal expert testifies at zoning board hearing · that a mobile phone tower would cut property value $50,000. SPrint Spectrum disputes analysis in Springfield Township (PA) case. Residents say they'll keep fighting the construction. Allenton (PA)Morning Call 8[17[01. 16. Reni Gertner, "Towns Can ReJect Cellular Towers,' details aesthetic basis for reJecting towers, property values mentioned. Lawyers Weekly USA, The National Newsletter for Small Firm Lawyers. &/16/O1. 17. Carol C. Mc Donough, PhD Professor of Economics at the University of Massachusetts - Lowell, ~l-he Price of Zoning Revisited: Zoning issues Raised By the Telecommunications ACt of 1996,' Dr. McDonough cites two cases where courts "did not require PROOF that that.the power line posed a health risk, but only that the PERCEPTION of danger led to a drop in property value. The court held that whether the danger is scientifically genuine is irrelevant to the central issue of market value impact.' She also states, "it is certainly possible to infer that transmission towers-impose negative externalities to property values, if not to human health," and "with cell towers still in their infancy, it is far too soon to develop reliable scientific information on health effects." From The Illinois Real Estate Letter, published by the Office of Real Estate Rasearch, University of Illinois at Urbana-Champaign, Winter 1999. 18. Minutes, Vernon Township Zoning Board of AdJustment, 8/29/OO. 19~ Blake Levitt, Cell Towers: Wireless Convenience? Or Environmental Hazard? Numerous sections with details on cases of peoperty devaluation caused by cell towers. 12/2/00. 20. Jeffrey Moerdler, David Bronson, Telecommunications Leases. Acknowledges that installation of rooftop antenna arrays can have an adverse effect on value and marketability of property. Real Estate Finance Review, Winter 1999. 21. Craig Fischer, Deputy city Clerk, Medina, WA. Communication with Cindy Sage regarding impact of wireless facilities on property values. 6/18/o1. CELL~ TOWER LEADS TO LOWER ASSESSMENTS ' · Chicago Tribune; Chicago, Ill.; Feb 21, 1999; Anika M. Scott; Abstract: In what could be a precedent-setting decision, the Lake County Board of Review has confirmed. that property values of homes in a North Barrington neighborhood have declined because ora cellular telephone tower built nearby. Full Text: (Copyright i999 by the Chicago Tribune) Suburban report is a roundup of real estate stories bom throughout metropolitan Chicago. In what could be a precedent-setting decision, the Lake County Board of Review has confirmed that property values of homes in a North Barrington neighborhood have declined because of a cellular telephone tower built nearby. The county upheld a decision to reduce the assessments of 11 properties near Old Barrington and Signal Hill Roads. The decreases ranged ~om 4.6 to 11.2 percent. The decision is a victory of sorts for residents, who say the 150- foot Ameritech cellular tower is "visual pollution." The bigger issue that has municipal leaders closely watching the case is the potential liability of villages that have allowed such towers to .be built. "We're worried about the precedent this could set," said Village President George Larrain. The Northwest Municipal Conference also is concerned. "There are arguments made by communities surrounding O'Hare that property values are hurt by their proximity to the airport," said David Bennett, executive director. "The repercussions.., could go throughout the state, and maybe even the country." Sub--- Title: ' [CHICAGOLAND ~iN 'AL Edition] ............. ' .......... Column Name: Suburban report. Star~ Page: I lQ ISSN: 10856706 Dateline: NORTH BARRINGTON Reproduced with permiSSion of the copyright owner. Further reproduction or distribution is prohibited without permission. IV-lO6 .../000000039139120.html?MAC=0137826bc41 eSadb9939aa78f'/622c21 &QIID"~0000003913f10/14/01 · Control .cell tower siting ' Rural residents deserve p rotection T he cellular telephone industr~ Ifs impossible to insulate any propel- is one of the fastest.~rowing in ty from electronic signals. But it's history -- seemingly overnight, reasonable for property owners to ex. 40 percent of the population has cell pect that cell phone towers will be phones. These phories won't work sited to minimize the stren~,h of sig. without a network of towers to re- nal~ in nearby homes. celve and transmit signals. The towers State Sen, Rick Metzger, D- .are sprouting in rural areas to fill Welches, has sponsored Senate Bill gaps in coverage. Lane County's land. 815, which would allow local govern- use rules need to catch up with this ments to estabUsh setback require- fast-spreading phenomenon, ments for cell towers. The bill is : The Telecommunications Act of stuck in committee, and its prospects 1996 prevents local governments from an' receding, But IJane County banning 'gell towers, ,but the act .needn't wait for the Legislature to · should not be read as allowing the define the scope of its authority. Oth- 'towers to be built anywhere and er- er local governments across the coun- erywhere. The law allows govern- try have already taken step~, .within merits to regulate the general place- the limits of the Telecommunications ment, construction and modification Act, to pre~,ent .inappropriate cell tow- athe towers..The ~un~ should use er siting. '- .[.i..., ~5. ~' . ." :;',.. ' · ~es-~-4~e~-n~a~i~ctio~_Of sugge~d by County Commi~ioner ~map~p~.r.o.p._n.'~at.e.l~s:..._... _. Cindy Weeldreyer,'is a requirement The threat to orooert~ ..~.~-u.u. is~is that cell phone companies "co-locate" r e~phonttn nb setback requirements, their towers -- that is, put the. ir-m- e companies can build towers ceiving and transmitting gear on the nearly on top of property lines. An same mast rather than building thre~ article in last week's Registex.-~._uard [or four. Co-location may not ~ pra~( cited the case of a woman :,.~ho6~.' Cai 'in. ;.a!!.}...instam~ ',' but:it i~l_d: ~ murdty COllege' would be literalS'in towers iff i-ttral areaS.. · the shadow of a. 12~foot cell tower on Cell phone, towe~..may be a temgo:. a neighboring piece of property. The 'rary feature of the lanitscape -- a~ tower would clearly detract from the intermediate' step to satelll~ tele- rural atmosphere that attracted her ¢o phone communication. For now, how- the Seavey Loop are~ "'- ' ever, the towers are becoming ubiqui- In addition to aesthetic oit~dons, tous, and they are especially notable some people living near cell lowers in rural areas wher~ they can't be are .concerned about the health effects hidden on b~tl]dln.t,~ or other 8trtlc. of cell phone signals. These effects are tures. The cellular telephone lnd~ unproven, but the concerns can't sim- lz rtlShtng tO create a network of tow- ply be dismis,~.-- pegple am being ers providing blanket coverage. The made to assume a risk, however small rush should not preclude siting that it may be, that did not exist before, resp~ts property owners' interests. IV-107 Illinois University of Illinois at Udaana-Champaign '-" Real Estate Letter The Price of Zoning Revisited: Zoning Issues Raised bY the Telecommunications Act of 1996 Carol C. McDonough The Telecorranunicntions Act of 1996~ Clevela_n~, is noteworthy because it The 1996 Act was passed following contains provisions that may affect a reinforced the earlier notion Cfa hierar- the somewhat recent development of the municipality's ability to implement chy of land uses - with single-family personal communication services (PCS) zoning regulations. This article briefly residential use at the top of the hierarchy .mode of wireless, corumunication'(PCS summarizes the history and purpose of - to be protected. From an economic ~s a type of digital service). The deVelop- zoning regulalions, discusses the chai- standpoint, municipal zoning regula- ment of PCS, which'offers better sound lunge to local zoning posed by the Tele- tions are meant to.mitigate the negative quality and better security than the older communications Act (along with recent externalities that a real estate owner's use cellular systems, has brought with.it an activities atthe state level and in the of his property might impose on other increased need for tower' si~es on which federal courts), and offers an approach by members of the community, tmnsmit~rs can be placed. PCS is located which municipalities can Optimiz~ their at a higher frequency requiring role in the process of locating sites for Challenges ~o Local Zoning towers that are closer together than the telecommunication towers. Municipalities' longstanding and brOad older cellular tower~ were. The improved power to oversee land use ha~ been called technology is also likely to necessitate TrnditionS of Loesl Control into question as legislative enacunents more towers through increased custom- For the better pan cfa century, land use and judicial rulings have pushed local er demand. It is estimated that, in high control has been largely a local govern- zoners' wishes aside in favor of improved demand areas, PCS tranmnittera will have mental function in our country. The first wireless phone service. One example is to be situated about a mile apart. comprehensive zoning ordinance in the Congress's 1996 passage of the Telecom- The typical municipal zoning ordi- United States was adopted in New York munications Act, which opens doors for a ' nance requires a PCS provider to obtain City in 1916, and other municipalities federal agency ~o overrule local 0fficials a variance or a special permit in order to soon followed. The zoning enabling acts on siting telecommunication towers. The construct a cellular tower. A var/ance is of many states are based on the federal Act (which has no impact on most zoning required when the proposed ~ower would Standard Zoning Enabling Act of 1926. . functions) empowers the Federal Corn- be built in a zoning district that prohibits In the 1926 landmark decision Euclid munications Commission (FCC) to pm- such structures; receipt of a variance v. Ambler Realty Co., the US Supreme erupt local officials' decisions on the usually requires proof of hardship owing Court rejected argument~ that zoning placement, construction, and modifica- to the topography of oiher nearby sites. laws were an unconstitutional depriva- tion of personal wireless service fa¢ili- A specialpermit is required when a cell tion of property without due process, and ties. The FCC is given express regulatory tower is a permitted use of the proposed subsequently many state courts upheld power over wireless facilities' radio fre- locus; the permit indicates that the local the concept of zoning. The Court's deci- quency emissions when concerns arise ity has found lhe proposed tower not to sion, involving a land owner in suburban over possible environmental impacts, be unreasonably detrimental. Of course, under the 1996 Act the FCC can second- Inside This Issue... guess a local decision to deny approval. The FCC seems willing to require aec,ep- ee ~'alue of Zon~ng ~ tance of towers U~at local officials r~ject, ' Prl~e l~pa~ts of In~o~patlble Land Uses ~ though the evidence to date is limi~l. The federal judioi~t also has shown lle G~eate~t Real£state Movle~ of~ill Y'inse 9 a willingness to substitute its vi~ts for Deal~ lll~so'ated 1~ the wishes of local t~,ulato~, alihough it IV-108 Illinois Real Estate Letter Policy Perspectives Winter 1999 - Volume 13, Numbc~ I has not completely gutted local control, in which thc sale of zoning rights can be Illinois J~a/Estate Letter is published by For example, in Sprint Spectrum, L.P.v. revisited, in fact, the FC~ employs a sin~-~ ~ the Office of Rgal Estate Research at the City of Medina (1996), a federal district ilar process for issuing licenses to oper~ University oflllineis st Urbane-Champaign court upheld Medina, WA's six-month PCS systems within the fitly-one major b,p:#www, dsaadue.edu/~rer/~rer-stm tower moratorium as an apPropriate usc trading areas (MTAs), and the 493 b~c Copyxight.1999; Subscriptions $16 per year of the city,s authority to determine a tale- trading areas (BTAs), within which PCS £d#or: Peter ~. Colwell, University of communications policy, and procedures systems are marketed. Since demand by minois at Urbana. Cham.m~gn for processing applications. However, potential.PCS providers typically ~xeceds ' e-m~l:,oa~tsv//~,iuv, eds, in Illinois RS~ No.3 v. County of Peoria the limited supply of llceuses that the i~Lvsoclate EditOr: Joseph W. Trdzger, (1997), another federal district court FCC issues in a particular MT A or BTA, Illinois State University overturned a county's decision denying the FCC auctions off the licensing rights. ~msJl:/sar~edu a plaintiff's request for a cellular tower, It should be pointed out that the fed- d~tant Director. C~rolyn A. Debring ruling that adequate reasons for thc denial eral government is not hypocritical in e-mail: orer~uc.e~ were not given. Stating thatthc mere providing relief fxom local restrictions; ~edia Spgclalig: Shelley A. Cmpbeli ~.msi~ ~a~pbe1~uiu~edu existence of Oppositiun is insufficient to it also makes its own land available to Secretory: $1drley J. Wells support denial, the court directed that thc wireless service providers. The 1996 Act permit be issued, without even remanding · specifies that a federal department or Address conespondence to: Office of Re~l Estate Research to thc county for further decision making, agency must make prolgn~y under its 304-D David Kinley Hail Even the states may be inclined to control available for the placement of the 140'/W. O~gory Drive overrule local officials when wireless new telecommunicatiun services when. Urbane, IL 61801 phone service is the issue. In Massachu- doing so does not directly conflict with Phone: (217) 244-0951 setts, municipalities' zoning authority the department's mission. Yet even then, PAX: (217) 244-9867 has been diluted by thc Massachusetts reasonable fees may be charge~l to PCS eoMall: oreri~uiUc.edu Department of Telecommunications and providers. (The Act also requir~ the FCC ORER Advisory Committee Enorgy's designation of wireless service to provide technical support to states, to Gary L. Cls~ton providers as public service utilities. This encourage them to use pmpe~ under Executive Vice President, Illinois designation exempts thc providers from their jurisdictions for PCS purposes.) Association of Realtors* Ch. 40A, thc State's basic zoning regula- By taking a cue from federal fee- Peter F. Colwell tion, thereby limiting local authority'to collection efforts, and selling zooing Director of Rani Estate Rcsea~h, deny permission for tower construction, permits for PCS transmitter~ municipal~ ORER Professor of Real Estate, and ties wou¥ gain revenues to of~ at Professor of Fimmce~ University of g!!!nois Paying the Freight partially, the cost imposed un municipal at Urbane-Champaign In general, opportunities for relief from residents by any associated negative Cou~le Conway zoning~restrictions - through receiving externalities. Residents would benefit Vice President, Koeaig & St~zy, Inc. a variance or permit, or the overriding from the sale of zoning permits, in David C. E~des actions ora court or a legislative body- that revenues so generated would fund ~ General Partner, Regency can have unexpected side effects,z The Inercased municipal services and/or allow Associates recipient ofzoning relief obtains windfall for reduced taxes. Such a plan contains William ~.. Long economic rent. (a return in excess of that the acknowledgment that perceived Pn:sidcnt and Cldcf Exccativc Officer, called for by the accompanying risks), aesthetic or health problems can bc esso- LaSalle Home Mortgage Corporation because he is able to put his property to elated with towe~s and transmitter~ and Csreg IL Oldbm Director of Commc~cc Research and a usc that had p~viously been proin'bited that residents should be compensated for IBE Dist~goished Professor of Business or controlled. At the same time, despite those negative effects. The price f a per- p, amlni~'wation, University of Illinois the fact that a use is not to be approved mit should be based on the magnitude of at Urbane-Champaign if it would be unreasonably detrimental thc negative exterualities, not on the PC8 Gerald N. Perlow to the neighborhood or municipality, provider's expected profiL The greater Pn~sident,'Pmpmy Valuation Services negative externalities may be suffered by the perceived visual or health derogation, Past P~sident, llliaois Assn. of Realtors* abutters, and by others in. close proximity the higher the amount that should be Eli Sidwell, Jr. to the locus on which local, state, or fed- charged for a permit. (It is assumed that Director of Real Estate, Olficc of Banks oral relief has been granted, thc PCS provider owns, or has lcasod, the and Rani Bstate, State of illinois In the Summer 1991 issue of this land on which the tower is to be builL) Arian IL Speeluum publication? David Mills suggested that, Pr-'~ident, Spe~_~an Realty because of such extemnlifies, resource Measuring the Damages Past Ptesideat, miacis Assn. of Realtors' use would be enhaneed if zoning rights How can the magnitude of the negative Doaald J. urSin were bought and sold, rather than given externalities- aesthetic and health issues Retired President, Coldwell-Baal~r away. The development of PCS and the - associated with towers be estimated? Residential Real Estate Services attendant need for towers creates a forum The aesthetics debate is not easily Past Preside~ nlinois Assn. of Resltors* · page 2 Illinois Real ~stat~ £attar F~nter I PgP IV-lO9 _., ,,, Policy perspectives. r~oived: beauty/s in the beholder's eye, health risk, but only that the perCeption Taking the Initiative · -. and some might argue that towers in fact of danger led to a drop in property value. Residents concerned about PCS towers enhance, rather than detract from, the The court held that Whether the danger is for reasons of aesthetics, health, or municipal panorama's appearance. The scientifically genuine is irrelevant to the property values may oppose tower siting health debate might be hlmo~t as diffi- cenunl issue of market value impact. . on public land under any ciroumstanoes, cult; with cell towers still in their infan- viewing the receipt of money as inappro- cy, it is far too soon to develop reliable The Rental Alternative priate collaboration with PCS providers. scientific information on health effects. Because the PCS operator seeking access However, because the Telecesranunica- Moreover, issues of aesthetics and to a site can posst"oly obtain it by pursu- tions Act of 1996 p~cludes the blanket health intertwine when tower opponents ins federal, state, or judicial remedies, a denial of permission to build ceil towers, argue that ttwers reduce property values, seemingly sens~lc approach for a muni- and because courts and state legislatures Indeed, opponents might disguise con- cipality is simply to make the desired have also supported the industry, it would rems about aesthetics as health concerns, fights available at an appropriate price, seem to be in residents' best interests to because the latter appear less frivolous. As noted curlier, thc municipal sale of participate actively in the process. In fact, Yet whether the dangers arc imagined or zoning rights for cellular tower construe- by offering to lease municipal land for real' opponents* coucems have delayed · ti0n would enable a community, and thus tower siting, a locality would be able to tower approval by many local planning its residents, to be compensated for thc gain some comrol over the process, along boards, and several lawsuits have been negative externalities that may derive with some revenue. Thc rent would corn- brought by residents against municipali- from cell towers' existence. Yet while pensate citizens, at least in part, for any negative externalities created by the wire- The municipal sale of zoning rights for tower construction less systems. ]vioreover, if operators . to price their services to reflect the nega- would enable a community, and thus its residents, to be tive externality costs currently borne by others, the allocation of societal resour- compensated fOr the negative externalities that may derive · ces to this burgeoning industry would be from cell towers' existence, reduced to a more efficient level. · Dr. McDonough i~ a Profe~or of Econ- ties that have approved the construction selling zoning rights is thc most efficient omi~ at the Univer~i~/ofMavsachu~e~t~- of towers. Concern over cell towers has economic solution, the outright sale of Lowell. She al~o serv~ ay Clerk oftlu~ led to the formatioh of organizations such regulator/approval raises legal qUcstious, dndover, ~ Zoning Board of~ppeals. as the Cellular Tower Coalition (CTC), Still, a city or town might achieve a which advocates increased local control similar economic outcome, while avoid- Notes I. The Telecommunications Act of 1~)6, Se~. 704. . over tower siting, monitors relevant ins legal confrontations, by leaving apace Facilities Siting; l~dio Frequency Emission Stds. legislation, and maintains a Web site owned by the municipality to PCS oper- 2. Colwell, Peter F. "Tender Memice: Efficient for the di~eminatiou of information, ators for the construction of.towers. The and Equitable Land Use Change,".qe~a ta,,,te It'is certainly possible to infer that centralized locations of publicly owned ~onomics 2S(4), Win~ 1997, pp. transmission towers impose negative buildings could prove ideal for the siting ~. Mills, David E., "The Price ~ E~tate/.ether 50), Summer 1991, pp. !-4. externalities on property values, if not of wireless transmitters. Municipally- 4. Colwell, Pet~ F.,"Power Lines & Land Value," neoessarily on human health. Available owned.access strips adjacent to streets .L ofae~l ~t ~. S(l~.Spdn~ 1990, pp. ! 17-127. evidence relates to the siting of electric and highways would be other possible s. Gregory, Robin and Detlof yon Winterfeidt, "The Effects of Eleclronmgneti~ Finlds from Tram- power lines, which admittedly involve sites for the placement of cell towers, mi.~ion Lines on Public Fern & hope~ Values," higher voltage electrical transmission Several localities have already con- ~. of Environing-ual Mst. 48, 1996, pp. 201-214. than do cell towers. COIwcli's 1990 sidercd "renting" out municipal space for 6./~td. article in the Journal of Real F~mte cellular towers. Prince Georges County, 7./bid. Research~ reports that proximity to MD plans to charge rent to telecommnni- Author towers supporting transmission lines cations firms for putting towers on public ~. reduces property values, a finding that land. In Illinois, the Warrenville village is corroborated by thc 1993 work of council approved a permit to'allow aceil~ oaermat~U,~t~r~a~or.~d~,yO~aOdo Gregory and vmi WinterfeldL s ular transmitter on thc local water tower, ;l,,~. ,~e.~,,o,y c~,~fM,/a, o/~ Moreover, a 1993 ruling by'the New in exchange for benefits to thc village, York State Court of AppealP (along with although nearby Naperville rejected plans : ~'p~.~,g/~ ~ ~.~e ~a~ ~ a similar ruling in/Comb v. City of Sante to install cellular antennae on a local post ~,,**,~,~er~o Fe)~ supports the idea ora stigmatization office and the Municipal Center, and ~ associated with power lines. Ruling for North Barrington home owners actually ,~,,, ~, ~ ~-/~o~ ~ ~ the plaintiff, the N~w York court did not sued local planning officials for approv- require proof that the power line posed a ing a cellular tower at the Village Hall. zm'rm ~t a~ ~ ~,~ ~a ~ Winter 1999 Illinois Real Estate i~tter page tv-l o TELECO~CATIONS LEASES. TELECOMMUNICATIONS LEASES Reprinted from Real Estate Finance Review, Winter 1997. by Jeffrey A. Moerdler, Member, Communications and Real Estate Sections, and David E. Bronston continued... · Creditworthiness of the Tenant Many of the large telecommunications companies now leasing these types of spaces are well- known and well capitalized, such as the "baby bells," Sprint and MCI; however, this field is developing so quickly that many of the new players are smaller companies withoUt significant track records and with most of their balance sheets invested in new equipment which is not yet generating cash flow. The landlord or lender must carefully analyze the creditworthiness of the t nant, its track record and its future stability in order to maximize the financeabilitY of these leases. Desirability of Use *' Early on in the process of leasing space to telecommunications tenant, the landlord must seriously consider whether this type of use is one thatwill be advantageous for the Property beyond the monetary impact of the rental income on the property's bottom line. One 'must also look at whether or not adding this type of use will have an adverse affect on the value of the property and the leaseability of other space at the property. For example, adding rooftop antennas visible from the street on the roof of a shopping centers will have a negative impact on the marketability of th property to future tenants who are always concemed with the image the Property conveys to passersby. On the other hand, the existence of rooftop antennas on the top of a forty story office building would have no adverse affect, whatsoever on the property. Environmental Concerns With the exception of large antenna towers,, all of the new technologies discussed above operate at very Iow power, generally 10-100 watts. They are not believed' to have any adverse health or environmental impact. There is, however, a significant psychological impact to these installations. Residents of apartment houses have recently been very vocal in their objections to the installation of rooftop antennas and communications closets with the properties where they reside. While th re app ars to be no definitive evidence of any adverse health or environmental impact resulting from these facilities, they do have a psychological impact and can reduce the marketability of the property in the same way that union picketing reduces the value of the stock in large companies involved in hostile labor negotiations. Larger antenna towers do, however, have serious potential health and environmental impacts at close range and various government regulations require fences, signage and other mechanisms to prevent One from injury.' Electricity and Other Utilities The availability of sufficient electricity and other utilities for any facility leased to a telecommunications company must be explored in advance. Generally, telecommunications companies will hire their own experts to evaluate a property under consideration and this will disclose any deficiencies early' on in the process. They will generally not require representations from landlords and, if necessary, will frequently add additional capacity to the building system where needed for their use at their own expense. Nonetheless, a landlord must be concerned with their usage requirements and. must be certain that they will not detract from the utility services available to other present and future tenants and that the tenant will pay all costs associated with their own usage. What Will the Future Bring? One need only look back five years to see how quickly telecommunications technology has http://emmetwork.org/siting/telecomleases.htm ~v-ll~ TELECOMMUNICATIONS LEASES .~ ,: .changed. It essentially imPossible to predict where technology will'be five or ten years from now. For these reasons, technology tenants will frequently require short leases with multiple renewal options or cancellations options as discussed above restricting the ability of landlords to lock in these additional sources of income for lengthy' periods of time. At the same time, a landlord must carefully watch who it takes on as a tenant since many-of today'S technology companies will not survive the next five years.. Although this is no 'different from the general credit risk landlords undertake on a daily basis, this field moves much faster than the traditional office and retail components with Which landlords are familiar. Physical constraints In addition to investigating the Utilities available for a telecommunications tenant, a landlord' must also look at the land and building to determine if they can support the necessary equipment. Some of the issues that require investigation are whether the roof of your building will sUpport the weight of an antenna and the associated rooftop'equipment or will structural supports be required, will this equipment adversely impact upon your roof warranty, how much of your roof is already utilized by existing antennas or other equipment and how much is available' for new equipment, will the new equipment cause "interference with any existing equipment, do you have the necessary riser space for the wiring which must be connected from the roof to utility and other building systems usually located on a mechanical floor or in the basement and is the necessary communications closet space available in a mechanical room or in the basement of the building. © Copyright 1998-2000 Jeffrey A. Moerdler and David E. Bronston All Rights Reserved.- http://emmetwork.org/siting/telecomleases.htm xv- 112 Attachment C Berjac Bulldin9 Appertdix A- Antenna Invento~ The fotlow~n8 antenna inventor), was util~cd to create the site model diasrams: Table 1: Antenna lnven~tory_ KnL~3na Operated By TX Freq. Power Antenna Kn---'--'"~enna Model Number (MHz) (ERP) Gain I CricKet Wireless 1895 1805.88W I5.4dBd - EMS RR-65-18-02 ,,, 2 CricKet Wireless 1895 1805.88W -15.4dBd EMS RR-65-18-02 3 CricKet Wireless 1895 1805.76W 15.4dBd EMS RR-65-18-02 4 CriCKet Wireless 1895 i 805.76W 15.4dBd ~ _EMS RR-65-18-02 5 CricKet Wireless 1895 1805.76W 15.4dBd EMS RR-65-18-02 6 CricKet Wireless 1895 1805.76W 15.4dBd EMS RR-65-18-02 ' 7 VoiceStream 1965 150W 10dBd Decibel DBgl0 8 VoiceStream 1965 ! 50W 10dBd Decibel DB910 .... 9 VoiceStream 1965 150W I 0dBd .... Decibel DB910 .. 10 VoiceStream 196.5 150W 10dBd Decibel DBgI0 11 Qwest' 1862 200w 7.9dBd Swedcom SP-9014 12 Qwest 1862 200W 7.gdBd " ' Swedcom SP-9014 13 . Qwest 1862 200W 7.gdBd Swcdcom $P-90 ! 4 14 qwest 1862 200W 7.gdBd Swedeom $P-901 ~, -- ' - 1'5 qwest 1862 200W 7.gdBd ..... _S .wcdcom SP-9014 .... 16 qwest 1862 200W 7.gdBd Swedcom 8P-9014 i Af07'£: I:'~r ,~,~ ..... '~ers ~' '";- -'o- ,L. use of "Generic" as an antenna model or "Llnknnwn "for an operator means the information with regard to carder, their FCC license and/or antenna ~ information was not availablenar could it be secured while on site. Equipment. antenna models and nominal transmit power were used for modeling, based on past experience with radio service providers. 200 N. Glebe R ad · Suite 1000 · Arlington, VA 22203.3728 703.276-t100 · Info(~sltesste. com IV-l13 ~ > Berjac Building EUG-024B Main Vie,~v ~V-l14 Berjac Building EUG-024B 6' Level J :'....~; SITE pLANNING - HAZARDS AND LIABILITIES OF WIRELESS TELECOMMIYNI Attachment D Battery, HnnFds SITE PLANNING - HAZARDS AND LIABILITIES OF WIRELESS TELECOMMUNICATIONS BASE STATION INSTALLATIONS This link contains URL's for articles from various industry and government web sites that discuss safety hazards and liability issues from wireless telecommunications installations. These include back-up battery problems including fire, explosion, and leaking of sulfuric acid as well as liability for RF interference with a variety of industrial, medical and home electronic equipment in the neighborhood and real estate property devaluation. These articles can help to build the "public safety" and "preserving property valUes'' arguments and provide "sub~antial evidence in a written record" to deny permits for wireless telecommunications facilities in close proximity to schools, homes, and day care and nursing home facilities such as on the community water tower, as well as those prolx~d for existing structures such as rooftops, historic structures and churches. The equipment shelter/hut that is required for tho operation of the antennas presents a clear hazard to the safety of the neighborhood. The cost of liability insurance to . cover all of these hazards along with decreases in property values should discourage churches and historic sites from hosting wireless facilities despite the promise of revenue from the wireless provider. BATTERY HAZARDS Several of the authorsofthese articles were asked to describe a typical battery array for a cellular or PCS base station supporting an antenna site. Typically there are 16 one hundred pound, Lead-Acid 48 voit batteries that aremost often filled with sulfi~ric acid. Their chemistry is similar to automobile batteries. There is some controversy as to whether the EPA regulation which requires notification of the presence of hazardous materials to local fire and safety authorities should apply. Sulfuric Acid is on the EPA list of"Extremely Hazardous Substances" and is present in an array of 16 batteries in sufficient amount to require this notification. As more and more antennas are sited on root~ops, in steeples, and in residential neighborhoods, notification becomes more critical. http://www.calicorp,com/articles/battcries-I~aTo rd~. hl mi Lead-Acid Battery N~?~rcls http://w~v, ncs, gOv/nS~hp/information_Assurance/HazScc2.h~ Web site of the National Communications System (NCS). In 1962 after the Cuban missile crisis, President Kennedy directed the National Security Council (NSC) to form this interdepartmental committee to examine the communications networks and institute changes. NCS keeps ongoing records of all ho?ords that have effected telecommunications systems in the United States. From this on-hne NCS Report - 2.0 NATURAL AND TECHNOLOGICAL HAZARDS: ' This section provides information concerning major natural and technological hazard threats to NS/EP telecommunications and supporting systems. 2.2.1.3 Experiential Data Prepcrties wholly dedicated .to computer or telecommunications activities are actually a comparatively small part of the U.S. fire problem. From 1990 to 1994, computer and data processing centers annually averaged 29 structure fires, no reported deaths, I injury, and $1.31 million in direct property damage. All communications, defense, and docmnent facilities combine - including defense radio and radar sites, police and fire communications centers, telephone exchanges, and document centers and record repositories- annually averaged 249 structure 'fires, no deaths, 6 injuries, and $7.21 million in direct property damage. The large problem actually occurs in electronic equipment roonts or areas where more than 1,000 structure fires are reported each year to U.S. fire departments. See section entitled "1994 Los Angeles Telephone Exchange Fire** and paragraph under Tuble 2-8 Causes of Fires at Telecommunications Facilities. http://www, tclecomclick,c, om Type in "A battery for all seasons?" in the SEARCH box. Click on GO. http :/ Iwww. calicow.com/adviso.ry.l~D] Advisory: Lead-acid Batteries hltp://www, telecomclick,com t¥-! 16 http://¢rnmetwork.org/siting/baschazards.htm 10/3 SITE PLANNING- HAZARDS AND' LIABILITIES OF WIRELESS TELECOMMUNI.. Page 2 of 3 Type in "Power Struggle: Battling over batte~ technologies" in the SEARCH box. Click on CK). htt0://www, zomeworks.com/t~h/H2t1-I2FAQ h!ml Hydrogen FAQ [This article discusses how complex proper venting of a batte~r shelter/room is. This ~ompany sells shelters as well as designs to properly vent existing shelters.] "What is the danga- of explosion during battery charging? Battery rooms and cabinets are notori°us for explosions when hydrogen created by electrolysis and mixed with oxygen is ignited by a spark. The proliferation of back up batteries at communications sites has spread the hazard from the private concern of the battery's users to the public at large. Battery cabinets, vaults, and rooms are now scattered like time bombs all around th world, many where explosion could injure or kill unaware bystanders. The danger is not imagined. Many vaults have exploded and recently a communications shelter in Yuma, Arizona, exploded shattering the windows of a neighboring house..." http://www, powerquality. C°m/art0060/artl.htm From the industry journal, PoWer Quality Journal. The. cogent point in this article is in the first paragraph: "... Most battery owners, including some of the biggest companies is. the country, do not follow IEEE recommeadations. They claim that the full program is too expensive. That is short-ta~m thinking and sooner or later they will pay for it." http://ww~v.calicorp.com/arti¢l¢~/open.house.html · Fire Department Safety Officers Association - "Open House" Battery Incident http://www.firehouse, c0m/newa/2000/6/l 4 APstate.html Fire Knocks Out State Department Phones http://www, wa. gov/ini/news/pt051800.btm AH telecommunications contractors must register with' Labor & Industry by June 8 http:/Av'~nv.telecomcl.ick, com Type "Powering wirele.~ telecom basestatious" in the SEARCH box. Click on "GO." http://www.osvmag.com/featur~1999/lO._olmo.htm H2-OhNo! Hydrogen Build-Up Can Cause Battery Cabinets to. EXPLODE · http://www.telecomclick,~m Type in "Flirting with disaster, in SEARCH box. Click on GO. http://wmw.calicow.com/arti¢l¢$/osha_ _special_equip.htm Electrical Safety Requirements for Special Equipment - OSHA Regulatory Profile - Special Equipment http://'www.calicorp,com/arti¢lea/batteries-buildings.h{ml Lead-Acid Batterie~ in Buildings gNVIRONMKNTAL HAZARI}$ OF BATrgRY Ci~MICAL$ http://www, calicom_.com/arti¢ies/osha-~rtides.html Industrial Lead-Acid Batterie~ Are Not Considered "Articles" http://www. Calicorp.com/epa__ne%_releaso. htm EPA News Release - Ten Telecommunications Companies Voluntarily Disclose and Con'ect Environmental Violations http ://es.e_~. gov/oeca/ore/enfal~rVvgl3 hum6. html EPA's "Audit Policy" Off'ets Opportunity for Teleconun,.,U. hi..'cations Industry to Remedy Violations IV-117 http://www.america'sne~ork.com/issu¢$/2000$upplemem, q20000915¢eJCC20000915_fin¢sprint, htm http://emmetwork.org/siting/basehazards.htm 10/30/0 . ~SITE PLANNING - HAZARDS AND'LIABILITIES OF WIRELESS TELECOMMUNi.. Page 3 of 3 Smart builders: The Fine(s) Print - EPA takes kindly to telecom companies that catch and report their own mistakes RADIO I~REQUENCY RADIATION LIABILITY ISSUES - RF IN THE NEIGI~RORHOOD hllP://www,telecomcli~k,~m Type in "The case for testing electromagnetic radiation at the mobile radio sites" in the SEARCH box. Click GO. From the United Kingdom-based web site of The Institution of Electrical Engineers. IEE represents the public, professional and educational inter~t of over 140,000 electrical, electronic and manufacturing e~gincers wOrld-wide. Key activities include publishing, the Organization of conferences, the maintenance of technical standar&, interaction with government departments and the provision of scientific and technical information services. http://www, iee.org, uk/P AB/EMC/core.htm lEE Guidance DoCUment on EMC (Electromagnetic Compatibility) and Functional Safety [From "Introduction and Purpose"] "One of the problems peculiar to all electronic technologies is electromagnetic (EM) interference. All ~lectrical and electronic technologies emit EM disturbances that can interfere with the correct operation of radio-communications or other electronics. Modem electronic technologies are in general more likely to cause such disturbances than those AH electronic technologies can also suffer from degraded fimctionality (including complete failure) when exposed to EM disturbances. Modem electronic technologies are in general more likely to be susceptible in this way than thos~ Electroni6 technology is increasingly used in safety-related applications. Consequently, errors and misoperation of electronic devices due to inadequate EMC can result in hazardous situations with an increased risk of harm to penple's health and safety." 'REAL ESTATE DEVALUATION . .http://www.appraisalinstitute.org/_oubs/ai0ub125.htm 'The Home Environmental Sourcebook: 50 Environmental Hazards to Avoid When Buying, Selling, or Maintaining a Home. Althoughpublished in 1996, it is currenily out of print. Try to bon'ow a copy fxom your state's Appraisal Board's library. Wireless base statioas are included in the list of 50. htto ://w~nv.abanet.org/publicserv/envguide html 1998 American Bar Association Annual ~ - Environmental Law Activities Session on Monday, August 3, 1998 - Stigmas, Contamination and the Environment: Their Influence on Propet~y Valuation for Tax Purposes. Microwave and cellular towers are included in the list of stigmas. IV-ll8 http://emmetwork.org/siting/basehazards.htm 10/30/01 Attachment lane Code 4.700(2) Lane Code 14.700(3) · (c) ' The Approval Authority who reviews the application for the modification of conditions shall be the same Approval Authority who made the final land use decision. (d) An excepti°n to subsections Co) and (c),in this paragraph is an application for an extension of the developmentperiod. Approval of an extension shall be done by the Director and is not subject to appeal. The Director may grant an extension subject to compliance with the following requirementS: (i) The Director determines that the applicant was unable to begin or continue development during the approval period for reasons for which the applicant was not responsible; (ii) One extension period may be granted for up to twelve months; and · (iii) Additional one-year extensions may be authorized where applicable criteria for the decision have not changed. "..~ (3) . Revocation or Suspension. (a) The Director may suspend or revoke approval of an application which was initially reviewed and approved or denied pursuant to LC 14.100 above and/or approved upon appeal. When ' taking such action, the Director shall follow LC 14,100(3) and (4) above in giving notice and addressing one or more application conflicls with the following criteria: (i) The site has been developed in a manner not · authorized by the approval of the application; (ii) The applicant has not complied with the conditions of .~the approval; ' (iii) The applicant has secured the approval with false or misleading information; or (iv) The application was ~pproved in error. The Director's decision to suspend or revoke approval is appealable to the Hearings Official in the same manner pwvided/n LC 14.500 above for appeals to the Hearings Official. 16-83; 9.14.83 14-33 WP l/co/OO029fr 10-89; 10.4.89 4-96; 11..29.96 ZV-ll9 :~ Attachment F ----' ' Excerpt From FCC Fact Sheet "-~ ~ FEDERAL COMMUNICATIONS COMMISSION WIRELESS TELEC~NICATiONSBU =REAU 2o2s M S~ ~W., Wash~r~on, ~C ~0SS~ FACT SHEET//2 SEFTEJV//~R 17, 199~ NATIONAL WIRELESS FAClLmES SITING POIJClES -I ~¢ T¢ler,,ommurdc~om .-x~ of 1996 (th~ 1996 ~) ~~ ~1~ ~~ S~e ~ I~ ~ ~ ~ ~ ~ cl~ly m~lis~ a ~~ f~ ~ ~ ofj~~ ~ ov~ ~e ~~~ ~~ ~ p~ of ~iti~ ~e n~ law ~ ~ ~ C~i~ m off= · ~ gov~~ ~ ~~ ~~ ~~ ~ ~ di~~ of ~~ ~ m ~ e~ of ~ av~i~ili~ of ~ ~ ~ ~ ~ Fa~ ~ ~ ~ of f~ ~: gov~8 ~ ~!~ ~~ ~.~ 1, 1~, ~ ~ f~ IV-120 . . . .. ,., Fr~,q n'~y. m~tom o~ technically or octmormc::m.llv ...roole,.mn¢. Addiuonally, becaus~ collocation m'ot.q:,s rrmn- -:--..- -; - ' s.vuc,'urt collocaz' . . , _ - ... . z ~,,,~,~ ut .cqmprne~ on a ., !. ~, . ton rrmy r~.tlt tn larg, cr ma mom ooo-umv¢ md '-.",.s~mtlv sm~.~.:.. .-,-' .,.umpl~ disc-r~e mstalla, tion~ of' indivi~,,,! ~tmnas ~:l ~'ansu~ers. ' ' u..--~ .._, It should also .in_,rn~. tfaz person, witele:~ s~47 providers are tim'ct :ha~ ..re.often c~plo, mS me tu~. co~al use of a pamcular ~1o~..~ a · providers may be 5unwilling to share their siting plans, particularly ac~,~l site Iocanor~ F~-~_.~,~e th.ey consid?. ~ plans propriecm-y business infom'~oe,, or they ~ ~ rcluc'..~t ~0 en__m~, m ~. msc~..~or~ with tim' r. orr~,:,~ ~ sitin~ ~ such e. or, d,~ rc v~cw~ as mnn~tive. . atp oymc~ ~~ may bc .{>,. ,. ,,~a uu.~ u~ty r~vc tmpcc~cmele ¢I:1'CC0 oo scrvi~ ~ ~ cOv~ Al: tl~ k~,~°ca mmng aaixx-idcs for clevdoping ovctaU zorting pLms fcr pcrso~ wL~icss facili-~- ~pueanon tar a nctl~ ~ ~ a'-~ ~ ~ ~ Tlz C..mts't:~ o£ a pcrstx~ wiz~less fmility invoh~ m zm~n~ va-im~ c~ a pub~ l.~dng ~ ~ ,.ny btt ~ ~,mR'tll:), mpp&nbh ~ frmm~ ~ ~ da=isiof ,.he ~c~n~ ot'~ ~ aN:,pti,~:i~s in ~ of m inctam tn a~Ucaziom rot- gt'n~rally ~ th~ mctm:t~ (especizlty d'w:me trig. are ~ ct rmu-wabie) cause 9 IV-121 Attachment (~ Lane County code 16.264 ' i Brief History Of Lane County TELECOMUNICATION TOWER STANDARDs RURAL COMPREHENSIVE PLAN The attached document was provided'to me by Kent Howe, .Planning Director of Lane County Land Management Division~ 'This ordinance was approved in.April of 2002 by a four to one vote. As the Board recommended amendments to the ordinance at the same public hearing, the one dissenting commissioner thought a final vote should wait until the amendments could be incorporated into the body of the proposed ordinance. The remainder oFthe Board felt it should be passed as presented with amendments to be made subsequently..~ 'This document is the ordinance with the Lane County Planning Commission's recommended.changes (as directed bYthe Board at the April hearing) in legislative format. Another public hearing on these amendments was held September 25, 2002. For the sake of clarity, our group made a suggestion for a change in LC 16.264 (5)(e). The Board has taken this suggestion under advisement and action will be taken October 15~ or 16t~. Other issues raised are to be remanded backto the Planning Commission. However, the final product will be an ordinance that will put Lane County in the forefront of meaningful ordinam~es in Oregon. Citizens for Responsible Placement of Cell Phone Transmission Towers Update January 2004:' The final version of Lane County code 16.264 is attached. It was adopted unanimously October, 2002. 'At that time it was .recommended this code section be reviewed and is now scheduled for review by the Lane County Planning Commission under long range planning. I~-122 16.264 Lane Code .16.264 administrative civil penalty. Continued failure to comply with this chapter 10 days from ' the mailing of the notice of the failure to comply by registered or certified mail to the last ' known address of the alleged responsible person or after personal service, and continued failure to comply after an order has been entered constitutes a separate failure to comply for each day the occurrence continues. The Manager of the Lane County Land Management Division, Department of Public Works, or said Manager's duly authorized representatives, shall have the authority to issue a notice of failure to comply. (Revt~ed by Ordinance 3Io. 7-87, F~ffective 6.17.87; 1-93, 4.16.93) TELECOMMUNICATION TOWER 'STANDARDS RURAL COMPREHENSIVE PLAN 16.264 Telecommunication Tower Standards. (1) Purpose. The provisions of this section are intended to ensure that telecommunication facilities are located, constructed, maintained and removed in a manner that: (a) Recognizes the public need for provision of telecommunication facilities; (b) Allows appropriate levels of service to be obtained throughout the County; (c) Minimizes the number of transmission towers throughout the County; (d) Encourages the collocation of telecommunication facilities; and (e) Ensures that all telecommunication facilities, including towers, antennas, and ancillary facilities are located and designed to minimize the visual impact . on the immediate surroundings and throughout the county. Nothing in this section 'shall . preclude collocation opportunities nor adversely affect multiple use towers. Nothing in this section shall apply to amateur radio antennae, or facilities used exclusively for the .transmission of television and radio signals; however, these uses are not exempted from applicable provisions in other sections of the code, including the requirement to Obtain a conditional use permit to construct transmission facilities or modify existing installations. (2) Definitions. As used in LC 16.264, the following words and phrases mean: Ancillary_ facilities. The buildings, cabinets, .vaults, closures and equipment required for operation of telecommunication facilities including but not limited to repeaters, equipment housing, and ventilation and other mechanical equipment. Antennae. An electrical conductor or group of electrical conductors that transmit or receive radio signals, excluding amateur radio antennae. Attachment. An antenna or other piece of related equipment affixed to a transmission tower. Collocation. Placement of an antenna on an existing structure or building where the antennas and all supports are located on the existing structure or building. Provider. A person in the business of designing and/or using telecommunication facilities including cellular radiOtelephones, personal communications services, enhanced/specialized mobile radios, and commercial paging services. Telecommunication Facility. A facility designed and/or used for the purpose of transmitting, receiving, and relaying voice and data signals from antennae, towers and ancillary facilities. For purposes of this section, amateur radio transmission facilities and facilities used exclusively for the transmission of television and radio signals are not "telecommunication facilities." Transmission Tower. The m0nopole or lattice framework designed to support transmitting and receiving antennae. For purposes of this section, amateur radio mmsmission facilities and facilities used exclusively for the transmission of television and radio signals are not 'itransmission towers." 16-455 WI) 1/c/00056.Chapter16.250-264/T IW-123 16,264 Lane code 16.264 (3) A0plication, Information a~n_d Processi~n~ Recmirements. A new or replacement telecommunication facility may be allowed provided an application is submitted for Director approval pursuant to' LC 14.050, the application complies with the requirements specified in LC 16.264(3)-(6) below, and provided the application is approved pursuant to the requirements of LC 14.300 for a hearing with the Director. Notice of the hearing shall be provided pursuant to the requirements of LC 14 and to the owners of property within one half-mile radius, of the exterior boundaries of the subject property and any property contiguous to and in the same ~wnership as the subject property. (Maintenance and repair of lawfully (per LC Chapter 16) existing uses and development is considered a permitted use.) (a) Prior to submission of an application, the applicant shall provide notice and hold a meeting with area property owners as required in LC 16.264(3)(a)(i)-(iii), below. The applicant shall submit evidence of the notification and meeting with the application. The application shall include evidence of compliance with this requirement. (i) The applicant shall, at least fourteen (14) days but not more than thirty (30) days in advance of the'meeting, mail notice of the meeting to property .owners and tenants living on property that would otherwise be notified pursuant to the requirements of LC 14.100 and to the applicable community organization recognized by the Lane County Board of Commissioners in Lane Manual 3.513 within the area in which the proposed site is located. The notice shall state the date, time, and location of the meeting and that the topic of the meeting is to discuss the proposed location of a telecommunication facility on the subject property and to hear from area residents about any concerns they might have with the proposal. The notice shall state the Lane County map and tax lot numbers for the subject property and the address for the subject property. (ii) The applicant shall, at least ten (10) days in advance of the ' meeting, publish notice of the meeting in a newspaper of general circulati°n serving the area. The published notice shall contain at least the same information as required by LC 16.264(3)(a)(i) above for the mailed notice. (iii) The applicant shall conduct a meeting within the general area of the proposed location of the telecommunication facility with the area property owners, tenants living on surrounding properties and interested parties to discuss the proposed application to allow community concerns regarding the proposed tower to be addressed. Nothing in this subsection limits the applicant from providing additional opportunity for input from area property owners and residents. (b) An application shall include the following information: '(i) A description of the proposed tower location, design and · height. When the proposed tower location is Within 14,000 feet of an airport, the applicant shall show the tower height in relation to the imaginary surfaces for that airport and demonstrate that the tower does not penetrate those surfaces. (ii) The engineered design capacity of the tower in terms of the number and type of antennas it is designed to accommodate and constructed in such a manner as to optimize performance and minimize visual impact; (iii) Signature(s) of the property owner(s) on the application form or a written statement from the property owner(s) granting authorization to proceed with land use and building permit application; (iv) A signed statement from the property owner indicating awareness of the removal responsibilities of LC 16.264(7)(d); (v) Documentation in the form of lease agreements for the telecommunications facility that provide space for a minimum of three (3) users (the primary user and two (2) collocation sites); (vi) Documentation of lease agreements with a Federal Communications Commission (FCC) licensed provider; 16-456 'WI) l/c/O0056.Chapter16.250.264/T IV-124 16.264 Lane Code 16.264 (vii) Documentation demonstrating that the Federal 'Aviation Administration (FAA) has reviewed and commented on the proposal, and the Oregon Department of Aviation has reviewed and provided comment on the proposal. (viii) Plans showing-how vehicle access will be provided and documents demonstrating that necessary easements have been obtained; and (ix) Other information requested in the application form provided by the Director, such as but not limited to, peer review by an independent engineering firm of the proposed telecommunications facility system design. (e) The applicant shall identify all existing towers, or properties that have obtained approval for a tower within ten (10) miles of the proposed tower location. The applieant shall provide evidence that collocation at all existing or approved towers within ten miles is not feasible, and provide documentation for locating a new tower, based on either of the following: (i) Lack of useable and compatible collocation space; (ii) Inability to meet service coverage area and capacity needs; or (iii) Technical reasons such as channel proximity and inter- modulation. (d) The tower shall comply with all required State of Oregon and Federal licenses for telecommunication tower facilities. The application shall include a certification that the completed installation' Will comply with all Federal, state and local standards. The applicant shall submit documentation demonstrating compliance with non- ionizing electromagnetic radiation (NIER) emission standards as set forth by the Federal Communications Commission (FCC). (e) Factual information addressing compliance with requirements in LC 16.264 (4) and (5), below. ' (4) .Collocation Requirements for Telecommunication Facilities. Collocation of a telecommunications facility on an existing structure or building is not subject to the land use application and approval provisions of LC 16.264 (3). However, collocation of a new or 'replacement telecommunication facility may be allowed provided a land use · application is submitted pursuant to LC 14.050 and approved pursuant to LC 14.100. The application, for collocation may be allowed provided the requirements in LC 16.264(4)(a) and Co) are met. (a) An application for collocatiOn of a new or replacement telecommunications facility shall provide the information required inLC 16.264(3)(b)(i)- (ix) and (d). (b) Factual information addressing compliance with requirements in LC 16.264 (5) and (6), below. (5) Sitin~ Standards for Height, Setbacks and Access to Telecommunication · Facilities. The following standards shall apply to all new or replacement telecommuni- catiOn facilities. (a) Consideration shall be given to other sites in the service area that would have less visual impact than the site proposed as viewed from nearby residences and that the applicant has demonstrated that less intrusive sites are not available or do not provide the communication coverage necessary to provide the service. Visual impact can be measured by techniques including, but not limited to, balloon tests and photo simulations. (b) Telecommunication facilities shall be limited to the height necessary to provide the service, not to exceed 200 feet in height from ground level. (c) Directional / parabolic antennae shall be selected to optimize performance and minimize visual impact. (d) 'The setbacks for a tower shall be the setback otherwise allowed for all other structures in the zone except that: 16-457 WD l/c/00056.Chapter 16.250.264/T IV-125 16.264 Lane Code 16.264 ) (i) The tower shall be setback at least the height of the tower from an adjacent property line. (ii) A tract (contiguous property under the same ownership) shall. be considered as a single parcel for purposes of setbacks. .. (e). The proposed telecommunications tower is sited at least 1200 feet from nearby residences and schools not on the property owner/applicant's tract or as far away from nearby residences and schools as it is sited from the closest dwelling on the property owner/applicant's tract, whichever is greater. (f) If access is obtained from a private road, the applicant shall be responsible as required by Oregon law for providing for improvements and maintenance to the private road that provides access to the subject property. In general, the applicant is responsible for impacts to the private road as a result of activities conducted by the applicant. The applicant shall maintain all necessary access easements and maintenance agreements for the private road as required by State law. (g) In Forest zones, access from private roads and driveways shall comply with the Fire Safety Design Standards of LC 16.21 l(8)(e). (h) In Forest zones, a fuel break shall extend 50 feet in all directions surrounding ancillary facilities containing propane or gas powered generating facilities. Vegetation within the fuel break may allow low shrubs (less than 24 inches in height). Trees shall be spaced with greater than 15 feet between the crowns and pruned to remove dead and low (less than 8 feet) branches. Nonflammable materials (i.e., rock)'shah be · placed next to the ancillary facilities. (6) Standards for Construction, Lighting, Si~nage and Fencing of Telecommunication Facilities. The following standards shall apply to all new or replacement telecommunication facilities. - (a) The applicant shall submit 'a site-specific 'study of the tower Site )' identifying the proposed color and surfacing of the tower and associated fixtures. Based on the existing conditions and vegetation at the proposed Site, the tower must be constructed with material to reduce visibility of the tower by: (i) Use of non-reflective materials that minimize glare and are colored similar to the sky or adjacent background. A light gray shade is appropriate for blending the tower into the sky background. Nothing in this subsection preempts the coloring requirements of the Federal Aviation Administration or the Oregon Department of Aviation; (ii) Use of non-reflective materials painted to match the existing or attached structure to blend into the surrounding environment; and (iii) Antenna and associated equipment located on the same structure as the antenna shall be surfaced in a non-reflective material color to match the structure on which it is located. Co) An Oregon registered professional engineer shall certify that the construction of the tower complies with building code structural standards. (c) Prior to issuance of building permits for the tower, the applicant shall submit to the Building Official documentation from the Federal Aviation Administration, the Oregon Department of Aviation and any other local or state' agency with jurisdiction that the tower has been reviewed and is not determined to be a hazard if constructed as proposed~ (d) No lighting ti' communication facilities is allowed, except as required by the Federal Aviation Administration, Oregon Department of Aviation or other federal or state agency. Required lighting shall be shielded from the ground, to the extent practicable. Shielding of tower lighting onto nearby properties shall be installed as part of construction of the tower. ' ' ~ (e) Warning and safety signs, up to three square feet in area, are allowed. All other signs are prohibited. 16458 WD l/c/00056.Chapterl 6.250-264fr iv-126' 16.264 Lane Code 16.264 (f) Equipment areas must be enclosed by a chain link fence or equivalent with or without slats for screening. (7) permit Renewal and Expiration Requirements for Telecommunication Towers. (a) Approved applications for telecommunication towers shall be valid until December 31st of the year following the date of final Lane County approval and : shall be renewed every two (2) years, thereai~er. (b) Permit renewal is based upon the applicant submitting documentation that the telecommunications facility has complied with non-ionizing .electromagnetic radiation (NIER)emission standards as set forth by the Federal Communications Commission (FCC) and continues to meet any applicable conditions of approval by Lane County, including provision of an adequate current performance bond for removal of the facility and restoration of the site. (c) If a telecommunications tower is not constructed and placed into service within 2 years of issuance of an approved permit, the land use approval expires. (d) If the tower is discontinued from being used as a telecommunication facility fora period of one (1) year, the tower shall be removed. To insure removal of the telecommunication facility, the applicant shall, as a condition of the Special Use Permit, provide a performance bond payable to Lane County and acceptable to the Director to cover the cost of removal of the telecommunications facility and restoration of the site at the time the facility is removed.. The property owner shall be notified of the determination of discontinued use and the property owner Shall be responsible for removal of the telecommunication tower and equipment-facilities and Securing any required demolition permits within the six (6) months immediately following cessation of the operation of the telecommunication facility. The property owner shall bear the · ultimate responsibility for removal of the facilities and shall sign a document that is recorded in the deed history of the subject property with Lane County Deeds and Records recognizing such responsibility. Any SPecial Use Permit granted for the property will automatically expire upon removal. (Revised by Ordinance 4-02. Effective 4.10.02') 16459 WI) l/c/00056.Chapter 16.250-264/T IV-127 Attachment II Eugene Code 9.5750 J.$750 Telecommunication Devices.Siting Requirements and Procedur~c. (1) Purpose. The provisions of this section are intended to ensure that telecommunication facilities are located, installed, maintained and removed in a manner that: (a) Uinimizes the number of transmission towers throughout the community; (b) Encourages the collocation of telecommunication facilities; (c) Encourages the use of existing buildings, light or utility poles or water towe. rs as opposed to construction of new telecommunication towers; (d) Recognizes the need of telecommunication providers to build out their systems over time; and (e) Ensures that all telecommunication facilities, including towers, antennas, and ancillary facilities are located and designed to minimize the visual impact on the immediate surroundings and throughout the community, and minimize public inconvenience and disruption. Nothing in this section shall apply to amateur radio antennas, or facilities used exclusively for the transmission of television and radio signals. (2) Siting Restricted. No telecommunication facility, as defined in this land use code, may be constructed, modified to increase its height, installed or otherwise located within the city except as provided in this section. Depending on the type and location of the telecommunication facility, the telecommunication facility shall be either an outright permitted use, subject to site review procedures, or require a conditional use permit. (a) Outright Permitted Uses. No land use permit is required for a telecommunication facility which, pursuant to sUbsections (3) through (5) of this section, is an outright permitted use. Such a telecommunication facility shall require only a development permit or permits. (b) Site Review. ^ telecommunication facility which, pUrsuant to subsections (3) through (5) of this section, is subject to site review shall be processed in accordance with the site review procedures of this land use code. The criteria contained in this section, as well as the criteria contained in. EC 9.8440 Site Review Approval Criteria - General, shall govern approval or denial of tl~e site review application. In the event of a conflict in criteria, the criteria contained in this section shall govern.~ No development permit Shall be issUed prior to · completion of the site review process, including any local appeal. (c) Conditional Use Permit. A'telecommunication facility which, pursuant to subsections (4) or (5) of this section, requires a conditional use permit shall be processed in accordance with the conditional use permit procedures of this land use code, except that the variance provisions shall not apply. The criteria contained in EC 9.8090 Conditional Use permit Approval Criteria - General and subsections (6) and (7) of this section shall govern approval or denial Of IV-~28 the conditional use permit application. In the event of'a conflict in criteria, the criteria contained in subsections (6) and (7) of this section shall govern. No development permit shall be issued prior to completion of the conditional use permit process, including any local appeal. '(3) Collocation of Additional Antennas on Existing Transmission Tower; (a) Permitted Use. Collocation of an additional antenna on an existing transmission tower shall be considered an outright permitted use if property is zoned GO, PL, $, C-2, C-3, C-4, I-1, I-2, or I-3 or if the transmission tower is in any other zone and the city specifically approved, as part of a prior land use process authorizing the transmission tower, collocation of additional antennas. (b) Site Review. Collocation of an additional antenna on an existing transmission tower shall be Subject to site review approval if property is zoned AG, I:{-1, C-1 or PRO and approval for collocation was not granted through a prior land use process. (4) Collocation of Antennas on Existing Buildings, Light or Utility Poles, and Water Towers. In addition to collocation on a transmission tower, an antenna may be collocated on existing buildings, light or utility poles, and water towers. (a) Permitted Use. Such collocation on a building, light or utility pole, or water tower, shall be considered an outright permitted use provided that the antennas and ancillary facilities comply With the standards contained in EC 9.5750 Telecommunications Devices-Siting Requirements and Procedures, the color of the antennas blends in with the eXisting structure and surroundings, and one of the following is met: 1. The property is zoned PL, C-2, C-3, C-4, R-4, I-1, I-2, or I-3 and the antennas do not exceed the height limitation of the zone; or 2. The property iszoned AG, R-l, R-2,'R,3, C-1, GO, S, H, or PRO, and the antennas extend no more than 18 feet above, and project no more than 2 feet horizontally away from the existing structure. (b) Site Review. Such collocation on a building, light or utility pole, or water tower' shall be subject to site review approval provided that the antennas and ancillary facilities comply with the standards contained in EC 9.5750 Telecommunications Devices-Siting Requirements and Procedures, the color of the antennas blend in with the existing structure and surroundings, and: 1. The property is zoned AG, R-l, R-2, R-3, C-1, GO, S, H, or PRO, and the antennas extend more than 18 feet above, or project more than 2 feet horizontally away from the existing structure. (c) Conditional Use Permit. In all cases other than those listed in subparagraphs (a) and (b), such collocation shall require a conditional use permit. No exceptions to the standards contained in EC 9.5750 Telecommunications Devices-Siting Requirements and Procedures shall be permitted except as authorized by subsection (9) of this section. In no event shall a conditional use permit authorize a tower or antennas to exceedthe height limitation for a zone as established by Chapter 9 except as provided for in this section. ($} Construction of Transmission Tower. Construction of a transmission tower, or a ., i 'modification of an existing transmission tower to increase its' height, shall be allowed as follows: (a) Permitted Use. 1. Such construction or modification shall be considered an outright permitted use in the C-4, I-1, I-2 and .I-3 zone. 2. Modification to increase the height of an existing transmission tower shall be considered an outright permitted use in all other zones if the city approved an increase in tower height, as part of a prior land use process authorizing the transmission tower. The increase in height allowed under this paragraph shall be limited to the specific height authorized in the prior land use process. (b) Site Review. Such construction shall require site review approval in the PL, C-2, and C-3 Zones. (c) Conditional Use Permit. Such constructionShall require a conditional use permit in the R-l, C-I,.S and GO zones. (d) Prohibited Zones and Locations. No new transmission tower shall be permitted in any zones not included in subparagraphs (a) to (c) above, including the AG, R-2, R-3, R-4, 'H, NR, and PRO zones; or in the Willamette Greenway, on Gillespie Butte above the elevation of 450 feet, on the ridgeline as defined in the South Hills Study or on Judkins Point. (6) Application Requirements. (a) Collocation of Antennas. In additiOn to standard required applicatiOn material, an applicant for collocation of antennas shall submit the following information; additional application material is required, as specified in paragraph (c) below, for applications requiring a site review or conditional use process. 1. A description of the proposed antennas location, design and height. 2. Documentation demonstrating compliance with non-ionizing electromagnetic radiation (NIER) emissions standards as set forth by the Federal Communications Commission (FCC) particularly with respect to any habitable areas within the structure on which the antennas are co-locating on or in Structures directly across from or adjacent to the antennas. 3. A statement documenting that placement of the antenna is designed to allow future collocation of additional antennas if technologically possible. IV-130 4. Documentation that the ancillary facilities will not produce sound levels in excess of those standards specified in subsection (7)(f) of this section, or designs showing how the sound is to be effectively muffled and reduced pursuant to those standards. 5. Plans showing the connection to utilities/right-of-way cuts required, ownership of utilities and easements required. 6. Documents demonstrating that necessary easements have been obtained. ~ 7. Plans showing how vehicle access will be provided. 8. Signature of the propertY owner(s) on the application form or a statement from the property owner(s)'granting authorization to proceed with development permit and land use processes. 9. If ancillary facilities will be located on the ground, a landscape plan drawn to scale showing proposed and existing landscaping, including type, spacing, size and irrigation methods. 10. Documents demonstrating that the FAA has reviewed and approved the proposal, and the Oregon Aeronautics. Division has reviewed the proposal. Alternatively, when a site review or conditional use process is required, submit a statement documenting that notice of the proposal has been submitted to the FAA and Oregon Aeronautics Division. The site review or conditional use process may proceed and approval may be granted for the proposal as submitted, subject to FAA approval. If FAA approval requires any changes to the proposal as initially approved, then that initial .approval shall be void. A new application will need to be submitted, reviewed and approved through an additional site review' or conditional use process. No development permit application shall be submitted without documents demonstrating FAA review and approval and Oregon Aeronautics Division review. (b) ConstrUction of Transmission Tower. In addition tO standard required application material, an applicant for a transmission tower shall submit the following information; additional application material is required, as specified in paragraph (c) below, for apPlications requiring a site review or conditional use process: 1. A description of the proposed tower location, design and height. 2. The general capacity of the tower in terms of the number and type of antennas it is designed to accommodate. 3. Documentation demonstrating compliance with nOn-ionizing electromagnetic radiation (NIER) emissions Standards as set forth by the Federal Communications Commission (FCC). 4. A signed agreement, as supplied by the city, stating that the IV-131 applicant will allow collocation with other users, provided all safety, structural, and technological requirements are met. This agreement shall also state that any future owners or operators Will allow collocation on the tower. 5. Documentation that the ancillary facilities will not produce sound levels in excess' of those standards specified in subsection (7) of this section, or designs shoWing howthe sound is to be effectively muffled and reduced pursuant to those standards. 6. A landscape plan drawn to scale showing propOSed and existing landscaping, inclUding type, spacing, size and irrigation methods. 7. Plans showing the connection to utilities/right-of-way cuts required, ownership of utilities and easements required. 8. Documents demonstrating that necessary easements have been obtained; 9. Plans showing how vehicle access will be provided; 10. Signature of the property owner(s) on the application form or a statement from the property owner(s) granting authorizatiOn to proceed with development permit and land uSe processes; 11. Documents demonstrating that the FAA has reviewed and approved the proposal, and Oregon Aeronautics Division has reviewed the propOsal. Altematively, when a site review or. Conditional use process is required, submit a statement documenting that notice of the proposal has been sUbmitted to the FAA and Oregon Aeronautics. Division. The site review or conditional use process may proceed and approval may be granted for the proposal as submitted, subject to FAA approval. If FAA approval 'requires any changes to the proposal as initially approved, then that initial approval shall be void. A new application will need to be submitted, reviewed and approved through an additional site review or conditional use process. No development permit application shall be submitted without documents demonstrating FAA review and approval and Oregon Aeronautics Division review. (c) Site Review and Conditional Use Permit Applications. In addition to the application requirements specified in paragraph (b) above, applications for site review or conditional use permits also shall include the following information: 1. A visual study containing, at a minimum, a graphic simulation showing the appearance of the proposed tower, antennas, and ancillary facilities from at least 5 points within a 3 mile radius. Such points shall be chosen by the provider with review and approval by the planning director to ensure that various potential views are represented. 2. Documentation that alternative sites within a radius of at least 2000 feet have been considered and have been determined to be technologically unfeasible or unavailable. For site revieWs, alternative sites zoned C-4, I-1, I-2, and I-3 must be considered'. For conditional use permits alternative sites zoned PL, C-2 and C- 3, C-4, I-1, I-2, and I-3 must be considered. 3. Evidence demonstrating collocation is impractical on existing tall buildings, light or utility poles, water towers, existing, transmission towers, and existing tower facility sites for reasons of structural support capabilities, safety, available space, or failing to meet service coverage area needs. 4. A current Overall system plan for the city, showing facilities presently constructed or approved and futura expansion plans. 5. A statement providing the masons for the location, design and height of the proposed tower or antennas. (7) Standards for Transmission Towers and Antennas. Installation, construction or modification of all transmission towers and antennas shall comply with the following standards, unless a variance is obtained pursuant to the pm visions of subsection (9) of this section: (a) Separation Between Transmission Towers. No transmission tower may be constructed within 2000 feet of any pm-existing transmission tower. Tower separation shall be measured by following a straight line from the portion of the base of the proposed tower which is closest to the base of any pm-existing tower. For purposes of this paragraph, a tower shall include any transmission tower for which the city has issued a development Permit, or for which an application has been filed and not denied. Transmission towers constructed or approved prior to February 26, 1997 may be modified to accommodate additional providers consistent with provisions 'for collocation in this section. (b) Height Limitation: Transmission tower heights shall be governed by this section except as provided for below. No transmission tower shall exceed the maximum heights provided below. In no case shall a variance begranted from the limitations of subparagraphs (1) through (4) below. 1. In any zones, no transmission tower shall exceed the height limitations established for.buildings and structures in the specified areas surrounding Skinner Butte contained in EC 9~6715 Height Limitation Areas of this land use code to protect views to and from 'Skinner Butte. 2. In any zone within the area east of Willagillespie Road, south of Cai Young Road, west of Oakway Road, and north of Southwood Lane and Country Club Road, no transmission tower shall exceed 75 feet in height to protect views to and from Gillespie Butte. 3. If located within a PL, C-2, C-3,' C-4, R-4, I-1, I-2 or I-3 zone, the height limitation, for that zone shall apply. ~ 4. If located within an C-1, S or GO zone, the maximum height of a transmission tower, including antennas, is 100 feet. IV-133 5. If located within an R-1 zone, the maximum height of a - transmission tower, including antennas, is 75 feet, unless a ' variance is granted pursuant to the provisions of subsection (9) of this section. In no event shall a variance be granted to construct such a tower in excess of 100 feet. (c) Collocation'. New transmission towers shall be designed to accommodate collocation of additional providers: 1. New transmission towers of a height of 80' feet or more shall be designed to accommodate Collocation of a minimum of 2 additional providers either outright or through future modification.to the tower. 2. New transmission towers of a *height of at least 60 feet and no more than 80 feet shall be designed to accommodate collocation, of a minimum of 1 additional provider either outright or through future modification to the tower. (d) Setback. The following setbacks from adjacent property lines and adjacent streets shall be required unless a variance is granted pursuant to the provisions of subsection (9) of this section: · 1. If located within a PL, S, C-2, C-3, C-4, I-1, I-2, Or 1,3 zone, no setback from adjacent property lines shall be required beyond that required by this land use code or the provisions applicable to.the S zone. 2. If located within an R-l, C-1, or GO zone, the transmission tower .shall be set back from adjacent property lines a minimum number of feet that is equal to the height of the transmission tower. 3. In the R-l, PL, C-1 and GO zones, transmission towers shall be set back from adjacent public street(s) a minimum number of feet that is equal to the height of the tower. In all other zones, the setback from adjacent public streets shall be a minimum of 25 feet. (e) Buffering. In all zones, existing vegetation shall be preserved to the maximum extent possible. In the C-4, I-1, I-2 and I-3 zones, no buffering is required beyond that required by this land Use code. In all other zones, landscaping shall be placed completely around the transmission tower and ancillary facilities located at ground level except as required to access the facility. Such landscaping shall consist of evergreen vegetation with a minimum planted height of 6 feet placed densely so as to form a screen. LandscaPing shall be compatible with other nearby landscaping and shall be kept healthy and well maintained. (f) Noise Reduction, In R-l, R-2, R-3, R-4, C-1, and GO and in 'all other zones when the adjacent property is zoned for residential use or occupied by a dwelling, hospital, school, library, or nursing home, noise generating equipment shall be sound-buffered by means of baffling, barriers, o1' other suitable means to reduce sound level measured at the property line to 45dBa. (g) Status of Location. No permit may be issued for the location of a newIV-134 telecommunications facility within an R-1 or C-1 zone unless the lot on Which it is to be placed is vacant or developed with a non-residential use .at the time the permit application is sUbmitted. This restriction does not apply within other zones. : - (h) ~. NO lighting shall be permitted on transmission towers except that required by the Federal Aviation AdminiStration, No high intensity white lights may be located on transmission towers in an R-l, C-1, or PRO zone. (i) Color. The transmission.tower and attached antennas shall be unpainted galvanized steel or painted neutral colors or such shades as are appropriate and compatible with the surrounding environment, as apprOved by the city. (j) Viewshed. The transmission tower shall be located down slope from the top of a ridgeline so that when viewed from any point along the northern right-of- way line of 18th Avenue, the tower does not interrupt the profile of the ridgeline or Spencer's Butte. In addition, a tranSmission tower shall not interrupt the profile of Spencer Butte when viewed from any location in Amazon Park. Visual impacts to prominent views of Skinner Butte, Judkins Point, and Gillespie Butte shall.be minimized to the greatest extent possible. ApProval for location of a transmission tower in a prominent view of these Buttes shall be given only if location of the transmission tower on an alternative site is not possible as documented by application materials submitted by the applicant, and the transmission tower is limited in height to the minimum height necessary to provide the approximate coverage the tOwer is intended to provide. (k) _Display. No signs, striping, graphics or other attention getting devices are permitted on the transmission tower or anCillary facilities except for warning and safety signage with a surface area of no more than 3 square feet. Such signage shall be affixed to a fence or ancillary facility and the number of signs is limited to no more 'than 2. (8) Standards for Ancillary FaCilities. All ancillary facilities shall comply with the standards of subsections (7)(e) and (7)(f) of this section. In addition, all ancillary facilities within an R-l, PL, C-1, GO, and PRO zone must be located underground to the maximum extent teChnology allows, unless a variance is obtained pursuant to the provisions of subsection (9) of this Section. This restriction does not apply within other zones. (9) Variance. (a) Any variance to the requirements of this section shall be granted only pursuant to the following provisions. The criteria for granting a variance shall ' ' be limited to this section, and shall not include the standard variance criteria beginning at EC 9.8750 P__urpose of Variances. (b) The city may grant a variance from the provisions of subsection (7)(a) of this section providing the applicant demonstrates that: 1. It is technologically impossible to locate the proposed tower on available sites more than 2,000 feet from a pre-existing transmission toWer and still provide the approximate coverage the tower is intended to provide; 2. The pre-existing transmission'tower that is within 2,000 feet of ' the proposed tower cannot be modified to accommodate another provider; and 3. There are no available buildings, light Or utility poles, or water ' towers on which antennas may be located and still provide the approximate coverage the tower is intended to provide. (c) The city may grant a variance to the setback and undergrounding requirements of subsections (7)(d) or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. (d) The city:may grant a variance to the 75 foot height limitation in the R-1 zone to a maximum of 100 feet providing the applicant demonstrates that a transmission tower taller than 75 feet will directly eliminate the need for 1 or more additional transmission towers in an R-t zone. (e) If the proposed transmission tower or ancillary facility requires site revieTM or a conditional use permit, the request for variance shall be considered as part of the site review or conditional use .permit process. If the proposed transmission tower or ancillary facility is an outright permitted use, the request for a variance shall be processed pursuant to Type II application procedures beginning at EC 9.7200 General Overview of Type II Application Procedures except that the decision shall be based on the criteria in this section. (10) Removal of Facilities. (a) All transmission towers and antennas shall be removed by the person who. constructed the facility, by the person who operates the facility, or by the property owner, within 6 months of the time that the facilities have ceased being used to transmit, receive or relay voice and data signals to or from wireless communication devices. The city manager may grant a 6-month ·extension where a written request has been filed, within the initial 6-month period, to reuse the tower or antennas. (b) If a transmission tower is located within an R-l, PL, C-1 or GO zone, the provisions of sUbparagraph (a) also shall apply to the tower substructure and all above ground ancillary facilities. (c) The city may require the posting of an open ended bond before development permit issuance to insure removal of the transmission tower, substructure or antennas after the facility no longer is being used. (.11) Fees. Notwithstanding any other provisiOn of this code, the city manager may require, as part of application fees for building or land use permits for telecommunication facilities, an amount sufficient to recover all of the city's costs in retaining consultants to verify statements made in conjunction with the permit application, to the extent that verification . requires telecommunications expertise. (Section 9.5750, see chart at front of Chapter 9 for legislative history from 2/26/01 through 6/1/02.) 9.5800 Tempora~y..Activity_S_l~9._cja_.!.Deyelo_i~men_t Standards.. IV-136